← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
This Will Be Trump’s Best Term at the Supreme Court Yet
01:03:09
At the start of a “new” term that never really ended, a slew of cases could supercharge Trump’s American takeover.
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- [00:02]
Dahlia Lithwick
This podcast is brought to you by Progressive Insurance. You chose to hit play on this podcast today. Smart Choice make another smart choice with Auto Quote Explorer to compare rates from multiple car insurance companies all at once. Try it@progressive.com Progressive Casualty Insurance Company and affiliates not available in all states or situations. Prices vary based on how you buy.
- [00:31]
Limu Emu
Limu Emu and Doug Here we have the Limu Emu in its natural habitat, helping people customize their car insurance and save hundreds with Liberty Mutual. Fascinating. It's accompanied by his natural ally, Doug.
- [00:48]
Ian Millhiser
Uh, Limu is that guy with the binoculars watching us.
- [00:51]
Limu Emu
Cut the camera.
- [00:52]
Ian Millhiser
They see us. Only pay for what you need@liberty mutual.com Liberty Liberty Liberty Liberty Savings vary unwritten by Liberty Mutual Insurance Company and affiliates Excludes Massachusetts.
- [01:07]
Dahlia Lithwick
This is Amicus Slate's podcast about the law and the courts and the Supreme Court. I'm Dahlia Lithwick.
- [01:14]
Mark Joseph Stern
And I'm Mark Joseph Stern. Welcome to the United states Supreme Court's October 2025 term, which starts now.
- [01:23]
Ian Millhiser
We will hear argument this morning in case 23, Mr. Chief justice, and may it please the court.
- [01:30]
Mark Joseph Stern
They're back. The nine justices will start hearing arguments at 1 First street this coming first Monday in October.
- [01:38]
Dahlia Lithwick
And to be clear, in a lot of ways the nine never quite left the bench. They took their laptops on their vacations, some of them on their book tours, so they could continue to issue their emergency orders on the shadow docket virtually all summer long.
- [01:53]
Mark Joseph Stern
Those unargued, unreasoned rulings really are perfect for remote work, aren't they, Dalia?
- [01:59]
Dahlia Lithwick
They are. Can I have a mojito with that? But there are a bunch of big cases that are coming down the pike this term. And while we really want to promise you this isn't a curtain raiser episode in the traditional Supreme Court opening night jitter sense of those words, we do need to look ahead to what is coming on the merits docket to try to place it firmly in the context of what is happening all around us, both on the shadow docket and in the world. The stuff that doesn't make headlines.
- [02:30]
Mark Joseph Stern
And to remind you all that the Supreme Court made and continues to make the bed that American democracy must now lie in.
- [02:38]
Dahlia Lithwick
And yes, to be clear, that bed is on fire. And there is just nobody better than our friend Ian Millhiser to help with the explanation and maybe, I don't know, a water hose. Ian is a senior correspondent at Vox where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. Fun Beat Ian, welcome back.
- [03:01]
Ian Millhiser
Good to be here. Really looking forward to someday when I could take that last line out of my bio.
- [03:08]
Mark Joseph Stern
It'll be the restoration of liberal democracy one day in the near future. Right?
- [03:12]
Ian Millhiser
From your lips to God's ears.
- [03:13]
Dahlia Lithwick
Ian succeeded in bringing back liberal democracy. And so we all say, huzzah.
- [03:18]
Ian Millhiser
We did it, Joe.
- [03:19]
Mark Joseph Stern
Okay, so, Ian, we are here marking the start of a new term, but the last one never really ended. I think with the shadow docket decisions dropping pretty much every week and no sign of them letting up anytime soon, it feels like court is basically in permanent session. Am I right about that?
- [03:37]
Ian Millhiser
Yeah. And, I mean, I find it bizarre. I mean, this isn't the most important thing in the world, but like the old rules where the justices don't leap to decide a case the minute that the President asks them to don't just exist to protect us, they exist to protect the justices. Like, I assume Amy Cody Barrett wants to see her family ever again. I assume that Brett Kavanaugh might want to go on a date with his wife ever again. It is an unrelenting pace for us as Supreme Court reporters, but it's gotta be just a miserable, grueling slog for the justices. They're producing bad law. They aren't explaining themselves. Their polls are in the tank. They've got district judges complaining about the fact that they can't figure out what these orders mean. And I don't understand why they have decided to torture themselves this way.
- [04:29]
Mark Joseph Stern
I mean, at this stage, do you think there is even any point in distinguishing between the shadow docket and the merits docket? Are they pretty much one in the same? And the shadow docket work is just sloppier and lazier.
- [04:38]
Ian Millhiser
So I think that in practice, the way that this works, like, you see it most clearly in the Fed case where, like, what they clearly want to do is say that the President can fire the head of any agency except the people who lead the Federal Reserve. They had this one silly line about, like, the unique history of the banks and, like, quasi private entities. And, I don't know, everyone says it makes no sense. I don't know what it means. But what they're clearly saying, in that order is they're saying, look, I know there's a lot of smart lawyers out there, and this is what we want to say. So, like, Jones Day or someone, could you please come up with an argument to support this thing that we want to do? You know, they just hit you, say, we'll give you till January, Please send us some Amicus briefs. Send us everything you can. There's gotta be someone out there. Paul Clement, if you're out there, if you're listening, please save us Obi Wan Kenobi. You're our only hope.
- [05:35]
Dahlia Lithwick
Which really does sort of allow Brett Kavanaugh to have a date with his wife. Right. It's a sort of win win, because if you make it everybody else's problem and kick it down the road, then the sloppy, bad arguments can come later. So I guess that's fairly awesome for everybody involved. Ian, I guess I want to ask you, just as a follow up on what you just said, you and I and Mark have been talking about the shadow docket for quite some time now. Do you have a sense that Americans are sort of cottoning on to what this other sort of emergency secret? I don't know. What does Brett Kavanaugh want to call it? The interim docket? Like, what it is and how beyond the fight over what to name it, how much it's been used to kind of muddy the waters and put thumbs on the scales and, you know, overturn precedent. And in the aggregate, what this has all meant for Donald Trump, has that broken through?
- [06:28]
Ian Millhiser
You think so? I mean, if I had the ability to, like, reach into the minds of Americans and know what they think about every issue, I would run for president. So I can't know for sure. But I do know that the polls are showing a really steady downward trend in terms of the Court's approval and, like, a general sense that this is just a partisan institution. I think that's correct. I think that in the last, you know, several decades, the process of selecting Justices has become so partisan. It now selects four political operatives. It doesn't select for, you know, neutral, competent judges. And so the American people are getting the big picture here now, whether they are getting that, like, one important piece of that is instead of spending an appropriate amount of time deliberating important cases, they are rushing to decide things and not explaining them. I mean, maybe the news junkies get that. I don't know how much that message has got out, but it is very clear from the polls that there is a sense of alarm among the American people.
- [07:34]
Mark Joseph Stern
I am choosing to remain optimistic that a lot of this will continue to break through, because it seems to me that what the justices are doing by abusing the shadow docket is sort of dropping the pretense of judicial decision making that has long been so important for the Court's legitimacy. Right. Like, you know, the robes, the curtain, the deliberation you mentioned Ian, all of that is gone and they're just issuing these dead of night orders. After a few days of maybe sending angry emails back and forth. Justice Kagan recently revealed they don't even discuss these cases in conference. And at some point when the work product doesn't look like law and the process doesn't look like judging, I do think that many, if not most Americans will understand this is a court that's not acting like a court.
- [08:19]
Ian Millhiser
I think like we are involved in a grand experiment right now in whether people like the three of us matter and not just people like three of us, like whether law professors, whether lawyers who speak to the public, whether legal elites who understand how courts are supposed to operate and how judicial craftsmanship is supposed to work. Because it's not just that they aren't explaining themselves, it's that when they do explain themselves, it is incoherent gobbledygook. One of the most interesting footnotes I have ever read is the footnote in Justice Jackson's dissent in the Rahimi case. The case saying that you don't have a right if you are a wife beater to own a gun. And it's just a list of a dozen different lower court judges quoted saying, the case that you handed down two years ago called Bruin, that set the standard for Second Amendment cases makes no sense. None of us could figure out how to work it. This includes Democratic judges, includes Republican judges, includes Trump appointees saying, my God, I can't figure out how to do my job. That is happening over and over and over again. And I mean, I don't think it is reasonable to expect the rank and file voter to, like, make their voting decision based upon whether these guys are skilled in the art of creating judicial doctrine. But there is an incompetence to this that I haven't seen before. You know, it troubles me because as someone who spent the early part of his career being lectured by Justice Scalia about how liberals don't know how to do law. Well, I just wonder how much it's gonna matter in the long run that this is not being done in a competent way, regardless of whether or not you agree with the outcomes.
- [10:09]
Dahlia Lithwick
I had one slightly, this is not optimistic. It's not on the optimism, pessimism axis, but it's on some other unknowable axis, which is. Which has no name. But I do think that the, you know, we're railing here and have been for years about the curtain raiser, you know, the tendency to myopically focus on seven cases of which six have, like, interesting story. It's about cheerleaders. You know, like, that has nothing to do with whether this is, you know, the most consequential First Amendment case. And I guess I find myself slightly hoping, well, there's that optimism again, that the absence of that. In other words, when people are just like, open their paper and they're like, oh, they just decided about something that I didn't know they were deciding. You know, like, that there's something about this elaborate fan dance we've been doing all these years of like, these are the seven cases to watch. And at the end of the term, like, those were the seven cases to watch. And the existence of this, like, secret docket in which, like, crap keeps pouring forth that because it was not argued or briefed, it certainly wasn't covered in the media. And I can't help but wonder maybe this is just way, way, way too fanciful a spin, but the fact that this stuff is happening, happening, happening with no kind of Runway, no discussion, it's just, oh, today the court just decided a thing that we didn't know was before the court. Maybe that serves some kind of, like, weird back ass purpose, which is alerting folks to the fact that none of this is normal. I don't know, maybe that's just like, okay, I am putting lipstick on the biggest pig, but it is bright red lipstick. Anyway, sorry, I was trying to find something positive to say. I got nothing.
- [11:49]
Mark Joseph Stern
I have something because Ian said incoherent gobbledygook. And I feel like that's the perfect pivot into some of the cases that we have to talk about. And doing a muddle of the law. Could there be a better example than Louisiana versus Calais? Right. This is a major voting rights case. I know, I see the dread in your face, but, Ian, I'm going to make you talk about it. Listeners may feel like it is Groundhog Day because the Supreme Court heard this case last term but did not issue a decision. Can you remind us of what happened there, Ian?
- [12:20]
Ian Millhiser
Yeah, so, I mean, I think we actually need to go back a couple more years. So there was a nearly identical case out of Alabama called Allen v. Milligan. And the reason why I know it is a nearly identical case is because Louisiana, which is the defendant in this new case, filed a brief in the Supreme Court saying this case is the same thing as the Alabama case. So both cases involve racial gerrymandering. And if you don't mind me getting a bit into the weeds here because, like, I want to emphasize how small the issue is in this case. So there is a very limited set of circumstances when the Voting Rights act requires judges to redraw a state's maps. And essentially, you have to have two things in order for the Voting Rights act to kick in. One is you have to have residential segregation. You know, you have to have black and white voters or black and Latino voters, or two distinct races, racial groups that, like, tend to clump together in a way such that it's, like, actually possible to draw maps in ways that group them together, that try to split them apart. And then the other thing you have to have is racially polarized voting. So you have to have, say, a state where all the white people, almost all the white people, vote for Republicans and all the black people, or almost all the black people vote for Democrats. And when you have those two things, racial segregation and racially polarized voting, the problem that that create is that it tends to create two distinct political communities that both want different things that both vote for entirely different people. And whichever one of those two distinct political communities is in the majority will just cut the other community out. And so if the white people in the majority, that means that the black people in the state just won't get representation in Congress, or they won't get representation, or they'll get very little representation in the state legislature. And so Congress determined that in these very narrow circumstances where within a state you have two distinct political communities, one of which risks being cut out altogether, then the court should step in and make sure there's at least some district where the minority community is represented. Again, this is a very, very narrow set of circumstances where this applies. And this has been the rule since a 1986 case called Jingles that, you know, in these narrow circumstances, we have understood that the Voting Rights act protects against this kind of discrimination. The Alabama case came up to the Supreme Court about two years ago, and Alabama essentially asked, get rid of this rule. We want to be able to just exclude the minority community. And the Supreme Court surprised everyone by saying, no, we're not going to do that. We are going to keep the rule that has been placed for all these decades. And then they appear to have changed their mind. So they've now taken this Louisiana v. Calais case. It presents the exact same issue as the Alabama case. And the justice have signaled, as loudly as they possibly could have signaled, that what they intend to do is strike down this part of the Voting Rights act, strike down jingles, and create a new situation where, in this limited set of circumstances, you can have one community within a state completely pushed out of political representation.
- [15:44]
Mark Joseph Stern
Okay, so where we are now is the Supreme Court decided to uphold the Voting Rights act two years ago, and now it has decided it doesn't want to anymore. How will it use this case to reverse itself?
- [15:57]
Ian Millhiser
It's going to be some version of colorblindness. That is the thing that they love. They're going to rely very heavily, I think, on the Harvard affirmative action case. You know, I think that the Republican justices see this provision of the Voting Rights act as a form of affirmative action. It isn't a form of affirmative action. It just deals with a very, very narrow set of circumstances. And what the Constitution says is, the Constitution says that Congress gets to decide how to enforce the Constitution, safeguard against people being excluded from the franchise because of their race. And so Congress has determined that in this narrow set of circumstances, we should make sure that the minority community gets represented. It's not the role of the court Court to strike that down. But, you know, they don't care.
- [16:48]
Mark Joseph Stern
And as I said, the court actually heard this last term, couldn't reach a decision seemingly, and put it over again for this term, which is unusual. What do you read into that?
- [16:56]
Ian Millhiser
Here's one other technical part about this case. A lot of Voting Rights act cases come up through what's called the Supreme Court's mandatory jurisdiction. Unlike most cases where they can just decide to hear what they want, decide not to hear all the cases, they don't, they actually have to to hear this case. And I mean, one nice thing that Congress could do if we ever had, like, a function in Congress, is take away a lot of the Supreme Court's mandatory jurisdiction. Because I think what tends to happen a lot of these voting cases happens a lot in campaign finance cases as well, is there's an issue where the justices aren't really reaching out, like, they aren't eager to decide it. I think one reason why the Alabama case came down the way it did is because Alabama's lawyers were kind of incompetent in that case and, like, didn't come up with a persuasive explanation for why we should get rid of decades and decades worth of law. I don't know that the justices were necessarily, like, looking for a reason, or at least a majority of them were necessarily looking for a reason to go at this particular thing. But when they have mandatory jurisdiction of when it's going to land on their plate no matter what, you know, you can't get John Roberts to look away from the shiny thing that is colorblindness. Eventually he's going to be attracted to it like it's the sun's gravitational poll.
- [18:11]
Dahlia Lithwick
Ian, can you talk about another case that sort of has big cleanup on aisle four vibes where the court is just like, oh, this thing that, you know, we already decided we were wrong, but now we're getting it right. But never you mind. And that is campaign finance reform.
- [18:28]
Ian Millhiser
Oh, Lord.
- [18:29]
Dahlia Lithwick
What? Yeah, I know, I know. It's just not going to work if you moan every time we mention a Casey, they're all going to.
- [18:37]
Ian Millhiser
What can we do but complain at this point? Buck up.
- [18:40]
Mark Joseph Stern
It's not even the first Monday.
- [18:42]
Dahlia Lithwick
So, you know, just really quickly, you know, it's back on the chopping block. NRSC versus fec. This is the challenge to federal limits on political parties spending money in coordination with candidates. The court has upheld this law having, you know, discussed this issue 24 years ago. But I think as much as you said about the Voting Rights act, now is the time to say, oh, no, no, what we really meant was. And then just like, send it through the wood chipper.
- [19:13]
Ian Millhiser
Yeah. So, I mean, if you've paid any attention to the Supreme Court for the last, I mean, 15 years. Citizens United was 15 years ago. They hate campaign finance regulation. Citizens United actually said that people giving money to influence their members of Congress is an affirmative good. They believe that the First Amendment guarantees an absolute right of billionaires to spend as much money as they want to influence the elections. The only thing that they have said that, like, they are a little, like, yeah, maybe there can be some regulation. There is direct contributions to candidates. So, like, Citizens United was about, like, super PACs and all of these separate institutions that people sometimes can give money to. But the one thing where even the Republican justice, for the most part, has held the line is there is a law right now which says if I want to write a check to a member of Congress's reelection campaign, the biggest that check can be is $3,500 for the 2026 season. And the justices, I think, have largely gone along with that because the possibility of corruption when you're giving checks directly to a candidate in their campaign is just so high. So with that long wind up, what this case is about is that there are all of these different party committees. You know, the Democratic Congressional Campaign Committee, the National Republican State Leadership Committee. This case is about the National Republican Senator Committee. You know, each party has a bunch of these different committees, and there is a camp, a limit that you can give to these committees. But it's fairly high. It's almost $45,000 a year. So you can only give $3,500 to the candidate, but you give $45,000 to each of these little committees. And there is a law right now which says that the committees are not allowed to coordinate with the individual campaigns about how that money is spent. And the reason for that is very simple. If I am allowed to give a $45,000 check to the D trip and a $45,000 check to seven other Democratic Party committees, and then I can say, oh, and by the way, I want you to spend this money to elect Bob, then I might as well just be able to give the money directly to Bob. And like all of the possibility of corruption opens up, because, you know, Bob probably isn't gonn any favors for me if I only gave him $3,500. But if I have given him hundreds of thousands of dollars laundered through a bunch of different committees, Bob's gonna be pretty grateful to me when he gets elected to Congress. And so what this case is about is whether to tear that down, whether to tear down that ban on coordination and essentially allow very, very wealthy people to give potentially hundreds of thousands, even millions of dollars directly to candidates so long as they are wandered through these party committees.
- [22:11]
Dahlia Lithwick
Okay, I'm sighing too now.
- [22:13]
Mark Joseph Stern
And there's really no question that the Supreme Court will strike down this ban on coordination, right, Ian? I mean, it's gonna happen.
- [22:19]
Ian Millhiser
I, I, I mean, you know, God works in mysterious ways. Like, I, I, I, I don't know. Like maybe, maybe Jesus will find his way into Brett Kavanaugh's heart and open it up to the possibility that maybe bribery is wrong. But, I mean, I'm not optimistic. And if you look at how the Supreme Court has beh campaign finance cases, I think it's overwhelmingly likely if they strike this law down.
- [22:47]
Dahlia Lithwick
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- [22:51]
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- [23:54]
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- [24:28]
Ian Millhiser
This is a real good story about.
- [24:30]
Dahlia Lithwick
Bronx and his dad, Ryan. Real United Airlines customers.
- [24:34]
Ian Millhiser
We were returning home and one of the flight attendants asked Bronx if he.
- [24:37]
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- [24:38]
Ian Millhiser
Meet Kath and Andrew. I got to sit in the driver's seat. I grew up in an aviation family and seeing Bronx kind of reminded me of myself when I was that age. That's Andrew, a real United pilot. These small interactions can shape a kid's future. It felt like I was the captain. Allowing my son to see the flight.
- [24:55]
Mark Joseph Stern
Deck will stick with us forever.
- [24:56]
Ian Millhiser
That's how Good leads the way.
- [24:59]
Dahlia Lithwick
And we are back with my Amicus co host Mark Joseph Stern and Vox's Ian Millhiser.
- [25:05]
Mark Joseph Stern
Okay, turning to another probable inevitability. If that's not an oxymoron, I want to talk about Chiles v. Salazar, because I think it's really flying under the radar, even though it'll probably wipe out more laws than maybe any other decision this term.
- [25:19]
Ian Millhiser
Yeah.
- [25:20]
Mark Joseph Stern
So this is a First Amendment challenge to Colorado's ban on LGBT conversion therapy for minors, which is basically identical to other bands in more than half the states. So all of those are in jeopardy here. Are you as worried about this case as I am, Ian?
- [25:34]
Ian Millhiser
So what this case is about is essentially what the First Amendment says about talk therapy. And I mean, the plaintiff's argument, you know, they're represented by the Alliance Defending Freedom, which is this somewhat notorious, like, anti LGBT evangelical law firm. But like ADF's argument in this case, I think is pretty intuitive, which is that this is a law that regulates talk therapy. Talk therapy is A form of speech. Therefore, it's protected by the first Amendment. Therefore, if your therapist wants to tell you that it's possible to pray away the gay, then they have a first amendment right to tell you that. I grant them that. That's a good intuitive argument. The problem with that argument is that when I was practicing law, if a client came to me and said, hey, Ian, I want to know if it's legal to rob a bank. And I said, yes, yeah, you could totally go out there and rob all the bags you want. While you're at it, why don't you go shoot someone? That's totally legal. Nothing will happen to you. All I've done is speak. But, like, I could still be sued for malpractice. I could still be disbarred if I say those words to a client. You know, if a physician tells their client, oh, I see, you've got Covid. Just go inject yourself with some bleach and you'll be fine. Like, that doctor can be charged with murder. Historically, we've understood that when there's a relationship between a professional, a client or professional and a patient, the government has to have some ability to regulate what they say through malpractice, through forfeiture of licensure in extreme cases, potentially through application of the criminal law. If you don't have that, then you can't have professional regulation. You can't have any way to make sure that lawyers or doctors or therapists, whoever, are acting in the interest of their clients. And so the rule that Colorado proposes in its brief, which I think is a very sensible, is the rule that has existed in every malpractice suit for as long as I can remember, which is that you look at what the standard of care is within that profession. What do the members of that profession say is the thing that you should do when, you know, your client asks you if you can rob a bank or whatever? And in the case of therapists, every mental health organization and every medical organization that has looked into the question says, oh, yeah, conversion therapy is bunk. It doesn't work. You can't change someone's gender identity. You can't change their sexual orientation. You're more likely to harm people than anything if you try. Don't do it. It is professional malpractice to engage in conversion therapy. And, I mean, I think that's just a sensible place to draw the line, because we do want therapists to have some first amendment protection. The government couldn't tell therapist that. They have to, like, tell all of their clients to go vote for Donald Trump. But there also has to be professional regulation. And I'm not optimistic that this court's gonna draw the line in a sensible place, but I think that Colorado proposes a sensible rule.
- [28:37]
Mark Joseph Stern
So I guess two quick things. First, to be super clear, this is a law that takes the form of professional licensure regulations.
- [28:45]
Ian Millhiser
Right?
- [28:45]
Mark Joseph Stern
This is not a sweeping ban on talking about conversion therapy. Counselors can still talk about it. They can do it when they're off the clock. Religious leaders, parents, family members can all try to convert young people to stop being lgbtq. The one rule here is that when you are working as a licensed counselor, you cannot actively attempt to change the sexual orientation or gender identity of a patient. Right?
- [29:12]
Ian Millhiser
That's right. And, and, and, and, and the only thing it bans is trying to change someone's sexual orientation. So, like, if I'm a therapist and my patient comes, I'm gay, I want to change it. I could say that patient. Yeah, I hate gay people. I wish I could change you. Gay people suck, but it's not possible to change your sexual orientation, so you're just gonna have to suck it. Like, there's nothing in the law that requires anyone to be affirming or kind or, you know, pro lgbtq. All that the law says is that you can't do this. One thing that the professional community amongst mental health professionals has determined does not work and harms people.
- [29:57]
Mark Joseph Stern
But the problem is that, I guess, seven years ago in NIFLA versus Becerra, the Supreme Court basically said, we don't believe that there's any relaxed First Amendment scrutiny for professional speech and specifically called out a lower court decision that had upheld a conversion therapy ban. So I feel like it's pretty clear where the court is going on this. It's also pretty dim on ever deferring to the professional judgment of experts. Right?
- [30:20]
Ian Millhiser
Yeah. I mean, if anything, I don't think you're being cynical enough about NIFLA. So what NIFLA was about 1992, Planned Parenthood v. Casey. You know, a case that, like many of y' all remember, the part saying that that abortion is protected by the Constitution was overruled. But one aspect of the Casey decision that wasn't overruled is it actually upheld a regulation on abortion providers that said, hey, like, when you have a patient come to you seeking an abortion, the state can require you to give them a pamphlet or to make a pamphlet available you. That is written by the state and that tries to convince them not to have an abortion. That tries to convince them to adopt instead. And so NIFLA came about sometime after Planned Parenthood v. Casey in 2018. And it was basically the mirror image law. It said that there are these crisis pregnancy centers, which are clinics that are basically in the business of trying to talk people into not having an abortion. And just as you can tell an abortion provider that they have to provide a pamphlet saying, like, hey, here's why you shouldn't have an abort, and here's the other options available to you, California said to the crisis pregnancy centers, you gotta do the same thing. You gotta let them know that abortion is an option that is out there. And the Supreme Court struck that law down. And, I mean, I honestly don't really have a view on whether NIFLA was correct or not. I think that you can have a coherent First Amendment regime which says that you can make abortion providers provide the pamphlet and you can also apply the same rules to crisis pregnancy centers and make them provide certain information as well, or you can have a rule which says the government can't force either of them to say what they don't want to say. But what the court did in NIFLA is they said there's one set of First Amendment rights if you're an abortion provider, and then if you are anti abortion, there is a different, better First Amendment for you. And that's part of the reason I'm so worried about this Charles v. Salazar case is because, I mean, they probably aren't going to say that lawyers could tell people to rob banks. What they're going to say is that if you are an anti gay therapist or an anti trans therapist, you get the special First Amendment. You get the better First Amendment that no one else gets.
- [32:34]
Dahlia Lithwick
Ian, as sure as night follows day. Unfortunately, after Scarmetti, we get cases like West Virginia versus bpj. This is just another huge LGBTQ challenge. The court is going to consider this issue which has roiled America. Don't mind the shutdown. Don't worry about ICE agents terrorizing Chicagoans, because this is about whether states can ban transgender girls and women from playing school sports under Title 9. And I think, again, it's Sing it with me now. Doesn't look as though there's a lot of question about where this is going.
- [33:16]
Ian Millhiser
I mean, I don't know if I was the lawyers for the plaintiffs in either the two transports cases. In one of them, they actually are trying to get the case dismissed. And I would do anything I could to settle this case, make this case go away, because there's no way it is ending well. So doctrinally, there's actually some good reasons why the trans community faces an uphill fight here, and that is the one good trans rights decision we got out of the Supreme Court is a case called Bostock. Bostock involved the federal, which bans sex discrimination in employment. And the word sex in this context has always been interpreted to mean sex assigned at birth, not to mean gender identity. But what the Supreme Court said in Bostock is that in the employment context, essentially, trans people can piggyback upon the right against sex discrimination in order to avoid being discriminated against because they're transgender. You know, even if you believe that a trans woman is a man, what the court said in Bostock is that your employer can't tell a man that they aren't allowed to dress in a certain way, they aren't allowed to present in a certain way, they aren't allowed to act in a certain way. That's just sex discrimination. And so in that context, that was the one good trans rights decision we got from the Supreme Court. The problem in the sports cases is that there isn't a ban on sex discrimination in sports. You know, we allow sex segregated sports teams. And so trans rights advocates can't make the Bostock argument in this case. They can't say that, well, this is just a form of sex discrimination. Sex discrimination is not allowed because sex discrimination is allowed in sports. And that means that they have to argue that this violates the rights of trans people as trans people, that the Constitution specifically protects trans people from discrimination. I see no way to counter five here. Justice Barrett wrote an opinion in the Scrametti case where she rejected outright the idea that the Constitution protects trans people as trans people. Brett Kavanaugh has had a number of comments in oral argument where he is quite angry about the very idea that there might be trans women playing on women's sports teams. And if you don't have Brett and you don't have Amy, there's no way to count to five.
- [35:41]
Mark Joseph Stern
So just briefly, you mentioned this up top, Ian, but the Trump v. Slaughter and Trump v. Cook cases, the unitary executive cases, the Court has moved these from the shadow docket to the rocket docket, but in different ways. The Court let Trump fire FTC Commissioner Rebecca Slaughter while the court case is pending, but it did not let him fire Federal Reserve member Lisa Cook. You seem to think that means that the Court is just going to come up with some fake rule that says Trump can fire FTC commissioners and almost everybody else, but can't fire members of the Fed. Is that right?
- [36:11]
Ian Millhiser
Yeah. I mean, I base that on the fact that that's what the Supreme Court has done so far. Every time Trump has fired someone, including rank and file, like, not just agency heads, but like, the Supreme Court let Trump fire, like, 40% of the employees at the Department of Education. You know, every time Trump wants to fire someone, the Supreme Court says, yeah, you can do that. The one exception has been Lisa Cook. And I mean, the reason they gave doesn't make any sense to me, but the real reason why they won't let Trump fire Lisa Cook, so. So the Fed is an institution that has the power to inject cocaine into the economy. They can shoot down interest rates. Presidents love for them to do that because it'll juice the economy for a short period, maybe an election year, where the sitting president will benefit from that juiced economy, and then there are potentially very terrible repercussions down the road. This happened during the Nixon administration. Nixon pressured the Fed to inject cocaine into the economy. They did it in 1972 when Nixon was running for reelection. Nixon won in a landslide. And then for the rest of the 1970s, we had stagflation. So everyone just understands we don't want the Fed to use its cocaine power. And the only way to get the Fed to not use its cocaine power is to not let the President pressure the Fed into using its cocaine power. So I think what's going on here is very simple. John, Brett, nami, they own stock portfolio. They gotta live in this economy, too. And they don't want to live through eight years of stagflation followed by the kinds of crazy recessionary maneuvers that Paul Volcker had to engage in in the early 80s to undo the mess Nixon created. That is bad for them. John Roberts really has a penchant for fancy and expensive watches. He wants to be able to keep buying those expensive watches, and he may not have enough money to do that if Trump is allowed to get the Fed to tank the economy. And that's what I think is really going on here.
- [38:15]
Dahlia Lithwick
Ian, I guess we need to break my heart, talk about tariffs. It's another one of these. If you thought the justices lived under the same economy as everybody else, per your prior comment, this might be, like, not such a hard issue. And yet. And yet the court has, in fact, agreed to hear Vos Selections v. Trump, and for a lot of reasons. This is a really interesting case for exactly the reason you and I just said, which is, yeah, they love Trump, but do they want to crash the economy.
- [38:52]
Ian Millhiser
I don't know.
- [38:53]
Dahlia Lithwick
Yeah, you're going to have to like sort of walk us through the statute and also the major questions doctrine, Cy. But I think it's important to do that before we get to what John Roberts thinks about crashing the economy.
- [39:05]
Ian Millhiser
I think there's three reasons to be optimistic that the Supreme Court's gonna strike down the tariffs and one big reason to be pessimist. So first is the reason you said, like John, Brett and Amy, they've all got stock portfolios too. They've got to live in this economy. And I'm sure they don't like the terrorists for that reason. Reason number two is that a whole lot of right wing luminaries have come out of the woodwork to oppose this tariffs. You know, the Federalist Society had a conference on executive power recently where they were all talking about how much they don like the tariffs. There is a fairly prominent libertarian law firm representing one of the parties in these cases. I believe the case is going to be argued by Michael McConnell, who is a former court of appeals judge appointed by George W. Bush, who is just an eminence in the Federalist Society, probably the most significant religion scholar of the last 40 or 50 years. And, and so like, there's some serious Republican firepower behind this lawsuit saying, no, Trump shouldn't have this kind of power. And then the third reason is that I think that the plaintiffs. I'll get into this in a minute, but I think the plaintiff's legal arguments in this case are really strong, so you don't have to stretch in order to rule against Trump here. The reason to be pessimistic is not just that they keep ruling in favor of Trump no matter what, even in cases where the people suing Trump have a very strong argument. But we've already seen signs that some of the key justices are trying to come up with excuses to rule in favor of Trump. So there is a statute involved here. The statute says that the president can regulate foreign transactions and it says that he can do it to deal with an unusual and extraordinary threat. The statutory arguments on the case is that the power to regulate doesn't include the power to tax. I think that's a plausible, but not slam dunk argument. And that that the justifications Trump has given for the tariffs, mostly that we have trade deficits, we buy more from some countries than we sell to them, is not an extraordinary and unusual threat, is in fact something that's been around for many, many decades. I think that's a fairly strong statutory argument. But the reason why I think this case should be a slam dunk is because of this major questions doctrine that you all brought up earlier. The major questions doctrine has only ever been used against Joe Biden. It's something the Supreme Court made up in the Obama administration, but only applied to hypothetical regulations under Obama. And it says that when the executive branch tries to do something of vast economic or political significance, then essentially the courts will veto it. And, I mean, my God, we're talking about Trump claiming the unilateral power to raise trillions of dollars in new taxes. It says, tremendous inflationary implications. Yale has a study. I think that they showed that the average American household is going to cost $2,500 to the average American household. So if that's not vast economic and political significance, I don't know what is. This is such a slam dunk case if you think the major questions doctrine is legitimate. But Brett Kavanaugh wrote an opinion last term where he said, well, maybe the major questions doctrine doesn't apply to things involving foreign relations relations. That's all over Trump's brief. And, like, I mean, the major questions doctor is just something they made up. So if you can make up some bullshit, then you can make up a foreign relations exception to your bullshit. But I don't have to pretend like it's real. None of us should pretend like it's real. If they uphold these tariffs, it's just gonna be a clear sign that they're saying, okay, there's one set of rules when there's a Democrat in office, and then again, you get a different and better Constitution if you're a Republican president.
- [43:01]
Mark Joseph Stern
So I think this is a good moment then, to ask you, Ian, like, this is going to be another term of huge and almost uninterrupted wins. We're, we're very likely certain for Donald Trump, but he may well get hit with a few losses. When that happens, we probably shouldn't read it as proof that the Republican appointed super majority has magically rediscovered independence in principle. Right, right, right.
- [43:24]
Ian Millhiser
So, like, two things to know about the Supreme Court. One is that they get to pick their cases. And so, like, there will always be some judge probably on the fifth Circuit who, like, is somewhere to the right of the Supreme Court. And, like, there will always be some case where these justices say, nah, that's too far. But because they get to pick their cases, like, as the court moves. Right. The mix of cases. March is inexorably right words. So we used to have the Supreme Court hearing arguments about whether gay couples can get married. And now we're having arguments about whether someone's gay son can be abused by their therapist. So the issues coming to the court have just shifted far to the right. And then one other point that I will make that I'm just going to put a pin in for when May or June comes around is that the rhythm of the Supreme Court is that that the most contentious cases get handed down at the end of June. And like the cases that did not produce much contention tend to get handed down in earlier. Like often in May or in early June. And there is always some. I mean, sometimes it's someone trying to spin us, sometimes it's just some credulous reporter who doesn't follow the Supreme Court. There's always someone who writes a dumb take around June 10th, 10th where they point out the fact that like, hey, they're agreeing in a lot of cases and not and the liberals are winning some. I guess this means they aren't so right wing after all, huh? And like that person always looks like a fool come the end of June because that's when the big cases come. I would just advise people to familiarize themselves with how this institution operates and like the rhythm of it and when certain things happen, when other things happen before they get over their skis and like, like say something that's going to make them look really stupid.
- [45:21]
Dahlia Lithwick
Three weeks later, we're going to take a short break.
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- [46:57]
Dahlia Lithwick
Time to return now to my conversation with Mark Joseph Stern and Vox's Ian Millhiser, previewing the new Supreme Court turn term. Ian, I wanted to pick your brain for a minute about this theory that I don't know why it's exactly being named the appeasement theory, but the idea is seemingly that the Roberts court, sure, they roll on pretty much everything for Donald Trump, but it's because they're kind of saving their powder, right? They don't want to be in a constitutional crisis. So I guess what they're gonna do is, you know, give Donald Trump a string of uninterrupted wins, all in the hopes that they're not gonn down whatever capital they have with him. I don't know what that is. So that when the real constitutional crisis is upon us, they will leap out and save democracy. And I hear this, like, a lot from people that are very, very smart. And so I guess I am curious if, in your view, what I mean, put aside the sort of far right wing of the court, but like the Kavanaugh Baron it chief trifecta, if what they are really doing is saying, okay, we're just gonna wait until things get really bad and then we're gonna stop the juggernaut. And I guess I'm very curious how that's gonna work or if they genuinely don't think there's a juggernaut operative here to be stopped.
- [48:26]
Ian Millhiser
I try not to read the minds of the justices, in part because like, like, I don't know if it really matters that much whether the Neville Chamberlain theory of the Supreme Court is correct or whether the theory that they're just 100% on board with Maga is correct. Either way, they're handing down the same decisions. And like, what, what, what matters most is, is the results. I guess it's possible that the Neville Chamberlain theory is correct. And they just think that someday, if they're really, really careful and if they attack, accept every jurisdictional argument that Trump makes. I mean, one thing that I think potentially supports the Neville Chamberlain theory is that they haven't been handing down too many decisions saying, yes, the Constitution says that Trump can do this tyrannical thing that he wants to do what they're doing instead Is like, if you file in court X, they'll say, oh, no, no, no, you had to file in court Y. If you get an injunction, they'll say, oh, no, you didn't meet the rules for what you need to do to get an injunction. If, like, one plaintiff brings a suit, they'll say, oh, no, someone else had to be the plaintiff. They're finding all these procedural ways to hand Trump's victories, and maybe, maybe that's because they don't want to damage the substantive law. And maybe, like, they will turn around eventually when, like, someone finally finds the perfect plaintiff and files in the perfect court that Amy Cody Barrett has to admit, yes, you are allowed to bring this magical person to this magical court and actually get a magical injunction from it. Like, maybe they will then rule in August of Trump's last year in office that he did something illegal, but who cares? The crisis is now. And if they are letting Trump win because they think they can appease him and find procedural reasons to kick the can down the road for as long as possible, or if they are doing it because they think that Stephen Miller is the. The most awesome person who has ever lived, and they wake up every morning asking themselves, what would Stephen Miller do? We're still getting the exact same results.
- [50:40]
Dahlia Lithwick
I'm sorry, can I just nitpick one thing? I'm trying to decide if what you're saying is, sure, all these people are being fired, right? This is that whole question about, you know, the harms and the equities. You know, I agree completely that you can do this on the most technical grounds, but you're still freezing funding, you're still firing employees. Like, there is massive, massive damage coming about, probably irreparable or not fixable, certainly in decades. And so is what you're saying they just don't care about the carnage as long as they do it on a technical ground. Or are you saying, and I know you've just said, I don't want to sort of try to imagine what they're thinking. Do they just not see it as carnage that, like, half the government has lost their jobs and they're possibly collapsing the economy?
- [51:31]
Ian Millhiser
I mean, it's certainly true that a lot of these justices, well, the Republican justices have a very strong, strong ideological commitment to a very, very powerful presidency. I mean, that's what this unitary executive theory that they're all in love with is about. So maybe they're doing it just because they are on board with it. I think there is another, more cynical explanation for what they are doing. Which is that they might think that Trump's politics may not be sustainable. And four years from now, we might have, I don't know, like President Josh Shapiro or someone in office, office who is trying to use all of these powers that they have given Trump. And if they definitively rule that Trump has the power to do something, then when President Gretchen Whitmer, President Cory Booker, whoever the next president is, comes in and wants to use these powers, then they can turn around and hand down the decision saying, no, the president is not allowed to do this once a Democrat is doing it. So certainly this tactic that they're using of kicking the cans down the road and not handing down any definitive decisions, it leaves open the possibility to them, you know, manipulating the timing of their decisions, as they often do, to make sure that they benefit their party and do not benefit the Democratic Party.
- [52:49]
Mark Joseph Stern
Ian, I'm curious if you have thoughts on the question of how much and how often and in what voice dissenting justices and lower court judges should write about the fact that the Republican appointees seem to be in the tank for Donald Trump. We're seeing astonishing language coming from judges who have never really used their voices in these way. Is, does it embarrass the judiciary? Does it create a really important record for history? Does it do both and neither and more? And what should we make of this? Because it's very controversial.
- [53:17]
Ian Millhiser
Yeah, I think it's good. I think that they should criticize the Supreme Court within the confines of, like, judicial norms. So, like, I would not, if I were a lower court judge, say the Republican justices are doing this because they're Republicans. I would say it is my task to follow the orders of the Supreme Court, and I am incapable of doing so because the court is not explaining itself. And when it does explain itself, the rules it announces are inconsistent and incoherent. And the reason why I think that's valuable is because there's this rare thing in the law called the anti canon. So, like, there are some cases that were overruled in the past. We just don't think about them. And then there are a handful of cases, Dred, Scott, Lochner, Korematsu, Hammer v. Dagenhart, the case that said that child labor laws are unconstitutional, that all of us were taught in law school, and we were taught them as examples of this is how a judge should never, ever behave. Like, part of being welcomed into the legal priesthood is you learn that these cases are heresy. And I think that what we want 30 or 40 years from now is for much of what the Roberts court has done to be viewed as heresy. Trump v. United States. The Trump immunity decision should be anti canon. The only way that a lawyer should cite Trump v. United States is to compare their opponent's argument to Trump v. United States and say, your argument cannot possibly be correct, because if it is correct, then Trump v. United States was right, and that is untenable. That is a thing that happens in law. Cases become anti canon. They aren't just overruled. They are the exemplars that we hold up as, this is wrong, and it must never happen again. And the way that things become anti canon is that legal elites just don't drop the subject. The most important people are the justices in dissents. The Democratic justice should keep dissenting, saying, these decisions are wrong. Trump, the United States is wrong. The major questions doctrine is wrong and should be overruled. Lower court judges should criticize it. And then that then emboldens people in the academy to write articles saying, like, yes, yes, this is very bad. This should be anti canon. You know, I don't think that Brett and Amy are going to wake up someday and realize the error of their ways, but at some point in the future, we could have a very different court. And we want that court to be empowered not just to, like, try to distinguish these cases, you know, try to limit them to the present circumstances. Try not to. No, we want them to be empowered to say, not only are we overruling Trump v. United States States, but this decision was so wrong that anything that resembles it, anything that has the taint of Trump v. United States on it, is anathema.
- [56:11]
Dahlia Lithwick
Can I push maybe both of you, on what that outer limit of that kind of discourse is? Because I think we're seeing judges around the country going beyond just saying, I'm just trying to follow the law. We're getting sort of lengthy discursions on why does ICE wear masks. You know, the Klan wore masks. We're getting, like, way outside sort of the outer bounds of what the case itself is. And I think, Mark, I'm not sure you agree with me, but I think part of what is rattling folks is what is the outer boundary? And it leeches into this question of, like, name calling the president. Right. Which is separate and apart completely from. I'm just trying to do my job, and the court should help me do my job and sort of going after the. As an authoritarian. So I guess I'm just curious if there's some weird middle ground that lower court judges and, you know, judges around the country and even I guess I would say the dissenting judges need to find some set point at which it just looks like name calling or editorializing.
- [57:29]
Mark Joseph Stern
So first I just want to say that Republican appointed judges have already shut, shattered all of the norms around this with outrageous, openly partisan rhetoric condemning Joe Biden, condemning the Democratic Party, railing against Biden's policy agenda, his voters. There is no limit to what Republican appointed judges will say in their campaign for a Supreme Court seat. And so I do think focusing only on the left leaning judges who are criticizing the supreme court separate today Mrs. The fact that like this Rubicon has been crossed. We've also seen Republican appointed judges on the lower courts condemn Supreme Court decisions, essentially refuse to abide by Supreme Court decisions that they don't like, defy precedent because they don't like it. Like they have done all of that already. Those norms are gone. So the debate about what left leaning judges should do strikes me as in some ways kind of quaint because like at the end of the day, say, the right flank of the judiciary has already be clowned itself. But my view on this is that we should let a thousand flowers bloom. I think that when Justice Todd Eddins of the Hawaii Supreme Court calls John Roberts and his comrades a bunch of clowns in robes, in so many words, that makes room for Judge James Wynn on the 4th Circuit to say, hey Justices, you are leaving us out in limbo. We are out here flailing. Please help us us, please do not leave us stranded with shadow docket rulings that don't make any sense. And that leaves room for Alison Burroughs, a judge in Massachusetts, to write a footnote saying, hey Justices, it's actually really not helpful to condemn us when we can't follow your shadow docket orders because we don't really know what we're doing unless you give us instructions. Like, there is a continuum here. There's a spectrum. And it's good to have members of the judiciary, including dissenting liberal justice, all over it. Justice Katanji Brown Jackson writing these scathing dissents leaves room for Justice Elena Kagan to write more sort of micro targeted dissents. It is good to have all of these voices in the mix. I am not remotely concerned that any of them are taking it too far.
- [59:34]
Ian Millhiser
I'll just like inject one minor note of caution. I mean, I don't really disagree very much with anything that Mark said. I mean, I love Justice Jackson's Calvin Ball dissent. I thought it was one of the best dissents we've seen from the court in My lifetime. But I guess the reason why I'm advocating for some caution in judicial rhetoric is that lawyers are precious little snowflakes. We just love our norms so very much. And if judges don't behave in a precious and adorable way, then, like, there's just a lot of lawyers out there who just get up in their feelings and they react negatively to it. And. And if the project we want to achieve here is to anti canonize so much of what the Robbers Court has done, like the people who control that are legal elites, that is a conversation that is being held amongst people who all went to law school and were brainwashed in law school to never, ever, ever, ever speak ill of a justice, because, my God, like, then they might rule against your client. And so, given that reality, given that law, like, the people who have the most influence in this conversation are people who hew to very precious norms about how we're supposed to talk about these very, very powerful government officials who are often wielding power in tyrannical ways. I mean, and if you read my stuff, I am not particularly cautious in how I talk about these particular government officials, but I think that good judges are probably more likely to have the kind of influence that I hope that they will someday have if they oper the weird norms of the profession rather than, you know, doing the things that Mark and I can do, because we kind of have one foot in either, you know, one foot in and one foot out of it.
- [61:29]
Dahlia Lithwick
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He is an indispensable Reid and has, I think, really, really helped kind of both Light up the light. But light up the shadow for us this week. Ian, I can't thank you enough.
- [61:52]
Ian Millhiser
Thanks so much for having me, Dalia.
- [61:54]
Mark Joseph Stern
Ian, thank you for your insights. And you somehow made me less pessimistic about the coming term.
- [62:00]
Ian Millhiser
I don't think I did my job right then.
- [62:02]
Dahlia Lithwick
I was gonna say not because I.
- [62:03]
Mark Joseph Stern
Think it'll be any less bad, but because I feel even more equipped with the tools to condemn it with as much blunt truth as will be necessary. So thank you. Thank you.
- [62:12]
Dahlia Lithwick
That's that optimism, pessimism axis that has nothing to do with optimism and pessimism. We need another name, something to work on. Okay, thank you both.
- [62:21]
Ian Millhiser
Thank you again for having me.
- [62:22]
Mark Joseph Stern
Thanks, Dalia.
- [62:25]
Dahlia Lithwick
That's all for this episode. Thank you so much for listening in.
- [62:29]
Mark Joseph Stern
And if for some reason you still can't get enough of this Supreme Court Definitely. Check out Slate's daily news podcast what Next. Mary Harris is having me on the show Monday to talk even more.
- [62:41]
Dahlia Lithwick
And thank you all so very much for the letters and the questions and the comments you send our way. Please keep them coming. We are reachable by email@amicuslate.com you can always find us@facebook.com Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube. Or you can rate us and review us on Apple Podcasts.
- [63:03]
Mark Joseph Stern
On today's Amicus Plus Bonus episode, you asked, we answered.
- [63:08]
Dahlia Lithwick
Our Slate plesketeers sent in their burning questions about the Supreme Court and the law ahead of this new term, and Mark and I loosened our ties, we lit up our smokeless cigars and we did our very best to respond to some of your super smart questions about the inside story of deliberations, possible penalties for lying lawyers, and the Court's most toxic internal dynamics.
- [63:34]
Mark Joseph Stern
You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or visit slate.comamicusplus to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there.
- [63:51]
Dahlia Lithwick
Sarah Burningham is Amicus's senior producer. Our producer is Patrick Fort, Hilary Frye is Slate's editor in chief, Susan Matthews is executive editor, Mia LaBelle is executive producer of Slate Podcasts, and Ben Richmond is our senior director of Operations. We'll be back with another episode of Amicus next week. Until then, do take good care.
- [64:19]
Josh Levine
Hi, I'm Josh Levine. My podcast the Queen tells the story of Linda Taylor. She was a con artist, a kidnapper, and maybe even a murderer. She was also given the title the Welfare Queen, and her story was used by Ronald Reagan to justify slashing aid to the poor. Now it's time to hear her real story. Over the course of four episodes, you'll find out what was done to Linda Taylor, what she did to others, and what was done in her name.
- [64:49]
Limu Emu
The great lesson of this for me.
- [64:52]
Ian Millhiser
Is that people will come to their.
- [64:54]
Limu Emu
Own conclusions based on what their prejudices are.
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Josh Levine
Subscribe to the Queen on Apple Podcasts or wherever you're listening right now.