Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: "Will You Accept This Robe?"
Date: February 3, 2017

Episode Overview

This episode of Amicus, hosted by Dahlia Lithwick, covers a pivotal moment for the U.S. Supreme Court and the American legal system in early 2017. Lithwick grapples with the challenge of objectivity in the face of what she calls the Trump administration’s “demonstrably racist and misogynistic” actions and signals a new editorial stance: the show will not provide cover for legal nihilism. The episode features in-depth analysis of President Trump's nomination of Neil Gorsuch for the Supreme Court, including a conversation with Elizabeth Wydra from the Constitutional Accountability Center. It also delves into mounting legal resistance to the Trump executive order on immigration, focusing on the practical and constitutional tensions revealed when federal agencies may be ignoring court orders. The show rounds out with on-the-ground insights from journalists and lawyers directly involved in early lawsuits against the travel ban.

Key Discussion Points & Insights

1. Changing Editorial Approach and the Trump Administration

• Lithwick’s Opening Editorial [00:05–01:57]:
  • Dahlia Lithwick sets the tone for the episode, declaring that the podcast will no longer strive for balance where there is "legal nihilism" and "demonstrably racist and misogynistic" actions from the Trump administration.
  • Quote: “We’re not going to give intellectual cover to what we think of as legal nihilism.” (Lithwick, 01:17)

2. The Nomination of Neil Gorsuch to the Supreme Court

Guest: Elizabeth Wydra, President, Constitutional Accountability Center

Gorsuch’s Background & Stipulations [03:15–04:07]

• Lithwick and Wydra agree to “stipulate” to Gorsuch’s character and intellect: “He has a lovely family. He’s an incredibly smart and thoughtful writer …” (Lithwick, 03:19)
• The crucial question: Not whether Gorsuch is “nice,” but whether he will faithfully uphold the Constitution.

Progressive Concerns and Burdens [04:40–05:37]

• Wydra: Gorsuch faces a "heavy burden" to show he'll be an independent check on the president, especially amid concerns about the Trump administration flouting constitutional norms.

Gorsuch on Major Issues

• Abortion & Women’s Rights [05:56–07:40]:

  • Trump’s campaign “litmus test” for overturning Roe v. Wade is highlighted.
  • Gorsuch’s record: Supported limiting access to contraception under the ACA, sided with expanding “religious liberty” for corporations (Hobby Lobby case), and would have supported defunding Planned Parenthood.
  • Quote: “There’s real cause for concern that he would be very hostile to women’s rights to abortion and contraception coverage.” (Wydra, 07:31)

• Gun Rights and Litmus Tests [07:40–09:43]:

  • Gorsuch’s record on the Second Amendment is unclear, but Trump’s explicit promises raise red flags. Wydra cautions against any justice who feels they “owe” the president a vote.
  • Trump also promised a justice who would favor “religious liberty” in a way preferred by evangelicals—Wydra warns against privileging one religion.
  • Quote: “They’re not there to privilege one religion over another … this is also very concerning.” (Wydra, 09:21)

• Judicial Deference & Chevron [09:43–13:13]:

  • Lithwick introduces the doctrine of Chevron deference; Wydra explains (wonkily) that Gorsuch rejects this principle, which historically allows agencies like the EPA regulatory authority unless their rules are unreasonable.
  • Removing Chevron would undercut key regulations (workplace safety, environment, anti-discrimination) and is seen as part of a conservative agenda to reduce the administrative state.

• Judicial Humility Paradox [13:13–14:37]:

  • Gorsuch espouses “restraint and humility,” yet wants judges to more aggressively oversee agencies—a tension tied to ideology, not just judicial philosophy.

• Mainstream or Not? [14:37–18:35]:

  • Wydra is wary of “mainstream” language, instead focusing on constitutional fidelity.
  • She critiques Gorsuch’s understanding of the Constitution, particularly the lack of engagement with post-Civil War amendments and the rights of marginalized groups.
  • Cites concern about Gorsuch's criticism of litigation strategy used to win marriage equality:
    • “That really troubles me because that is a right that's in the Constitution … It is your job, judicial branch, to vindicate that right for me.” (Wydra, 17:13)

Progressive Strategy and Triage [18:35–19:44]

• Should progressives prioritize the Gorsuch fight amid other “existential threats" created by Trump?
• Wydra argues this confirmation is crucial, as justices shape the Court for decades.
• “It is entirely appropriate to ask Neil Gorsuch … if the Trump administration refuses to comply with an order … is that a constitutional crisis?” (Wydra, 20:11)

Hearings, Filibuster, Politics [22:06–26:33]

• Gorsuch likely won’t answer specifics, but the Trump context "raises the burden" for him to prove his independence.
• Wydra defends the current Democratic stance on filibuster and urges that “every justice on the court is important.”
• On not just letting the confirmation go quietly:
  • “I was deeply disheartened by what happened to Merrick Garland … The fact that those norms were basically exploded is not good in the long term for the American people.” (Wydra, 25:51)

3. The Constitutional Crisis: The Immigration Executive Order

Guests: Mark Joseph Stern & Leon Neyfakh (Slate journalists), Simon Sandoval-Moshenberg (immigration attorney)

The Reality on the Ground [28:27–31:51]

• Trump’s order banned citizens from several Muslim-majority countries.
• Lawsuits and emergency stays proliferated—lead case by Judge Ann Donnelly in Brooklyn.
• Despite judicial orders, questions arose about federal agent compliance at airports.
• Stern: Some CBP (Customs and Border Protection) officers “interpreting these orders simultaneously, narrowly and rather generally” ([32:53]).

Compliance vs. Obfuscation [31:51–36:05]

• CBP at times claims adherence, but interprets “detention” loosely—by moving or interrogating people without “official” detention, they may skirt orders.
• Stern: Lawyers at Dulles Airport found it impossible to verify compliance; suspicions arose about black sites and noncompliance.

What If Agencies Ignore Court Orders? [36:05–38:04]

• Constitutional law experts divided on the consequences.
• Some foresee courts ordering U.S. Marshals to enforce compliance—a scenario both “straightforward and a little terrifying” ([36:53]).

Attorney and Journalist Insights [38:04–40:05]

• Even many Justice Department career lawyers feel “in panic mode.” After Acting AG Sally Yates’ firing, confusion reigns.
• Confirming Jeff Sessions as AG may not solve chaos, especially since he helped craft the order.

4. Real-World Litigation: The Aziz Brothers Case

Guest: Simon Sandoval-Moshenberg (Legal Director, Legal Aid Justice Center)

The Aziz Brothers’ Story [41:21–44:44]

• Young Yemeni-American brothers—land in Virginia with newly issued immigrant visas.
• Pulled off their flight, detained, denied access to lawyers, coerced into “voluntarily” relinquishing their visas, then put on a flight back to Ethiopia, later moved to Djibouti.

Legal Response & Order Compliance [44:44–50:43]

• Lawsuit filed for their return and reinstatement of their visas.
• TRO (temporary restraining order) demanded access to counsel for those detained.
• Despite TRO: CBP agents “not even coming out from their office,” lawyers (and even Sen. Cory Booker) rebuffed. Subsequently, CBP claimed compliance by having sent everyone away—Wydra and others considered this a violation of the order's spirit.

Ongoing Impact and Government Response [50:43–52:37]

• Situation shifted: Instead of airports full of detainees, now people simply can’t board flights.
• The order’s impact lingers in less obvious but equally harsh ways.

Constitutional Issues and the Travel Ban [56:33–57:43]

• Sandoval-Moshenberg argues: The executive order is illegal both for “religious animus” (targeting Muslims) and due process violations (retroactively barring people en route).
• “My fear is that he's going to add some non Muslim countries just to try to provide evidence that it's not based on religious animus … There's due process issues. Due process says you can't apply that order to someone who hasn't had notice, an opportunity to be heard.” ([56:59])

Notable Quotes & Memorable Moments

• Lithwick on Editorial Independence [01:17]:
  "We're not going to give intellectual cover to what we think of as legal nihilism."

• Wydra on the Supreme Court’s Mission [04:07]:
  “We're not looking to have someone be America's next best friend. This is an important question of can you follow the Constitution?...”

• Wydra on Gorsuch’s Responsibility [05:13]:
  “He has a really heavy burden to show that he will follow the Constitution instead of a conservative political agenda…”

• Wydra on Reproductive Rights [07:31]:
  “There’s real cause for concern that he would be very hostile to women’s rights to abortion and contraception coverage.”

• Wydra on Religious Litmus Tests [09:21]:
  “They’re not there to privilege one religion over another. Obviously, this is a lot in the conversation these days…”

• Wydra on Chevron Deference [13:02]: “It is really something that conservatives have taken up as a hobby horse… to get rid of a lot of the modern day administrative state…”

• Wydra on Amending the Constitution [15:31]:
  “They… forget everything that happened after 1789 and the way that we amended our Constitution in line with what the Founders thought we should do.”

• Mark Joseph Stern on Enforcement [34:25]: “They have suggested that they don't think it qualifies as detention… if they hold visa holders… for extensive questioning for hours and hours on end… Under really long lines of case law, that would be considered a detention. But officers say, no, it's not.”

• Sandoval-Moshenberg on CBP Noncompliance [48:48]: “At 9:20pm… there were still dozens of people being held… The order specifically stated that they were to be granted access to counsel… We spent the next three hours… trying to get someone… to take our calls. No one was picking up.”

• Sandoval-Moshenberg on Due Process [56:59]: “Even if you were to put forward an order that says… certain people are not going to be allowed to enter… there’s due process issues. Due process says you can’t apply that order to someone who hasn’t had notice, an opportunity to be heard about it…”

Timestamps for Important Segments

• Editorial shift in the Trump era: [00:05–01:57]
• The Gorsuch nomination and its stakes: [02:29–26:33] (esp. progressive criteria for confirmation [04:31–05:37], abortion and religious liberty [05:56–09:43], Chevron and administrative law [09:43–14:37])
• Airport crisis and rule of law: [26:57–40:05] (legal response to the ban, compliance concerns)
• Lawyer’s account of early litigation (Aziz brothers): [41:21–54:54]
• Constitutional critique of the executive order: [56:33–57:43]

Conclusion

This episode captures a legal system at a crossroads, as the courts, lawyers, and public grapple with unprecedented executive actions and a rapidly shifting political climate. Through engaging and unflinching conversation, Amicus highlights the stakes of the Gorsuch nomination, the fraught mechanics of enforcing court orders in the face of executive resistance, and the lived human consequences for immigrants. The tone throughout is urgent, candid, and deeply committed to the constitutional values at the heart of the law.