Mark Joseph Stern (2:10)

And that's because you have only three days left to take advantage of the special discount for Amicus listeners through the end of the year, which is so close we are running a special 50% discount offer for Slate plus membership.

Dahlia Lithwick (2:24)

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Mark Joseph Stern (2:37)

Join today and you can listen to our excellent and existential Dear Jurisprudence bonus episode right after this one.

Dahlia Lithwick (2:45)

Our cherished Amicus plusketeers have been sending in their burning questions about the courts and the law and the Supreme Court. And we have selected the very best of those. And we'll be answering them via the medium of interpretive dance.

Mark Joseph Stern (3:01)

Are you sure about that one, Dalia?

Dahlia Lithwick (3:03)

No, no, we are not. We are answering them verbally and backed by lots of research and a total. Oh my God. Of almost 40 years experience collectively covering this beat. There will be no dancing. Well, there will be quiet dancing, but lots of legal nerdery.

Mark Joseph Stern (3:21)

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Dahlia Lithwick (3:34)

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Mark Joseph Stern (3:48)

And you'll be supporting Slate's independent journalism in a moment where independent journalism needs all the support it can get. Seriously, we cannot do it without you.

Dahlia Lithwick (3:58)

Unlock this deal@slate.com amicus plus when you enter the promo code amicus50 at checkout. That's am I c u s 50.

Mark Joseph Stern (4:09)

Okay, Dalia, shall we turn to the matter at hand?

Dahlia Lithwick (4:13)

Yes. To the year that was at the highest court in the land.

Mark Joseph Stern (4:17)

Wow. With rhyming couplets, no less.

Dahlia Lithwick (4:20)

And interpretive dance. On Tuesday, the Supreme Court released a shadow docket decision on a case they'd been sitting on for a really long time. So we're all powering down our laptops. We're getting ready for the holiday break.

Mark Joseph Stern (4:35)

It doesn't have to be this way, Dalia.

Dahlia Lithwick (4:37)

There's no point. There's no point. I think they do it just to provoke us before we make the climb to our 30,000 foot view of the last 12 months at SCOTUS. Can you just read us in to this? I think big deal of a decision in the case concerning Donald Trump's deployment of the National Guard in Chicago.

Mark Joseph Stern (4:59)

This is a big deal decision. Not sure why it had to drop right on the eve of Christmas Eve. The court ruled against Trump, which is in itself really remarkable since it almost never does that these days. In an unsigned shadow docket order that was partly 6:3, the court held that the President had unlawfully federalized and deployed the National Guard in Chicago. And its reasoning applies to other cities like Portland and Los Angeles, not to the District of Columbia, unfortunately, because it has special status. So this does not apply to DC but for all of those other cities, the court said how Trump has tried to deploy the Guard is not aligned with federal statute. Why is that? Well, there's a federal law that says that the President can federalize the National Guard when he is, quote, unable with the regular forces to execute the laws of the United States. For months, the debate in court about this statute was a factual one, whether Trump was genuinely unable to execute the laws in places like Chicago and Portland without sending in the Guard. And the assumption was that the term regular forces meant, like federal civilian law enforcement, ice, cbp, Federal Protective Services, that kind of thing. When this case reached the Supreme Court, though, our friend, Georgetown law Professor Marty Lederman, filed a brief arguing that regular forces did not mean civilian police, it meant the regular military. And so this statute actually says that the President cannot send in the Guard until he has tried to execute the laws with the regular military and failed. That felt kind of like an obscure argument, I would say, since it hadn't really been made forcefully. And in fact, Chicago had not made it to the Supreme Court. But the Supreme Court was clearly interested. It asked for extra briefing on the question, and then on Tuesday, lo and behold, it said, Marty Lederman, you're right. The court declared that under this statute, the president first has to try to execute the law with the regular military, and only when that has failed is he able to send in the Guard. The court further held this part was really five to four. This was John Roberts and Amy Coney Barra with the liberals that the President has to lawfully send in the military. So the President needs to have some authority, authority to send in the military to try to calm the situation. He can't simply say, oh, I want to send in the military, but I can't, or I don't have time, or it wouldn't necessarily be legal, so I'm just going to send in the Guard. There is a real sort of barricade in the statute that before the President sends in the Guard, he has to be able to lawfully send to the military, and then that effort has to fail. And so the Supreme Court said that didn't happen. And, and it really couldn't happen here because the President hasn't argued that he has a right to send in the regular military. And so the troops may not deploy in Chicago. And that was maybe arguably the single biggest defeat that Trump has faced at the Supreme Court in the second term so far.

Dahlia Lithwick (8:14)

Without a doubt. And, you know, a couple things. Another unsigned order, another shadow docket order. As you said, this is a consequential loss. And I also want to just note for all of our shrugie emoji listeners who are like, nothing matters, you know, you can never reverse the tide. It turns out that law professors who are thinking outside the box and grappling with, you know, very old statutes and what is posse Comitatus and you know, what is the National Guard like? They 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. And then there's this fun. I'm sorry, the schadenfreude fun. What is that noise I'm hearing? Oh, what is the grinding, shame filled gears of Brett Kavanaugh who's like, wait, what? Kavanaugh stops. I didn't mean that. This is just like the absolute icing on top of the Christmas cake. And it's Kavanaugh in an unrelated discussion, by the way, giving himself the Christmas gift of forgiveness for the Kavanaugh stop.

Mark Joseph Stern (9:25)

I love that when you get two Jews together on a podcast, we think that there is a Christmas cake. That's what everybody does, right? They ice the Christmas cake on December 23rd.

Dahlia Lithwick (9:34)

I want Christmas cake.

Mark Joseph Stern (9:35)

I'll never say no to cake, especially this cake of schadenfreude, because you are exactly right, Dahlia. I mean, a couple things. First, Kavanaugh purported to agree with part of the majority. He said he agreed that regular forces meant the military. And so in theory, like on paper, he ruled against Trump, but then he spent three additional pages arguing why Trump should still be able to do almost anything he wants and basically said that the courts should give the president deference to simply declare, oh, I want to send in the military, but I can't for whatever reason, and then send in the guard, which would be a huge exception that would eat the rule laid down by the majority. So Kavanaugh doesn't really agree with the majority. He just didn't want to be a dissenter. Like he always wants to be with the majority when he can. And I think that's what was going on here. But yes, the footnote. We have to talk about the footnote. So buried in this opinion, saying, I agree, but I don't really, he tries to, I think, tell us, please, please cease and desist calling them Kavanaugh stops. So he says, this case, by the way, is about immigration stops. And I just want to make clear that the law around immigration stops is really, really obvious and longstanding. The fourth Amendment requires that they must be based on reasonable suspicion of illegal presence. Stops must be brief. Arrests must be based on probable cause. Officers must not employ excessive force. Moreover, officers must not make interior immigration stops or arrests based on race or ethnicity. Wow. What a concept, Brett Kavanaugh, a concept that you've rejected in your own opinion just a few months ago in September in the Vasquez Perdomo case where you said that immigration stops could be made partly at least based on race or ethnicity, that a person's appearance as Latino could be a reason for them to be stopped by immigration officers. So I think he's trying to rid Kavanaugh stops from the discourse, which is never going to happen. Sorry. Not sorry, Brett. I think he's trying to maybe send a message to the Trump administration to cool it down. Right. Because now we have like, CBP chief Greg Bevino declaring that they can racially profile anyone they want and that in fact, every single person in this country has to walk around with proof of citizenship or else they can be arrested. And he's probably a little unnerved that all of these violent, racist arrests and abductions are now sort of taking his name. They are the Kavanaugh stops. And I also think that he feels he doesn't want to be remembered in history as this great villain who unleashed the worst wave of violent racial profiling by the federal government since, like, the days of Jim Crow. And 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.

Dahlia Lithwick (12:28)

This is so important, Mark. And goes to all of the quibbles that we surface about the shadow docket, which is if you're going to go ahead and reverse actual pre about how we do stops in unreasoned, random ways that then get operationalized for all time. You can't then again on the shadow docket say, oh, sorry, I didn't mean the thing that I said. And you certainly can't do it in a case that is just not in any way relatable back to what the Kavanaugh stop was doing. So this is weird dicta in a like random case that is trying to undo crappy but unfortunately now enforceable doctrine and Kavanaugh just being like, no, it's a shadow duck and I can do what I want doesn't get you there.

Mark Joseph Stern (13:25)

I get a do over, I get a taxi backsy. Right. I will say I've seen some commentators praising Kavanaugh for sort of responding to criticism. I do not think he gets any points, no extra credit for Kavanaugh, he did what he did. He should have foreseen the consequences. Every intelligent observer understood what was going to happen when that opinion dropped in September. The fact that he now seems to regret it and still hasn't apologized directly or anything, hasn't acknowledged that he was wrong, pretended that what he said earlier is consonant with what he's saying now. No, no, no, no, no, Brett, you do not get points. 0 points F for all eternity.

Dahlia Lithwick (14:02)

It's just shocking that we're now at the full Etch A Sketch. You know, I'm making law, I'm breaking law, I'm changing law. Which, again, is one of the knocks we've had from Shadow Document. But there's this larger danger, and you and I have been talking about this and said every once in a while, the court is actually going to do actual law and they're going to want a participation trophy. Right? Hey, today we participated in actual rule of law and democracy, and there is going to be, and as you said, this is starting to happen, an exultant pointing to this one decision and saying, hey, they've really learned their lesson. They're not the MAGA court. They don't want to oversee the demise of democracy. Does anything about this admittedly wonderful welcome stop clocks? Every once in a while they get it right. Has anything about this National Guard in Chicago decision made you rethink the court's current relationship to Donald Trump and maga?

Mark Joseph Stern (15:10)

Absolutely not. And the fact that anyone says otherwise really just shows how much the Overton window has shifted. I mean, let's talk about what Trump is trying to do here. He wanted to send in the National Guard to blue cities to intimidate Democratic voters, to violently oppress and subjugate racial minorities and immigrant communities. He had them assist with ICE and CBP in these notoriously brutal, violent immigration raids, had uniformed troops on American streets, Right, attempting to enforce the law as he understood it, which was basically deport everyone who looks like an immigrant. And the fact that the Supreme Court drew a thin line there, right, and said, oh, that's a little too far. That does not mean that the Supreme Court is not still largely going to be in the tank for Trump and greenlighting Trump's agenda. What it means is that he finally found the breaking point at the far end of his agenda, where at least five justices were willing to draw a line. And note, I'm not even saying the line right, because what Trump could now do, and there's a lot of speculation that he might, is invoke the Insurrection act, which is an exception to the usual rule against using the military to enforce domestic law. And he could say there's mass obstruction of the federal government under the Insurrection Act. I get to send in the military. I don't need the National Guard. I don't need to worry about this decision because I can just say I'm the commander in chief. Military goes into Chicago now. And will the Supreme Court stop him? We don't know. The Supreme Court hasn't even clearly indicated whether it thinks that it can review an invocation of the Insurrection Act. That would be an escalation that could sort of convince Robertson, Barrett. Oh, let's step back. Let's step down. We really don't want to be dealing with a constitutional crisis of the judiciary against a president who wants to invoke one of the most sweeping exceptions to the general rule against military enforcing domestic law. And I just don't know how the justices will rule in that case, but I'm not super optimistic. And so I think that this is an area where, yeah, there's some daylight between sort of Federalist Society dogma and what Trump wants. You know, the Federalist Society has not spent decades declaring that the president should be able to just send the troops into the streets. That actually kind of goes against the concept of federalism and state sovereignty. So this is an area where Barrett and Roberts could think for themselves. Well, that's really good. I'm glad. I'm proud for Chicago. But it does not mean that we need to rethink the court's relationship to the president, because now that they've given themselves this cover, actually, now that they can say, hey, look, we ruled the against Trump, I think that they are going to be even more vigorously on his side in other future cases. Because if anyone accuses them of being partisan, they can say, oh, we ruled against him that one time. So nobody gets to call us partisans. We are independent jurists calling balls and strikes.

Dahlia Lithwick (18:08)

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Dahlia Lithwick (20:45)

Let'S step back now from Tuesday's order and instead open up the promised wide angle lens as we now together ring or I guess maybe toll in the new year of 2026. Because we really wanted this episode to be a conversation between you and me, the kind of conversation that we usually reserve for the members only plus segment.

Mark Joseph Stern (21:11)

That, of course, is where Dahlia and I often go to think out loud, trading ideas and theories and tentative first thoughts about what's happening at the Supreme Court and inside the judiciary and Donald Trump's Justice Department.

Dahlia Lithwick (21:25)

And sometimes mark conversations, we do violate our own cardinal rule on the show because we get really hyper focused on an individual case or some individual character at the court. But as we all remind ourselves in our editorial meetings, our job here at Amicus is not to do horse race coverage of any one lawsuit or breathless speculation about whether we can count five votes to resolve any one dispute.

Mark Joseph Stern (21:52)

Our focus is, as it must be, on the stakes. The stakes of any one doctrinal shift for the country. The stakes of ERODING the wall between church and states, the stakes of making it ever easier to arrest and detain and deport and denaturalize, and the stakes.

Dahlia Lithwick (22:08)

Of a high court that appears to be ever more eager and willing, I would say, to destabilize the very idea of checks and balances on the executive branch and in so doing, to just hand the keys of the car to President Donald Trump, just one blank check after another all year long, to dismantle oversight, to hobble the judiciary and to substitute its own judgment about the ways of the world for that of the legislative branch.

Mark Joseph Stern (22:37)

And for this, our Year in Review show, to recap the year that was, we also thought we could flip even that script to talk in terms of the stakes not just for Donald Trump and not just for Americans and not just for democracy, but the stakes for the Supreme Court itself. If it's six justice maga wing continues down this path toward Trumpist maximalism.

Dahlia Lithwick (22:58)

So let me sketch out what it is we're thinking about for this conversation. Even a year ago, Mark and I, I think, would have both argued that this alleged 333 court was a myth. But I think we also agreed, and we certainly said it a lot on this podcast, that there was some center of the court made up of the moderate conservative justices that cared about democracy in some vague sense and that really didn't the last Supreme Court in the history of a functioning America and that was going to do something to stop the madness when the rubber hit the road.

Mark Joseph Stern (23:35)

So I think we were wrong, Dalia, but we were like embarrassingly wrong. There is a center of the court, John Roberts, Amy Coney Barrett, to a lesser degree, Brett Kavanaugh, they are in the middle. It's just that the middle is further to the right than we ever could have guessed and much more closely aligned with Trump's agenda than we had anticipated. This time last year we there was going to be a three justice center, I think that kind of gave with one hand, took with the other, gave Donald Trump some big wins. We've known for a long time that this court was going to overturn Humphrey's executor. Right? It was just a matter of time until the court let Trump fire anyone he wanted. We've known for a long time the court was going to expand Trump's power in all of these different ways, allow him to withhold federal funds and halt foreign aid and hobble inspectors general and oversight. We knew all that stuff. Stuff. But even still, the way that the so called center has enabled some of Trump's worst abuses of power truly took me by surprise. And one example here is the abrupt abolition of nationwide injunctions, universal injunctions, right after Biden had been slapped with them left and right for four years of his presidency. Within six months of Trump returning to office, the Supreme Court says, oh, never mind. We're taking away nationwide injunctions and aggrandizing the power of the executive branch beyond what any recent president President has enjoyed. I didn't fully see that coming. Even after oral arguments when it was clear there was going to be like a photo finish on the question, I still thought Barrett and Roberts and maybe even Kavanaugh would sort of walk back from the brink and say, you know, we do think Trump has some dangerous tendencies. It probably makes sense to give district courts some discretion here, like maybe to issue a nationwide injunction in the birthright citizenship case, where the president is trying to repeal the 14th Amendment, which was the actual nationwide injunction case before the court. But we were wrong about that. I was wrong, and it's highly alarming to me, because if the center is that far to the right and the Thomas Alito Gorsuch wing is so far off the scale it can't even be measured, then 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. There are some exceptions, but few and far between. And it's doing so at the expense of democracy, at the expense of individual rights and Congress and all of the other parts of the government that we thought were important. So I guess it feels to me, coming to the end of 2025, like there's not really three branches of government anymore. There's barely two branches because the judiciary is now just the Supreme Court. And that's another part of this conversation. I really did not expect SCOTUS to throw lower courts under the bus the way that it did. And we've seen so many lower courts try to stand up to Trump, and the Supreme Court has just ruthlessly thrown them under the bus time and time again. So it just feels like the court is giving Trump the power to do almost everything he wants. There are a few footnotes. There are a few exceptions, maybe tariffs, maybe birthright citizenship. They did just push back on sending the troops into blue cities against the wishes of the local lawmakers. And that's. That's important. But it's still the very rare exception, because otherwise the majority of this court just seems to see itself as the guarantor of Trump's agenda. And it'll tell Congress, you wanna stand in the way. It'll tell lower courts, you wanna stand in the way. Too bad Trump gets to do what he wants. And that's just not where I thought we would be today, one year ago.

Dahlia Lithwick (27:02)

And I think there were a couple of flavors of the 3, 3, 3 mythology floating around. And one was, okay, sometimes it's gonna be Kavanaugh, sometimes it's gonna be the chief. You know, every once in a while it's gonna be Amy Coney Barrett, and they're gonna side with the liberals in some trickle of 2 and 3. You'll remember the Amy Coney Barrett moderate leftist discourse of not so long ago. And I think that we've had that vibe in prior terms, right? We've seen very different members of that newly constituted 6:3 supermajority peel off and moderate what Justices Alito and Thomas and Gorsuch wanted to do. That is not, not a thing that we saw this last term almost at all. And I think it's really worth thinking about how much we impose this wish casting right on these characters and say, oh, you know, well, you know, on many, many issues, Brett Kavanaugh is going to be very moderate on most issues. Barrett is going to be moderate on most issues. The Chief justice is a humble institutionalist who cares about the legitimacy of the court. Just not a lot of that going on right now. That sort of trading off of who is going to be the quote unquote center. And maybe the other flavor of all this that I think is also proving to be fanciful wish casting was the theory that, oh, well, you know, this is all transactional. The court is ultimately well aware of the dangers posed by Donald Trump, but they're gonna save their powder, right? They're gonna really draw down from their leg legitimacy capital until something absolutely monstrously important happens, because they couldn't possibly come out the chute and go, no, no, no, no, no to the President. So, yeah, we saw initially on the early deportation case a little bit of procedural breaking mechanism. This week's National Guard, some breaking mechanism. 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. And as you noted, if you think about birthright citizenship from last term, they could have done a lot of things much smaller. But there's very little evidence that this court on the big ticket items is deciding, okay, we're gonna absolutely save whatever authority and power we have on the big ticket items. They've been, in my view, as willing to cede power to Donald Trump on big ticket cases as they have on the small ones.

Mark Joseph Stern (30:02)

I think it's worth zeroing in on the deportation case where the court didn't hold its powder, because, you know, our friend Steve Laudick has said on the show, and it's absolutely true, that was less about, like, protecting democracy or individual rights or due process or congressional prerogatives. It was more about protecting the Supreme Court's own authority because the Trump administration was trying to expel these Venezuelan migrants in the middle of the night before the courts, and specifically the Supreme Court, could get a chance to weigh in on the legality of the expulsions, which the court had already strongly suggested would be unconstitutional. And so for the Supreme Court to step in with that extraordinary order at, like, 1:00am I mean, it was great. It was better than the alternative. It was better than the court doing nothing. But once the dust settled, we realized this was the court making sure that it could be the decider. I mean, it preserved the opportunity to greenlight these deportations in the future. All that the court was doing was saying, no, you can't evade us. We still get to sit at the very top of the constitutional pyramid. Not you, Donald Trump. And I have to say, I think that the Justice Department has done a pretty savvy job of figuring out, like, how to avoid that kind of conflict and how to take cases to the Supreme Court that screw over other parties, lower courts, Congress, whatever, that still make the Supreme Court, or at least the Republican appointed justices, feel really good about the fact that they are the ultimate deciders. So I guess on that note, Dahlia, you and I staked not an insignificant amount of credibility on the proposition that the justices, maybe not across the board, but at least a super majority of them, like, cared about an independent judiciary and having courts that were truly capable of standing up to a president who abuses the law. Were we right about that?

Dahlia Lithwick (31:55)

No, we were wrong on that, too. And this is really one of the things that has been dismaying, because this isn't in any way partisan issue, a political issue. This is the Supreme Court is entrusted with protecting the entire Article 3 judiciary. And they've just failed. They've just whiffed. And I would say more than failed. They have been in a lot of ways and excelled Mark for trashing the judiciary. And we've talked about it a lot on the show, whether it was, you know, not Just the decision in the nationwide injunctions case, which on the merits was kind of bonkers. But the language, right, the rhetoric of going after district court judges and discrediting them as somehow not legitimate arbiters of what the law is. And the rhetoric, I mean, again, that's the same rhetoric we heard about deep state Justice Department prosecutors, right, in the immunity case, watching the Supreme Court or members of the Supreme Court turn on entities that cannot protect themselves and be a part of slagging district court judges. And of course that reaches its low water mark when we have, you know, Judge Young slagged for a decision when the court somehow in August was like, you didn't follow our invisible ink lemon juice shadow docket order in another case. And going after district court judges who cannot apply, who try to distinguish or try to understand what a shadow docket order is, and then get it wrong, you can at the Supreme Court say, hey, you got it wrong without going the further step that Justice Gorsuch in a concurrence signed off on by Justice Kavanaugh, going after and impugning the integrity and the intentions of original respected senior judge. Right? And so I just want to bracket that. You can disagree with lower court judges, you don't have to trash them, because as we have said over and over again on this show, they have not got the wherewithal to protect themselves. And it is ironic to me in the extreme that if you go back and you read that Justice Gorsuch concurrence where they go after a district court judge for misapplying a shadow docket order, they talk about how it's integral and, and essential to the rule of law that the Supreme Court be supreme without also slightly honoring the fact that it is also integral and essential to the rule of law that we have respect for all courts. And so I've been astounded by the willingness to say, eh, all of those district court judges, every single one that issued an injunction is suspect.

Mark Joseph Stern (34:42)

I think where the wheels really started to come off the bus and that dynamic became clear was the first Alien Enemies act deportation episode with Chief Judge Boasberg in D.C. right, because Judge Boasberg sticks his neck out, issues a restraining order blocking these illegal deportations, and the Justice Department ignores him. We now know, right, State Department, Department of Homeland Security, there's collusion and a decision to expel these individuals anyway in violation of a court order. And even then, you know, these individuals were expelled. Judge Boasberg's order was not heeded. Still, a bunch of very prominent Republicans condemned Judge Boas, you know, called for his impeachment. Chief Justice John Roberts actually issued a statement, a very rare, very brief statement, saying, oh, impeachment is wrong. That's what the appeals process is for. But when the Trump administration took that case to the Supreme Court, the Supreme Court screwed over Judge Boasberg and ruled against him and ruled that his restraining order had been wrong and created this bizarro system of habeas pleadings in specific district courts that actually paved the way for the Trump administration to try to sneak off those other Venezuelan migrants in the middle of the night. And, you know, that was a decision that even Amy Coney Barrett dissented from because it was so obviously wrong on the merits. There was no precedent that said that people facing this kind of predicament, these unlawful deportations without due process, that they had to plead through these habeas filings in the district court, the venue where they were confined, it was all made up, and it made Boasberg look bad. To those who didn't fully understand the case. At least it gave Republicans a big opportunity to continue to defame him and push for his impeachment. He's not the only district court judge who stood up to Trump who faces impeachment, who then got reversed by scotus. And it just seems to me that where the law is at least as unsettled as it was there, arguably unsettled, arguably was on Boasberg's side, somebody like the Chief justice who's a little bit flexible when he's trying to preserve institutional prerogatives. He could have stood up for the lower court and set a precedent early, early on in Trump 2.0. That said, we're not going to play this game. And instead, he reversed Boasberg, and we still haven't had real contempt proceedings because Judge Boasberg keeps getting blocked on these questions about, well, can he really pursue criminal contempt when the Supreme Court wound up reversing him? It's an awful situation, and all it does is drain vitality and legitimacy from the lower courts and gives the Trump administration even more wiggle room to continue to defy court orders. I mean, let's not forget that the Justice Department official who allegedly declared that they were going to defy Judge Boasberg's order was Emile Beauvais, who is now a judge on the 3rd Circuit Court of Appeal.

Dahlia Lithwick (37:24)

Else, we're going to take a short break.

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Dahlia Lithwick (38:43)

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Courage is the new currency in this country. I'm Sky Perryman, President and CEO of Democracy Forward, where our team of lawyers is fighting in court every day for you, for your rights, and for our democracy. The Trump Vance administration wants us to be exhausted and divided, but when people come together and speak out, courage becomes contagious. And that is how change happens. We've already won cases to defend people and communities, all free of charge. But ahead of 2026, we need you beside us. Join the movement@democracyforward.org.

Dahlia Lithwick (40:16)

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Mark Joseph Stern (40:40)

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Dahlia Lithwick (41:16)

And thank you, really thank you so much for supporting the work that we do. And we're back with what we learned about Trump's supreme court majority in 2025. So here we are at the nut of the thing, which is we really believed, I think, that under some theory or other of three of the six conservative justices are not all in for maga, haven't drunk all of the Kool Aid, genuinely believe that democracy is kind of awesome and that we made a mistake because I think we thought that they cared that with the exception of a bunch of nutters like Bove and Pam Bondi and other kind of discredited a lot of nutters who want to be on the Supreme Court someday, generally, the Trump administration is seen as lawless. And instead what we have seen is all in double down and triple down on the idea that the Trump administration is like every other administration and any judge who tries to thwart it is a woke liberal, including fistfuls of Trump judges, right, who aren't auditioning for the Supreme Court. And what we hear over and over again is just as the court went after DOJ officials during Jack Smith's prosecution of Donald Trump, going after judges now saying, you know, you are clearly, you know, an anti Trump zealot suffering from Trump derangement syndrome. So I think now we are in the very weird obstruction upside downy world where we have, with rare defections, six MAGA justices who are all in for Donald Trump. And this is what I wanted to talk about. Why? Why? Because it's hard to believe that they only go to cocktail parties with the farthest of the far right donors. It's hard to believe that they don't occasionally read the Washington Post or the New York Times. So what. What is going on? And this is the real thing, I think we haven't. Not only have you and I not kind of grappled with, but I'm not sure people who are watching the court have yet satisfactorily explained, at least to my ears, what possible benefit to being the stewards of the maga destruction of America.

Mark Joseph Stern (43:55)

So I guess my top line thesis, and then I want you to dispute it, because I don't know if it's entirely right. But my thesis right now is that these justices have fully cast their lot with Donald Trump and Trumpism and maga. That much is obvious from what we've just said and what we've said on the show almost every single episode in 2025. And part of MAGA is anti democratic lowercase D. Right. Is ensuring that minorities of the country can sort of entrench their own power and their own views through the Senate, through the Electoral College, through the judiciary, through voter suppression, through assaults on democracy and just kind of perpetu this system that privileges the elites, the wealthy, white people, Christians. Right. Non LGBTQ people, and to just kind of keep it going. And I now feel and fear that the Supreme Court is so intertwined with that perception of who deserves power, who can legitimately exercise power, it's only Trump and Trumpists that they need need to protect Trump and protect this entire project from the actual direct forces of democracy. And that is why one of the big pieces of this puzzle that actually we haven't talked about so far on this show is the voting rights stuff is the attack on democracy. The Supreme Court is on the brink of delivering another blow to the Voting Rights Act. Right. It has been green lighting voter suppression for so long, it reinstated the Texas racial gerrymander that benefits Republicans. We can go down the line and think we will, but I do think that almost any conversation of this kind needs to start there. Because what we are seeing is a court that is siding with the Trump agenda, trying to accelerate and facilitate the Trump agenda, and on the other side of it, ensuring or at least trying to ensure that the people that blue states that adults who are capable of voting aren't capable of shaking loose this regime and can't really do anything to stop it and reverse what it has done because there's only one true way. It's originalism, it's Trumpism, it's maga. Right? And anyone who tries to contest that is wielding an illegitimate claim to power. And so that kind of justifies the means of Taking away voting rights and equal representation and democracy and just doing whatever is necessary to oppress the majority and ensure that what the regime's got going now can just keep going forever. Is that too dark?

Dahlia Lithwick (46:32)

No, I think it goes to, again, the way sometimes on this beat, we get absolutely caught up in individual cases and the big blockbuster cases as the avatars of the move for the term, without looking at all the cases in the aggregate. Right. So it is very easy, I think, when you're covering the court to say, oh, you know, the only case that matters is tariffs. Right. The only case that matters is transgender athletes. The only case that matters is birthright citizenship. And to be sure, every one of those cases is a blockbuster. But I think if you look at big themes this year, I think you're exactly right. Voting cases, there are a lot of voting cases on the docket. And we've talked about Calais, you know, the gerrymandering case, We've talked about campaign finance, and then there's a case about mail in ballots that the court will be hearing this term as well. And I think we really need to see the trend line, which is how is it possible that a Supreme Court that now has the same six votes to do anything it wants is taking cases about how people vote, where people vote, how campaigns are financed, how votes are counted? I think it's exactly because these are democracy cases. And so the big ticket, you know, cases with the huge social justice implications and the racial justice implications, it's not to say they don't matter. It's to say, I think in some sense for the US Supreme Court this year, year, it's not like this is a shopping spree. To the extent that there's a shopping spree on this term, I think it's vote suppression. And I think it's because we're barreling into midterms and then barreling into the 2028 election after that. And this Supreme Court has 10 years in the future to achieve all of the big ticket items they want. But the way to achieve that is to make sure, sure that Donald Trump and the Republican Party have a permanent majority. And so I think we just have to really reckon with the fact that these democracy cases, which, by the way, you and I both know Mark, don't get treated nearly as seriously broadly in the public conversation. They're arcane, my God. Try and explain. Campaign finance reform is like a two bourbon job right now.

Mark Joseph Stern (48:53)

Unbearable.

Dahlia Lithwick (48:55)

These are abstractions. And so they get devalued, I think, in the discourse. And I am really sitting with the fact that. And this is the turn that I think we have to make here. 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 stop you when an election comes along, becomes the end game. And I think the turn that I want to make is. And that's because they are staring down the barrel of if the midterms go the way polling suggests they will go, if the 2028 election goes the way polling suggests it will go, they are in big trouble.

Mark Joseph Stern (49:42)

Can I add one more sort of gloomy parenthetical, which is the birthright citizenship case. Absolutely. A social justice case case, also a democracy case. Right. Because it's a case about who gets to be an American, who counts as an American. And if the Trump administration gets its way, would radically reduce the number of people who have a constitutional claim to birthright citizenship who are nonetheless excluded from our polity, unable to participate in basic aspects of civic life because one especially xenophobic and racist and nativist president. President decided that this group of Americans shouldn't actually be Americans. And I think that's a theme that sounds in a lot of these other cases, like who are the people who get to be full and equal American citizens and who gets something more like skim milk citizenship. And so you see like in the voting cases, but also in the civil rights cases, the LGBTQ cases, the affirmative action cases, right. It's straight. White men are the highest form of American citizenship. You know, they get to battle affirmative action action and slay it. They get to secure exemptions from civil rights laws and non discrimination laws. They get to ensure that people they don't like aren't competing against their children in athletics. They, they get this foot in the door anytime they want. They almost got a ban on mifepristone implemented through the judiciary. Right. Like, they just keep winning. They can't stop winning and everybody else is losing. And I think, like, the best example of this that we're looking at right now is you. You mentioned Calais. I think we have to keep talking about it. It's so important. But, you know, 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. Right. Diminish really in a truly radical and far reaching way, the electoral power of racial minorities. And at the same time, it just upheld reinstated a Texas map that was drawn for the purpose of diminishing and altering the elector strength of black and brown communities to give Republicans more power. So the Supreme Court is saying basically states can take a look at a bunch of racial data. They were looking at racial data. It's quite obvious. And draw lines in a way that ensures that people of color can't exercise as much electoral power. But then if Congress wants to enact a law that limits states ability to do dilute the electoral power of racial minorities, then it can't do so and the courts have to step in because of the equal protection clause, right. Because of the 15th amendment. So white people can always run to court and say this map gives too much power to black and brown Americans and they will get a hearing from the Supreme Court and probably a victory. But people of color, if they go to court and say this map isn't giving us enough political power because we were discriminated against on the basis of race, they get nothing, nada from this court. You can see which group gets to be American. And I guess this just folded into our broader conversation of it's the group that likes this Supreme Court, that likes what it's doing, that likes what the administration is doing, that wants all of this to continue and escalate. And it's very difficult to look at these cases without considering the political undertones, which are persistently like the court is favoring Donald Trump's Republican Party and the white men who lead it and entrenching their power in all of these different ways that are going to be extraordinarily hard to undo, even if the regime flipped tomorrow and Democrats had a trip trifecta.

Dahlia Lithwick (53:19)

So it's a really good note to say that you can't hive off even the immigration cases, right? You can't hive off the racial justice cases or as you say, birthright citizenship from these fundamental questions about how does democracy work, right? Who gets to be an American and thus who gets to vote. And I think I want to add one other element to this before we really do talk about the stakes for the Supreme Court. Supreme Court. And that is that I very, very much believe that we need to stop and take a beat and recognize that the John Roberts who has devoted his career to circumscribing and cabining the vote is the John Roberts who started his career dedicated to circumscribing and cabining the vote, that nobody should be surprised that Samuel Alito, that the chief justice, right. That Brett Kavanaugh are here for it. The idea that, you know, they may or may not disagree with the culture war questions in their sort of individual capacity, but many of the folks who constitute the MAGA super majority were put on the court because of voting and voting rights. And so in some sense, we've seen the conservative legal movement fish their wish. It's one of the reasons, I think you and I wanted to take a moment to say, say it's the democracy that is animating everything. And that really does lead me to the stakes question, because we talk about all the time on this show, what are the stakes for women? What are the stakes for LGBTQ communities? What are the stakes for immigrants? But I want to ask the question, what are the stakes for the Supreme Court? Because it seems to me we don't think nearly hard enough about what is on the line for those six MAGA justices. If they don't prevail on this shrinking of democracy enough to change electoral outcomes.

Mark Joseph Stern (55:17)

I think they have reached a point of no return. And I think they are scared of what happens if the political winds switch direction and they are suddenly seeing their grasp on power become more and more tenuous. I think they understand, at least some of them, that they have failed to act as an independ neutral body of jurists. That in the nation's mind, in the mind of a majority of Americans, they are a political body. And that they have, as I said, as I will continue to say, cast their lot with Trump and Trumpism. And so if they had spent the past year sort of giving and taking, standing up to Trump, sometimes giving him wins, other times, we would be in a very different place. I wouldn't say that the justices would have as much to fear by Republicans potentially losing a lot of political power, because I don't think that there would a Democratic appetite for Supreme Court reforms, structural reforms, term limits, or court expansion, adding justices to kind of even out the bench. I think that they could have played this smarter if their goal was to stave off true Democratic backlash. That's lowercase and capital D, I guess. And that would have meant just giving Trump probably like 25% more losses, like just a few more high profile losses for Trump would have given a lot of people the impression, rightly or wrongly, probably wrongly, but still, that the court was more or less doing its job. I mean, people want to see one branch stand in the way of another when it looks like there is an abuse of power afoot. It's one of the few things that everybody retains from their middle school civics class, and they can understand that the Supreme Court just isn't doing that right now. And so I think that the justices know, like, like they are very, very, very, very far down this road. They aren't going to turn around. They are too far down it to turn around. They're not going to spend the next year ruling against Trump. They might in the tariffs case, they probably will in the birthright citizenship case, but they're still going to give him and the Republican Party a whole lot of wins. And this time next year, we'll be talking about those, but we'll also be a few weeks out from the midterms. And, you know, I used to think that Sam Alito and Clarence Thomas were both going to retire very early on in Trump term. I no longer believe that. I'm not even sure if Alito is going to retire. At least right now it seems like he's clinging on. And they know that, you know, they could be replaced by a liberal if they play their hand incorrectly. They are going to worry what happens if they are stuck because there's a Democratic Senate. And so they can't retire because, ha, the Garland precedent says that a Senate controlled by the opposite party just isn't going to consist confirm the president's pick. That's pretty clear at this point. And, and I think that they should be very much worried. I don't purport to claim that this is all going to turn out great, but I think that they are probably sensing a little bit of a growing fear and anxiety and gnawing terror that they are now so intertwined with Trumpism that if the entire Trumpist project falls apart, they might collapse with it.

Dahlia Lithwick (58:29)

I saw a couple of people make the very smart point that the win, win here for the stalwarts is if and when Trump is defeated, they will all get to say, see, he was never a threat in the first place. Right. Which is a little bit of what we heard right in 2020, like, oh my God, all you Trump derangement syndrome people, you know, running around screaming, the sky is falling, like, you were wrong. It wasn't that bad. And I think this is Queen Tuppled at the Supreme Court. In other words, if and when Donald Trump loses in the future, they get to say, see, he wasn't that bad. Right? He was just an ordinary president. And what really frightens me about this is that they will not be seen as the instruments of all his wins. They will just be seen as like, a steady hand in a country that lost its mind and hated Donald Trump. And that really does frighten me in terms of the. The optics of all this. The other piece of this that you have to fold into it is, as you noted, in terms of when they took a moment to say no on a case that went to the Supreme Court. They want to be the deciders. And I think they are perfectly comfortable. If Donald Trump were to lose the next election or if control of the House or the Senate flipped at the midterms, I think they'd be perfectly happy saying, okay, well, now we just have new rules for the new Joe Biden. And they really do have no problem, I think, with the optics of simply changing their mind to bet on the horse that they want to bet on. And so I don't think this looks bad for them, not in the way you. And I think it does. Lashing themselves to Trumpism because in some sense they get to both say, oh, well, the next president is going to have different rules because there are no rules. But more urgently, because I think it will just be blown off. Mark, I hope I'm wrong, as, oh, my God, the United States was never in an existential democratic crisis. This wasn't Pol Hungary, this wasn't Turkey. This was just business as usual and a bunch of crazy liberals trashing the court. So I hope we can get ahead of that conversation before we get the I told you so conversation.

Mark Joseph Stern (60:42)

So a couple things. I think you just alluded to the possibility of Trump running again for another term. And I don't wanna revive the 22nd Amendment conversation. I don't think he's going to.

Dahlia Lithwick (60:51)

Alan Dershowitz says he will and he can.

Mark Joseph Stern (60:55)

But regardless of what all of the very smart lawyers say, and I know it's compl. I just think he's way too old. He's losing steam every day. He's falling asleep in the Oval Office on live tv. There's something wrong with his hands. He's taking way fewer meetings, doing way fewer talks. He is really running out of gas. And so I don't think he's going to run again. And that allows the Supreme Court to dodge another major constitutional crisis, which is, you know, an unprecedented third term bid after the passage of the 22nd Amendment seemingly ended that. But setting all of that aside, I think it's interesting you're worried about optics of the Supreme Court essentially allowing Republicans to lose. Right. Of Republicans losing in 2026 and 2028, and the Supreme Court not stepping in the way of that. And then people cheering on the Supreme Court and saying, look, they were good. The sky really wasn't falling. All of these Cassandras, they were wrong. The Supreme Court is a temple of democracy. Well, I'm worried about that. I'm also more worried about the alternative. What if Republicans lose, but then the Supreme Court reverses it and doesn't allow them to lose? And the Cassandras are proven right, but everybody who otherwise would have been like, see, the Supreme Court is doing the right thing. They're standing out of the way. They're letting democracy take effect. They'll rush in to defend scotus. There's clearly a sizable group of people, politicians, commentators, academics, who just believe in defending this court no matter what it does. And if the Supreme Court thwarts democratic will, which I think is a possibility, and tries to nullify however many votes as is necessary to hand Republicans an honor and victory, whether it's in a presidential race or a Senate race or whatever, however, there will be people who defend it. And so it puts us in this very kind of no win position where it's like, if the Supreme Court does the right thing, then we're accused of being Chicken Littles and Cassandras. If the Supreme Court does the wrong thing, then we're told it's not actually wrong. It can't be, because it's the Supreme Court. And we're accused of, I don't know, you know, schizophrenic critiques that don't hang together of the justices and just being mad about the substance because we're partisans and whatever. Like, you know, we see it all the time. So I'm curious if you think there is anything we can say on this show right now that cannot be written off by a Supreme Court defender as little more than catastrophizing because, of course, everything will turn out fine. The court is trustworthy and a pillar of democracy that shall not fall.

Dahlia Lithwick (63:26)

Yeah, yeah. No, I mean, I think anything that we. Anything that we say at this point, we're doomed. Or, you know. Well, it's not.

Mark Joseph Stern (63:34)

We're boxed in.

Dahlia Lithwick (63:35)

No, I think that we have to keep saying what we. We think with the understanding that, you know, the six MAGA justices on the Supreme Court have been using both journalists and academic critics and critics out in public generally for target practice for quite some time. Right. And I think that an unwillingness to look seriously at the stakes of what has happened to the country on their watch is like, it's not my problem, Mark. It's not your problem. At the end of the day, it's theirs. Our job, I think, think, is to keep saying what is. And to keep triangulating what is against what the rules were only a year ago, five years ago, 10 years ago, when the court cared at least about the appearance of doing justice as opposed to just spinning the wheel and seeing what turns out today in Donald Trump's favor. So this has been a little bit of a dire conversation, Mark, in which first listeners loud and clear, I hope they heard us saying scotus is coming for your democracy. And that seems super bad. Pay attention. I want to close, Mark, with the theme that you and I have been sounding and that I deeply believe, which is there is not much we can do about that. There is a lot we can do about voting and about securing voting and getting out the vote. And the thing that I think the learned helplessness of, of we will eat jelly beans and watch SCOTUS go off the cliff is not what you and I are here for. So I think we end where we often end. These conversations about SCOTUS isn't going to save us. And as we've just flagged, SCOTUS may be in the bag for making it harder to protect democracy. With your thoughts going into 2026 about the fact that none of that is a foregone conclusion. It is not a foregone conclusion, but it would require massively thinking and not just a week before elections. How is it that we make sure that doesn't happen?

Mark Joseph Stern (65:41)

Yeah, that's a big ask. In our Slate plus bonus episode, I will be ranting for quite some time about all of the things that the informed citizenry of this country need to be doing to stave off disaster and to essentially begin another reconstruction of this country and repair the damage that Trump and Trumpism and a MAGA Supreme Court have all done. I have a lot of big ideas. I realize some may think that they're impractical, but I think now is the time to really, really think big and not allow for kind of traditional limitations on democratic courage and willpower to limit how we conceive of this recovery going and what it has to look like and where it needs to lead. I think now is the time for everybody to change. Chip in. We need to ensure that people are voting and complaining and protesting and running for office and setting up the chess pieces so that they are in the right place when the moment comes that this next reconstruction can begin. And I just think not giving up hope still remains somehow after all this time, the most important thing. I mean, we've talked about this. Everybody now talks about the difference between cynicism and Nihilism. It's okay to expect the worst. It's okay to believe that the Supreme Court is going to do some really bad things. But 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. And we don't need to do that, because there is a way out of this mess. I believe it. If I really, really squint, I can start to see it taking shape. But it's going to require everybody who's mad right now, who's mad at as hell, to start getting angry at people who don't believe that this kind of big, sweeping reform can happen, and to start pushing elected representatives and public figures to talk about what it has to look like. Because Project 2025 didn't all sort of fall into place in one day. And Donald Trump's second term was carefully plotted out by people who simply did not accept that there would be limitations on his power. I'm not saying that's a good thing, but I do think the Democrats could learn a thing or two about not automatically shooting down their biggest, most aspirational proposals and thinking very carefully about how they can wield power, not to suppress individual rights and voting rights and all of the things that Trump is doing, but to lift up and enshrine democracy in a way that will be enduring for years to come.

Dahlia Lithwick (68:18)

Your TED Talk is way, way better. But my way of saying the same thing is, you know, every single time somebody sends a note that says nothing matters because the Supreme Court is going to screw us in the end, like, Stephen Miller gets his wings. I refuse to live in a world in which Stephen Miller has wings or even credibility. And so I think we have to do the hard work. And the other thing is, and we're gonna talk about this, Mark, you and I, in the plus bonus segment that's coming up. But I think we need to understand that so many of the loopholes that have been exploited to constrict the vote are preexisting. Right? They are baked in to the operating system. You know, whether it's the Malaportion Senate that you reference, whether it's gerrymandering, whether it's big money in politics. So much of this has never yet been perfected. So we can't walk around, and Sherlyn Ifill made this point on the show a couple of weeks ago. We cannot 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, as you said, who agrees to be a poll watcher, who agrees to be a poll worker, who runs for some office. Right? That is how democracy will get perfected. And the fact that these glitches in the system have been weaponized to make it look as though democracy is unachievable. No, those are glitches in the system that come from the founding and can be fixed. But it's not the kind of thing that's gonna happen if you put in an hour a week on this. It can only be fixed if people really recommit to the proposition that what American democracy is is not decided by six justices or five justices at the Supreme Court. It is decided by every single person who listened to this podcast and is very, very frustrated. Our point here isn't to frustrate people. It's to say happy New Year. There's a lot of work to do.

Mark Joseph Stern (70:22)

Yeah. Yeah. So let's get going.

Dahlia Lithwick (70:26)

That is all for this episode of Amicus. Happy New Year. Thank you so much for listening. If you are starved for more, join us in the Amicus plus bonus episode right after this one. We are rifling through our mailbag which is bursting at the seams with very smart questions from our loyal plusketeers. This is your last chance to get a year of slate plus for just $59. Our special 50% discount offer expires at the end of the year.

Mark Joseph Stern (70:54)

So go to slate.com amicusplus and enter promo code amicus50.

Dahlia Lithwick (71:00)

That's amicus50 to get your special offer. That bonus episode is available for you to listen to right now. We'll see you there.

Mark Joseph Stern (71:08)

A big thank you for your letters and questions. Keep them coming.

Dahlia Lithwick (71:12)

We are always reachable by email@amicaslate.com we love your letters. You can find us at facebook.com amicus podcast.

Mark Joseph Stern (71:20)

You can also leave a comment if you're listening on Spotify or on YouTube or rate us and review us on Apple Podcasts.

Dahlia Lithwick (71:27)

Sarah Burningham is Amicus's Senior producer. Our producer is Patrick Fort. Hilary Fry is Slate's Editor in chief. Susan Matthews is Executive editor. Mia Lobel is executive producer of Slate Podcasts and Ben Richmond is our Senior Director of operations. We will be back with another episode of Amicus next year, which means next week. Until then, take good care.

Mark Joseph Stern (71:57)

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Dahlia Lithwick (72:21)

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