Amicus With Dahlia Lithwick: "With Kennedy Gone, What’s on the Chopping Block?"
Date: June 30, 2018
Host: Dahlia Lithwick
Guests: Mark Joseph Stern (Slate), Leah Litman (UC Irvine Law)
Main Theme
This special episode dissects the seismic end to the Supreme Court term marked by the retirement of Justice Anthony Kennedy. Dahlia Lithwick is joined by legal experts Mark Joseph Stern and Leah Litman to reflect on Kennedy’s legacy, what his exit means for the court and American law, and to analyze the most consequential decisions from the term — with a focus on how the balance of the Court could shift and what landmark precedents may now be under threat.
Key Discussion Points & Insights
1. The Shocking Retirement of Justice Kennedy
[01:41-07:29]
- Surprise and Reaction:
- Mark Joseph Stern admits being "shocked" over Kennedy’s retirement, noting insider reporting on Trump’s team courting Kennedy (02:09).
- Leah Litman was "painfully right," having anticipated the likelihood based on Kennedy's recent opinions and connections between the Kennedys and the Trumps (03:49).
- Personal and Political Dynamics:
- Discussion on the relationship between Kennedy’s son and Trump’s family, particularly via Deutsche Bank loans, and what it reveals about elite networks (07:02-09:33).
- Both panelists agree the implications are less about scandal and more about insularity and loyalty among powerful circles.
Memorable Quote:
"I was shocked. I had no idea that the Trump team has been just extraordinarily clever at courting Justice Kennedy...stoking his ego, at paving the way for his retirement..."
— Mark Joseph Stern [02:09]
2. Kennedy’s Shifting Judicial Philosophy
[11:21-16:57]
- Kennedy’s Final Concurrences:
- Analysis of Kennedy’s diminished willingness to check executive power as reflected in his Trump v. Hawaii concurrence.
- Leah: compares Kennedy’s muted tone in Trump v. Hawaii with his impassioned dissent in Masterpiece Cakeshop [11:21-13:46].
- Mark: Kennedy, once an active check on executive overreach, now appears to lose his nerve [15:42].
- Legacy and Enabling Trumpism:
- Leah argues Kennedy’s departure allows his integrity and name to be used to justify Trump’s agenda (13:46).
Memorable Quote:
"He enabled it...the man who valued decorum and propriety...his name is now going to be used to justify all of the things this administration does counter to that."
— Leah Litman [13:46]
3. Major Cases & Conservative Wave
Janus: Blow to Public Sector Unions
[17:21-21:43]
- Mark summarizes the Janus decision, which overturned the 40-year-old Abood precedent and kneecaps unions by making fair-share fees unconstitutional.
- Leah urges listeners to read Kagan’s dissent as a warning of an era where the First Amendment becomes a tool against economic and social regulation [21:48].
Quote:
"The whole thing is based on this really kind of outrageous, almost laughable theory of the first amendment that I think has anti union, anti labor ideology baked into it."
— Mark Joseph Stern [17:21]
Weaponizing the First Amendment: Masterpiece Cakeshop & NIFLA
[22:46-35:53]
- Leah dissects the stark contrast between how the Court handled religious animus in Masterpiece Cakeshop (spotting it in a commissioner’s remark) versus overlooking the President’s explicit anti-Muslim rhetoric in the Travel Ban case, Trump v. Hawaii [22:47-24:37].
- Explains NIFLA v. Becerra as part of a trend where compelled speech doctrine is expanded to block government regulation, often in ways favoring conservative interests [31:17].
Breyer’s Memorable Line:
"Justice Breyer had the best line of the term in his dissent, which was just really question mark."
— Leah Litman [31:17]
Civil Rights and Constitutional Protections at Risk
[27:46-30:45]
- Mark summarizes the Texas racial gerrymandering decision: The Court gives the benefit of the doubt to states, making it nearly impossible to prove intentional racial discrimination unless overt.
- Leah draws parallels to how prior promises in precedent (e.g., Citizens United, Shelby County) are undermined in subsequent terms.
Epic Systems: Restricting Workers’ Rights
[36:13-39:10]
- Mark calls Epic Systems the "Magna Carta for labor" being gnawed away, as the Court puts employers’ arbitration clauses over collective action protections.
Quote:
"Section 7 of the NLRA, again, the magnificent Magna Carta of labor rights in the United States, that's a mouse hole." — Mark Joseph Stern [36:13]
Notable Quotes & Moments
-
On Supreme Court's ideological drift:
"Progressives, the First Amendment is coming for your economic and social regulations, and be prepared."
— Leah Litman [39:10] -
What’s on the Chopping Block with Kennedy Gone:
"Affirmative action...broader religious exemptions...restrictions on independent agencies."
— Leah Litman [40:31]
"[Ending] juvenile life without parole...Trump’s ban on transgender troops..."
— Mark Joseph Stern [40:57] -
Advice to Concerned Progressives:
"Enough of this procedural Mitch McConnell did it...No, say how you think they're going to vote. Say what you think they're going to do...build a record and figure out how to talk to your constituents about the court and get them to care."
— Leah Litman [43:19] -
On statehood for DC and Puerto Rico:
"...think about making statehood for Puerto Rico and D.C. It is inexcusable that those people are not represented in the Senate and Dems need to figure that one out."
— Leah Litman [45:09]
Timestamps for Important Segments
- 00:31 — Breyer’s best line of term; panel introductions
- 01:41–07:29 — Kennedy’s retirement reactions and backstory
- 07:29–09:33 — Deutsche Bank & elite networks
- 11:21–16:57 — Kennedy's Trump v. Hawaii concurrence, changing philosophy
- 17:21–21:43 — Janus decision and impact on unions
- 22:46–24:37 — Religious animus compared: Masterpiece Cakeshop vs Trump v. Hawaii
- 27:46–30:45 — Texas racial gerrymandering case explained
- 31:17–35:53 — NIFLA/Becerra and compelled speech
- 36:13–39:07 — Epic Systems' blow to labor rights
- 40:31–42:26 — What’s next? Precedent most at risk
- 43:19–45:25 — Realistic options for Democrats
- 45:53 — Closing thanks
Episode Tone & Final Takeaways
The conversation is candid, weary, and frequently laced with dark humor reflecting frustration and concern for the future of the Supreme Court and constitutional law in the Trump era. The panelists lament what they see as decision after decision eroding civil rights, empowering corporations, and weaponizing constitutional provisions—particularly the First Amendment—against progressive policies. Kennedy’s departure, which removes the pivotal "swing" justice, signals to them the transformation of the Court into an even more openly conservative institution.
Summary Table: Key Cases Discussed
| Case | Issue | Ruling/Impact | Timestamps | |------------------------ |-------------------------------------|------------------------------- |--------------| | Janus | Union fair share fees | Struck down; blow to labor | 17:21–21:43 | | Trump v. Hawaii | Travel ban, religious animus | Upheld; deference to prez | 22:46–25:09 | | Masterpiece Cakeshop | Religious freedom/discrimination | Found anti-religious animus | 22:47–24:37 | | NIFLA v. Becerra | Crisis pregnancy centers, speech | Struck regulation as compelled | 31:17–35:53 | | Epic Systems | Worker arbitration agreements | Upheld, limits class action | 36:13–39:07 | | Texas Gerrymandering | Racial bias in redistricting | Court largely overlooks bias | 27:46–30:45 |
This episode is a must-listen (or read) for understanding the stakes of Justice Kennedy’s retirement, the term’s pivotal decisions, and what’s likely to come for the Supreme Court — and for American law more broadly — as the Trump era reshapes the judiciary and the nation.