Amicus With Dahlia Lithwick | "What We Got Wrong About SCOTUS in 2025"

Date: December 27, 2025
Host: Dahlia Lithwick
Guest: Mark Joseph Stern
Podcast Focus: Law, justice, and the U.S. Supreme Court

Overview: Main Theme & Purpose

This end-of-year episode is a candid, searching conversation between host Dahlia Lithwick and Slate legal writer Mark Joseph Stern, reflecting on the U.S. Supreme Court’s major decisions and the evolving character of the current conservative (Roberts) majority in 2025. They scrutinize assumptions from the past year about the “center” of the Court, the willingness of justices to check executive power, and the consequences for democracy itself. Both hosts wrestle with the legitimacy, motive, and long-term impact of a Court they now see as unusually solicitous of Trump-era executive power—and what this means for Americans and for the institution.

Key Discussion Points & Insights

1. Supreme Court’s Recent Shadow Docket Decision: Trump and the National Guard

• Context: The Supreme Court issued a major (unsigned, shadow docket) order blocking President Trump’s deployment of the National Guard in Chicago—seen as an attempt to intimidate Democratic voters and minority communities ([04:20]-[08:14]).

Stern’s summary:

“The court ruled against Trump, which is in itself really remarkable since it almost never does that these days... The President had unlawfully federalized and deployed the National Guard in Chicago.” (Mark Joseph Stern, 04:59)

• The majority found that under federal law, Trump couldn’t use the Guard unless he had already attempted and failed to enforce the law with the regular military, and only with lawful authority.
• This marks a rare setback for Trump at SCOTUS in his second term.

Notable Quotes:

• Lithwick:

  “For all of our shrugie emoji listeners...law professors who are thinking outside the box...make a big difference. And that I think is worth stopping and pausing and saying, this is why we have to keep doing what we're doing.” (08:14)

• Stern (on Kavanaugh’s attempt to walk back "Kavanaugh stops" and the irony):

  “Sorry, Brett, it is way too late for that. They are still Kavanaugh stops. This changes nothing. You cannot walk back what you have unleashed.” (12:28)

2. Kavanaugh’s Attempt to Rebrand (Kavanaugh Stops) & Judicial Reputation

• Kavanaugh agreed in name with the majority but in practice tried to carve out a way for presidential discretion, writing a lengthy concurrence defending “immigration stops” standards.
• Both Stern and Lithwick dismiss his attempt to rehabilitate his image—arguing that shifting positions via shadow docket “do-overs” doesn’t undo damage.

Notable Quotes:

• Lithwick:

  “There's this larger danger...every once in a while, the court is actually going to do actual law and they're going to want a participation trophy...They're not the MAGA court. They don't want to oversee the demise of democracy...” (14:02)

• Stern:

  “Absolutely not. And the fact that anyone says otherwise really just shows how much the Overton window has shifted.” (15:10)

3. The Supreme Court’s Relationship to Trumpism & Executive Power (2025 in Review)

• Lithwick and Stern acknowledge their own mistaken faith that there's a "center" of the Court that would halt the most extreme Trump initiatives.
• Instead, they see Roberts, Barrett, and sometimes Kavanaugh as a rightward "center" enabling much of Trump’s agenda, with rare exceptions like the Chicago Guard case ([22:37]-[27:02]).
• The abolition of nationwide injunctions after years of allowing them against Biden is cited as a watershed, signaling full embrace of executive maximalism.

Notable Quotes:

• Stern:

  “The court is rarely, if ever, doing its job to try to limit unlawful aggrandizement of executive power. It's facilitating it. It's rubber stamping it...It just feels like the court is giving Trump the power to do almost everything he wants.” (27:02)

• Lithwick (on wish-casting a moderate Court):

  “The other flavor...was the theory that, oh, well, you know, this is all transactional...But I think you and I believed that there would be a big outrage and then the court was gonna drop the hammer, stop Donald Trump, because this time it really matters. I gotta say, I don't see a ton of evidence of that.” (28:27)

4. The Court’s Estrangement from Lower Courts & Judiciary Solidarity

• The majority has not only failed to defend, but has actively delegitimized the lower federal courts—especially district judges who tried to check Trump on deportations and other abuses.
• Chief Justice Roberts and others have “thrown lower courts under the bus,” draining their authority and legitimacy to the benefit of executive power ([31:55]-[37:24]).
• Prominent example: Judge Boasberg, who tried to block illegal deportations but was reversed and scapegoated, leaving lower courts vulnerable and demoralized.

Notable Quotes:

• Lithwick:

  “They have been in a lot of ways...excelled Mark for trashing the judiciary...You can disagree with lower court judges, you don't have to trash them...They have not got the wherewithal to protect themselves.” (31:55)

• Stern:

  “It just seems to me that where the law is at least as unsettled as it was there...somebody like the Chief justice...could have stood up for the lower court and set a precedent early, early on in Trump 2.0.” (34:42)

5. Why Have Six Conservative Justices Doubled Down on MAGA? ("The Nut of the Thing")

• Lithwick and Stern question why the justices, many not personally or socially invested in Trump, have become so all-in on MAGA jurisprudence.
• Stern’s thesis: The Court's majority identifies with a vision of American power that privileges certain demographics (white, Christian, wealthy) and is invested in anti-democratic systems like the Electoral College, Senate apportionment, and voting restrictions ([43:55]-[46:32]).

Notable Quotes:

• Stern:

  “My thesis right now is that these justices have fully cast their lot with Donald Trump and Trumpism and maga...ensuring that minorities of the country can sort of entrench their own power...perpetuate this system that privileges the elites, the wealthy, white people, Christians...” (43:55)

6. The Supreme Court as Architect of Democracy Shrinking

• Rather than the “blockbuster” social questions, 2025’s real theme is the Court’s aggressiveness in deciding voting and democracy cases: who votes, how, and whose votes count.
• Both hosts argue that, as elections loom, the Court is laying groundwork for a permanent Republican majority through decisions on gerrymandering, campaign finance, and voting logistics ([46:32]-[53:19]).
• Immigration, civil rights, and "who counts as American" are all fundamentally democracy cases.

Notable Quotes:

• Lithwick:

  “If you are a six justice supermajority and you want to make sure you can do all the stuff you want to do for the next 10 or 20 years, doing it isn't enough. Ensuring that nothing will stop you when an election comes along, becomes the end game.” (48:55)

• Stern:

  “The Supreme Court is considering this case that will dismantle the Voting Rights act, what remains of it, allow states to gerrymander black and brown communities into oblivion...states can take a look at a bunch of racial data...to ensure that people of color can't exercise as much electoral power.” (51:19)

7. What’s at Stake for the Court Itself?

• Having “cast their lot with Trumpism,” the justices have gone so far down this road that they now risk the institution’s legitimacy and future.
• If Democrats regain power, there may finally be an appetite for serious Court reform (term limits, expansion), dangers the justices could have defused by showing more independence ([55:17]-[58:29]).
• The ironic “win-win”: if Trump loses, the justices (and defenders) will declare there was never a real threat—SCOTUS is above it all. Lithwick fears this perspective will whitewash institutional complicity.

Notable Quotes:

• Stern:

  “I think they have reached a point of no return...they have failed to act as an independent neutral body of jurists...They are now so intertwined with Trumpism that if the entire Trumpist project falls apart, they might collapse with it.” (55:17)

8. What Now? Hope, Action, and Democracy Beyond SCOTUS

• Final reflections insist on the importance of action, engagement, and refusing "learned helplessness" in the face of a Court that will not save democracy ([65:41]-[70:22]).
• Both urge listeners to vote, organize, and recommit to participatory democracy—reminding that many voting barriers pre-existed Trump and can be removed only by dedicated civic reform.

Notable Quotes:

• Stern:

  “There is a way out of this mess...But it's going to require everybody who's mad right now, who's mad as hell, to start getting angry at people who don't believe that this kind of big, sweeping reform can happen...Democrats could learn a thing or two about not automatically shooting down their biggest, most aspirational proposals.” (65:41)

• Lithwick:

  “So much of this has never yet been perfected. So we can't walk around...saying there was a perfect democracy that was ripped away. No, there's democracy that needs an immense, inordinate amount of work, not from politicians, but from every single person.” (68:18)

Timestamps for Major Segments

| Segment Description | Timestamp | |-------------------------------------------------------------------|----------------| | Opening banter and episode purpose | 00:55–01:44 | | Breakdown of National Guard decision & its context | 04:20–08:14 | | Kavanaugh’s “do-over” and ongoing Court reputation battles | 09:25–14:02 | | Has the Court’s stance on Trump really shifted? | 15:10–18:08 | | Broad 2025 Review: Shifting assumptions about the "center" | 22:37–27:02 | | Lower court marginalization by SCOTUS | 31:55–37:24 | | Why has the majority tied itself to Trumpism? | 43:55–46:32 | | The real theme: Voting, democracy, and entrenching minority rule | 46:32–55:17 | | Stakes for the Court if the political winds shift | 55:17–60:42 | | The “no-win” optics for the Supreme Court | 60:42–63:26 | | Final words: Action, hope, and participatory democracy | 65:41–70:22 |

Notable Quotes & Moments

• Mark Joseph Stern (on the Court's motives):

  “They are so intertwined with that perception of who deserves power...it's only Trump and Trumpists that they need to protect ...from the actual direct forces of democracy.” (43:55)

• Dahlia Lithwick (on the endgame):

  “Ensuring that nothing will stop you when an election comes along, becomes the end game.” (48:55)

• Mark Joseph Stern (on the antidote):

  “We can't give up, because that is what the other side always wants. The forces that oppose democracy and civil rights want a kind of mass surrender, and we just can't do that.” (65:41)

• Dahlia Lithwick (on hope):

  “No, there's democracy that needs an immense, inordinate amount of work, not from politicians, but from every single person...Our point here isn't to frustrate people. It's to say: Happy New Year. There's a lot of work to do.” (68:18)

Tone & Style

• Engaged, direct, often wryly self-reflective or ironic
• Earnest warnings about the seriousness of democratic erosion—mixed with a resilient faith in civic engagement
• Sharp legal analysis, weaving doctrine into political reality

For Listeners Who Missed It

This episode is both a reckoning and a rallying cry—Lithwick and Stern chart the Supreme Court’s sharp rightward turn, challenge their own “wishful” assumptions about institutional restraint, and urge listeners not to wait for courts to save democracy, but to do the work themselves, together.