Yes, Supreme Court Decisions Really Matter

Summary

Amicus With Dahlia Lithwick | "Yes, Supreme Court Decisions Really Matter"

Slate Podcasts | February 28, 2026

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Episode Overview

This episode of Amicus centers on the critical question: Do Supreme Court decisions still matter in the current tumultuous political climate, particularly as the Trump administration aggressively challenges the boundaries of law, tradition, and institutional norms? Host Dahlia Lithwick is joined by Donald B. Verrilli Jr. – former Solicitor General of the United States – for a wide-ranging discussion about the evolving relationship between the Supreme Court, the Justice Department, and the executive branch. The episode also delves into the recent landmark tariffs case, its implications for the Major Questions Doctrine and executive power, and the challenges facing lawyers within government institutions. The show closes with a segment on the extraordinary acts of Judge Aileen Cannon and the launch of the new newsletter, Executive Dysfunction.

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Key Discussion Points & Insights

1. The Changing Nature of the Supreme Court & Executive Power

[02:14–06:22]

• The current administration has repeatedly tested the limits of executive power, putting the Court in unprecedented positions.
• Verrilli notes that the crux of the problem is not the Court changing, but the administration "just not being on the level," making unprecedented and sometimes pretextual arguments.
• The Chief Justice struggles between protecting the long-term institution of the presidency and responding to executive overreach:

  "If they start saying in case after case, 'this administration's arguments are just a pretext,' that's going to transfer an enormous amount of power from the president to the courts... and they don't want to do that." — Donald Verrilli [06:22]

2. Tariffs Case and Signals from the Chief Justice

[08:37–13:17]

• Discussion of recent Supreme Court decisions, particularly the tariffs ruling, seen as a critical check on executive abuse.
• The Chief Justice’s opinion included unusually direct condemnations of administrative misconduct, but did not use these as the legal basis for the ruling.
• Critique of the government's brief, which Verrilli describes as reading "like it was written by President Trump himself":

  "I would have been tempted to jump off the roof of the Justice Department rather than file a... brief with my name on it that had that as its first page." — Donald Verrilli [10:44]

3. Role of the Solicitor General and Institutional Integrity

[13:17–16:22]

• Explains the SG's role—not the President’s personal lawyer, but tasked with balancing independent legal judgment and advancing the President’s legitimate goals.
• Verrilli recalls the autonomy he had under Obama, contrasting it sharply with the pressure now felt by the SG’s office under Trump.
• Emphasizes the importance—now eroding—of institutional respect for DOJ and SG independence.

4. Judicial Independence vs. Real-World Awareness

[18:50–24:05]

• Discussion of the Court’s traditional insulation from "real world" concerns, and how this detachment can be both virtue and vice in fraught times.
• Lithwick and Verrilli debate whether the recent decision reflects a healthy balance between legal abstraction and real-world problems, especially in response to direct threats from the President:

  "I do think they're acting in good faith... Seeing the capricious way in which that power was being abused by the President, they just weren't going to do it." — Donald Verrilli [21:32]

5. Judicial Tone and Division Within the Court

[24:05–27:49]

• The delay in the tariffs decision attributed to inter-justice "dunking" and "internecine face booping," reminiscent of the late Justice Scalia.
• Verrilli criticizes extended academic back-and-forth in high-stakes cases, arguing it detracts from necessary unity:

  "There was actually an opportunity for... commonality there. And it seemed unfortunate to me that the Court didn't speak with a more unified voice..." — Donald Verrilli [25:22]

6. Precedent, Major Questions Doctrine & The Path Ahead

[28:12–31:47]

• The decision’s relationship to past cases like Youngstown, the future of the Major Questions Doctrine, and how the Trump court may approach unchecked executive power.
• Verrilli doubts the ruling signals "buyer’s remorse" or regret concerning the immunity decision, but acknowledges future developments may force reconsideration.

7. Remedies and Limitations of Judicial Action

[32:02–34:00]

• The Court prudently avoided specifying remedies, noting that downstream litigation in the Court of International Trade is the correct forum for those issues.
• Verrilli concedes Congress may eventually need to act legislatively.

8. Reconciling Faith in the Court with Hard-Earned Cynicism

[34:00–38:21]

• Lithwick presses Verrilli: How does one continue to believe Supreme Court litigation matters, given recent devastating setbacks and a Court often friendly to executive overreach?
• Verrilli counters with historical examples of lost causes ultimately prevailing, namely LGBTQ rights and civil rights, underscoring the necessity of "hard-nosed faith":

  "When people decided not to give up entirely... enough good things have happened that it means having that hard nosed faith." — Donald Verrilli [35:24]

9. Courage of Lower Court Judges and Lawyers Standing Up to Power

[41:51–44:04]

• Highlights the important role of federal judges who rule against overreach, preserving rule of law for the public record, even when victories are small or temporary.
• Verrilli links this to the difference between a "normative law" society and a "prerogative law" system—a warning against slipping into unchecked executive authority.

10. Justice Department Morale, Ethics, and Exit/Loyalty Dilemmas

[44:04–47:55]

• Discussion of the toll on DOJ staff, especially young lawyers, during crises of legitimacy and ethics.
• Verrilli expresses empathy for those torn between staying to mitigate harm and those who feel compelled to leave:

  "I try to extend some grace to the individuals involved... I just have a lot of sympathy for people in that situation." — Donald Verrilli [46:06]

11. Justice Brennan’s Example and Lessons for Today

[48:07–51:49]

• Verrilli shares lessons from clerking for Justice William Brennan—optimistic persistence and the centrality of human dignity in constitutional interpretation despite political headwinds.

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Notable Quotes & Memorable Moments

• On the SG’s role vs. White House pressure:

  "You're not the President's lawyer. It's not your job to inhabit the legal world he inhabits..." — Dahlia Lithwick [13:17]

• On maintaining faith:

  "What choice do we have? It's either this or give up entirely... having that kind of hard nosed faith." — Donald Verrilli [35:24]

• On judicial courage:

  "They are articulating the idea that, no, we have a rule of law, we're standing up for the rule of law, we'll even stand up for the rule of law knowing we're going to be criticized and maybe at some risk for doing it..." — Donald Verrilli [41:51]

• On generations knowing only a Trump court:

  "For pretty much his entire life, all he’s known is the Trump world." — Dahlia Lithwick [47:55]

• On Justice Brennan:

  "He realized there were victories to be had... even in those difficult circumstances. That’s a lesson I took from him." — Donald Verrilli [49:18]

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Extended Segment: Judge Cannon & “Executive Dysfunction”

[53:14–62:53]

Judge Eileen Cannon’s Transparency Suppression

• Mark Joseph Stern explains Judge Cannon's order forbidding DOJ from releasing or sharing volume two of Jack Smith’s special counsel report on Trump’s classified document case—even with Congress.
• Sharon Ali expands on the unprecedented nature of this order, the lack of jurisdiction, and its apparent purpose to curry favor for a Supreme Court nomination:

  "So on all fronts, Cannon's order is just completely unprecedented and inappropriate. Honestly." — Sharon Ali [59:11]

Launch of Slate’s “Executive Dysfunction” Newsletter

• The newsletter aims to highlight must-know legal news about the Trump administration’s manipulation of law and areas where the rule of law is still asserted.
• Sign up info at slate.com/dysfunction or slate.substack.com.

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Important Timestamps

• [02:14] – Lithwick frames the week’s theme: “Where the law really, really matters, and where the Supreme Court’s decisions also really, really matter.”
• [06:22] – Verrilli on the courts’ dilemma with an administration “not on the level.”
• [10:44] – Direct critique of Trumpian legal arguments and the Chief Justice’s pushback.
• [21:32] – Verrilli: “I do think they’re acting in good faith...”
• [25:22] – On judicial “face booping” and unity in landmark rulings.
• [35:24] – Verrilli’s theory of faith-and-struggle in legal advocacy.
• [46:06] – Discussion on the emotional/ethical toll and “grace” needed for DOJ attorneys.
• [49:18] – Lessons from Justice Brennan.
• [53:14–62:53] – Mark, Sharon, and Dahlia on Judge Cannon, the new newsletter, and judicial lawlessness.

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Summary Takeaways

• Supreme Court decisions absolutely still matter, both in the immediate and as part of a long historical arc.
• The present crisis is not so much about changes within the Court, but unprecedented demands and behavior from the executive branch.
• Persistence, institutional integrity, and a faith rooted in past long-haul legal struggles remain essential.
• The legal fight continues not only at the Supreme Court, but in federal district courts and within embattled government agencies.
• New tools like Executive Dysfunction are being developed to help the public track rule-of-law issues amid administrative chaos.

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Amicus delivers frank, hopeful, and clear-eyed legal analysis for a time when the stakes—and the institutional pressures—could hardly be higher.

Transcript

[Donald Verrilli]

Hace enviedo muchisimos correos a tu preparador de impuestos y nada son puras vueltas. Pero ahoro un experto de turbotax te preparatus in puestos puedes contactara un experto yar le todala informacion tributaria directa mende des la en lucaria de vinar puedes estar seguro experto de turbotax se cargara de todo ahora los nac intuit turbotax visita turbotax punto com para mas informacion solo dis poniable con turbotax experts actual sessiones in tiempo real solo en applicacion mobil para iOS. This episode is brought to you by Planned Parenthood Federation of America. The courts matter. The law matters. And so do the people behind the cases, the patients, families and communities Planned Parenthood serves every day. This year, attacks on reproductive freedom have been relentless. The Trump administration and Congress passed a law to defund Planned Parenthood, a move that puts the health of 1.1 million patients across the country at risk. Planned Parenthood is in court to keep this law from taking away care from millions of people, but they urgently need your help. You can rush your gift by visiting plannedparenthood.org defend no matter the size, your donation makes a real difference, helping Planned Parenthood protect access to care when it matters most. Don't wait. Donate [e-mail] defender.

[Dahlia Lithwick]

This is Amicus Slate's podcast about the courts and the law. I'm Dahlia Lithwick. Are they still invited to your State of the Union next week?

[Donald Verrilli]

They are invited.

[Dahlia Lithwick]

Barely.

[Donald Verrilli]

They're articulating the idea that, no, we have a rule of law. We're standing up for the rule of law. Three are happily invited.

[Dahlia Lithwick]

No, no, they're barely. They're barely invited.

[Donald Verrilli]

Honestly, I couldn't care less if they come. They'll even stand up for the rule of law, knowing we're going to be criticized and maybe at some risk for doing it. But we're going to do. Keeping that idea alive and vital and a source of energy is really, really important.

[Dahlia Lithwick]

The last seven days since last we spoke have seen a pitched battle of dueling op ed pieces over last week's tariff ruling and what it does or doesn't tell us about this shifting axis of power and control that exists between the Supreme Court and President Donald Trump, about whether to take the Roberts court seriously and literally as an institution that can constrain this President or whether placing, quote unquote good outcomes from a stacked and captured court into the win column is just hopelessly naive. And while this is by no means going to be a show about the theatrics and the optics of Trump v. The Supreme Court post tariffs, or what we could glean from the longest, most hateful State of the Union speech in history, it is a show about versus the judicial branch and specifically the court that sits at its head. Far more consequential than Trump's declaration of the withdrawal of capital letters from scotus or his description of justices on the highest court in the land as fools and lap dogs for failing to be his fools and lap dogs, there is still a meaningful question about whether they can and will stop him and when. So this is the theme along which we are trying to live, and we want to focus in on it this week. Where the law really, really matters, and where the Supreme Court's decisions also really, really matter, and the President berating Justices to their faces also really matters. But where institutional capture and authoritarian creep dressed up as law requires just teetering on the seam somewhere between complete credulousness and total nihilism, I can think of nobody who describes and navigates that space between law and chaos better than Donald B. Verrilli Jr. Former solicitor general of states from 2011 till 2016, now a partner with Munger, Tolles and Olson, and the founder of its Washington, D.C. office. Since joining that firm after his government service, Verrilli has handled numerous big cases at the US Supreme Court, including racking up victories in Moore v. Harper, rejecting the independent state legislature theory, and California v. Texas, which upheld the Affordable Care act as Solicitor General under Barack Obama, he argued some of the most important cases heard at SCOTUS in that, including the original Affordable Care act case and Obergefell, which recognized the right to marriage equality. Don's awards and honors are far too many to mention, but he is also a lecturer in law at Columbia Law School, where he teaches classes on the First Amendment and the Supreme Court. Don Varilli, welcome back to the podcast. Last time we spoke was about 10 years ago, and we had an exit interview of sorts immediately after you left the SG's office in 2016.

[Donald Verrilli]

Well, thank you, Dalia. It's great to have a chance to talk with you again.

[Dahlia Lithwick]

I want to talk about where we are in this moment because I think, as you know better than most people, we're at a really critical moment, but I thought it might be useful to begin this conversation with where we came from and as I've said a couple times, you served as the sg. When we try to say to people, we are in a different world, a year and change into the Trump administration, sometimes I think it's hard for people to see how and why they think it's like a slightly different world. Okay. You know, the players are a little different. There's a little more saltiness coming from the SG's office. But, you know, there's still oral arguments, there's amicus briefs. Decisions come down. Some decisions even come down on the merits. Docket still. And yet the Justice Department is unrecognizable. Some of the arguments that are advanced by the Trump administration in some cases are laughable and dangerous. Every day, in every way, we are through the looking glass at the. The Supreme Court and the practice of law at the Supreme Court. And also for most people who are listening, it looks the same. So can you even tell me, in some material way, as somebody who took this practice extremely seriously for a lot of years and still does, what's different?

[Donald Verrilli]

Yeah, I don't think the difference is with the court. I think the difference is with the administration, as you suggested. And the way I think about it, it's kind of a simple idea, but it helps illuminate things for me so much now is just not on the level. It's just not on the level. The administration is doing things that nobody thought presidents and executive branches had the power to do and making arguments that nobody thought you'd see the Justice Department making. And it poses this giant challenge for the Supreme Court and the federal judges generally. What are they supposed to do? They know that things aren't on the level, but if they start saying in case after case, well, this administration's arguments are just a pretext, you know, effectively, that's going to transfer an enormous amount of power from the president and the presidency over to the courts, because they'll be able to second guess almost everything on those kinds of grounds, and they don't want to do that. You know, this came up some in the first Trump administration. I thought, you know, the census case was a pretty good example of that, where the Justice Department claimed that they were using census data to actually help secure voting rights. But we learned instead that they were using it to help Republican states gerrymander the hell out of their congressional districts. And, you know, and the kind of. The Chief justice called him out on that in the opinion. And the DACA case in the first Trump administration was kind of like that, too, where nobody wanted to take responsibility for killing off daca. And again, the Chief justice said, come on, no game playing. But most of the time, they feel like they can't just say, this is not on a level. We're not going to countenance it, because they think of themselves as writing rules for the presidency generally for the future, and not just for this one president, who you and I think is completely apparent. And I think probably many of the justices also think is maybe not as apparent as we think, but somewhat apparent. I just think that's a big challenge for them, and that's what many of the cases really are sort of boiled down to. How are they gonna deal with that problem?

[Dahlia Lithwick]

It's interesting that you raise the census case because it was one of those moments where you kind of watched the Chief justice just puncture the veil and essentially say, don't come in here and lie to me, or at minimum, lie better. Do a better job of creating a pretextual reason for this, but don't come in here and expect me to just swallow it. Linda Greenhouse had a really thoughtful piece, I thought, this week in the New York Times, where she talked about the ways in which the Chief justice had this one paragraph in the tariffs argument, where it was really clear, by the way he described, you know, and on Tuesday, the tariffs were this. And the next day, you know, are we at war with the whole world? You know, the ways in which the Chief justice went way beyond what we would call dicta into what felt like simply condemning the Trump tariffs policy. And Linda used it to sort of make the point that has John Sauer lost the chief, you know, and she referenced the oral argument in the Lisa Cook case where Sauer opened his oral argument by describing, quote, deceit or gross negligence by a financial regulator and financial transaction is cause for removal. And you had the chief kind of immediately spit back. You began by talking about deceit. Does what you said after that apply in the case of an inadvertent mistake contradicted by other documents in the record? So, again, way outside the bounds of the merits of that case. But just saying, don't come in here and tell me that Lisa Cook is some horrific malefactor who has to be removed. We've all made mistakes on our documents, and it did raise a question, or I at least think Linda's piece raises the question that maybe part of what is changing for the Chief justice is how seriously he's taking. Just to go to your point of taking them at face value, how seriously he's taking the administration's arguments now I

[Donald Verrilli]

thought that paragraph in the tariff case that Linda wrote about and that you just mentioned jumped out at me, too. Just jumped right off the page that he was basically saying, oh, yeah, you used your powers to declare a national emergency based on fentanyl and trade deficits, and then you use tariffs for all these crazy, chaotic reasons that don't seem to have anything to do with the reasons that you called an emergency in the first place. That, to me, was a way of saying it's obvious that this isn't on the level, but not making that sort of the legal basis for the decision. So I did think that was really important. I hesitate to go so far as to say that the Solicitor General, John Sauer, has lost the Chief justice, having sat in that chair for five years. You know, you get second guessed all the time when you're in that chair, and I'm a little bit loathe to do that. I do think, and, you know, maybe I'm being unfair to him, but I do think that his boss is putting him in a difficult position because I doubt if it were up to his own judgment that he would have started off his argument in the Lisa Cook case, you know, the Fed official who Trump tried to fire with that sentence. It doesn't seem like it was prudent to do it. And you never want the Chief justice jumping you like that. I also think the first page of the government's brief and the tariff case, like, man, when I first read that, I couldn't believe it. It reads like it was written by President Trump himself, and it might well have been, in fact, written by President Trump himself. And, you know, I don't know, man, I would have been tempted to jump off the roof of the Justice Department rather than file a. A brief with my name on it that had that as its first page. But I don't think that's him. I think he's, you know, I think he's under a lot of pressure and he's trying to deal with what's probably an exceedingly difficult situation over there. But I do think it poses some risk for the ability of the SG's office to be as persuasive as it can be. Every SG understands that you've got this reservoir of credibility and you're supposed to protect it. So when you think about the kinds of arguments you're going to make and the kind of language you're going to use when you make them, you're thinking about preserving the office's credibility. And I just think President Trump makes that Exceedingly difficult for them. I don't know this to be true. I've never had a conversation with anybody there about this. But I feel like that's really what's going on, that they're under all this pressure. They're trying to find a way to satisfy Trump, who's going to be intervening in the process, in the way presidents don't, while still preserving as much of their institutional integrity as they can. And I think that's a pretty.

[Dahlia Lithwick]

Can you talk for a minute, dawn, about who you answered to as sg? Because I think one of the things that's very tricky is it's a really thickety role. It's hard to explain, I think, to a layperson first and foremost, that you're not the President's lawyer. It's not your job to inhabit the legal world he inhabits, but it is a really tricky role in terms of trying to protect executive prerogatives. Right. Can you just try to Venn diagram for the difference between what people think the SG does and what you were actually doing in that office? Because I think you've done a good job of explaining how doubly tricky it is for John Sauer. But even for you, this is not an easy path.

[Donald Verrilli]

Yeah. No. And it's hard to actually explain it effectively, but sort of the hornbook idea of what a Solicitor General should be is that the person occupying that office should be exercising independent judgment to take positions that are in the long term interests of the United States state's government, long term interests of the government and independent judgment. But of course, you're also a high level official in the executive branch and the President is your boss, the Attorney General is your boss. And so you're always trying to strike a balance between carrying out those responsibilities, the historic responsibilities of the office, and protecting the policy agenda of the President for whom you're serving. And there's no algorithm that one SG leaves on the desk for the next SG to apply to figure out what the right answer is on that. But there are just some times where, you know, you can't do what the White House wants to do because it would damage the credibility of the administration and the Department of Justice in front of the court too much or it'd be too much of a departure from the norms that the office has tried to live by. There are other times where you make the judgment that, no, the president is seeking a legitimate legal policy objective that the president has the authority to seek. And I'm comfortable carrying that out. And like you just manage all that as best you can. I mean, I was really lucky. I think we actually talked about this some 10 years ago. I was really lucky. You know, President Obama was incredibly respectful of the office of sg. And there was not a single time in my five years where the White House overruled me on anything. I didn't have regular meetings with the President or the White House Counsel or anybody else over there. Something was a little bit controversial. I might call them up and give them a heads up of what I was planning. And of course they could theoretically have told me not to do it, but they never did. So I was able to operate with a lot of free space around me to make judgments that I thought were the right ones for the administration and the country. That varies, I think some from presidency to presidency. It just seems evident to me that that kind of respect for the institutional autonomy of the Department of Justice and the SG's office is completely gone right now.

[Dahlia Lithwick]

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[Donald Verrilli]

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[Dahlia Lithwick]

Talk to your healthcare professional today. Call 1-833-OZEMPIC or visit ozempic.com to view the medication guide and to learn more About Ozempic. Semaglutide injection 0.5 milligram, 1 milligram and 2 milligrams. More. Now with former Solicitor General of the United States, Don Verelli. I wanna ask you one more big brain question and then I'll just ask easier questions about the tariffs case. But one of the things I really wanted to think through with you is a riff on something that actually came up last week, immediately when the decision came down. And Mark Stern and I were responding to it in the moment. I've heard you talk about this as well. The court is, by design insulated from the world. Right? It's covered in bubble wrap, lifetime tenure. Don't care what you think, don't care what you're doing out there on the plaza. Brains in a vat. And this made me actually crazy during the insurrection case two terms ago. Because if you listen to the oral arguments, which we did, you might never know that the insurrectionists were planning to, I don't know, hang Mike Pence across the street from where the court sits. Just didn't come up. We were talking about deep state actors at the doj, as though that was more real than what literally physically happened across the street. And last week there was this interesting turn where we kind of saw that dynamic flip completely on its head. So here are the justices in the majority who seem completely unbothered that Donald Trump has been leveling threats against them, real, genuine threats against them, for months. And they just did, I don't know, a series of dueling law review articles on the major questions doctrine. It was like they couldn't have cared less about what was happening in the world. These are tangible threats to their families, their safety. And it raises the question of if this is worth a second look. Yes, the court is clueless and out of touch about what happens in the world, but sometimes that judicial independence and lifetime tenure is a good thing. And this is part of this larger question I have of the John Roberts glow up that we got this week where everybody's in love with him again, great serious leader. But he didn't just mouth platitudes about judicial independence last week. Right. The court did stand up for it, even day late, dollar short. And is this maybe a case of credit where it's due? I should take more seriously the notion that they're insulated from the world.

[Donald Verrilli]

I think I agree with you. I worry that he may gravely disappoint you within months on some other matter on this very thing.

[Dahlia Lithwick]

Let's call it weeks, Don.

[Donald Verrilli]

Yeah, okay. Weeks. Let's call it weeks. Okay, fair enough. But I do think, you know, some people have looked at the tariff case, for example, said, ah, they're just voting their pocketbooks. You know, they are worried about the stock market, et cetera. I don't think that's the case. I just don't think that's the way the Chief justice or anybody else is thinking about it. I do think that they act in good faith. I disagree a lot with the exercise of judgment that that good faith produces, but I do think they're acting in good faith. And I think this was a case in which I think they understood that if they were going to uphold the President's use of the statutory authority to do these tariffs, that they were just blessing a wholesale transfer of a massive amount of power from Congress to the President, and that they just weren't going to do that. Seeing the capricious way in which that power was being abused by the President, they just weren't going to do it. So I think it's both that they were actually cognizant of what was going on in the real world and exercising the independence that life, tenure, et cetera, gives to them. I think both things were going on at the same time in that case. To me, what was heartening about it was actually the first part of it, that they did seem cognizant, and that based on that paragraph we were talking about earlier, in the Chief's opinion, they did seem cognizant about what was happening in the real world. It wasn't just a theoretical sort of law school seminar exercise, at least in the Chief's opinion. I will say I thought Justice Gorsuch's opinion in that case was basically a law school seminar. Exercise, and you got a lot of praise for it. I don't know. In a case like that, where this really is a major, major confrontation between the Court and the President, I think you'd want to not use that as the occasion to have this extended academic debate about specific fine points of legal doctrine. But anyway, be that as it may, he did vote with them. So I do think both things are going on. And that is heartening to me because I think what's important in this case, I think it's going to be important over the next three years. I mean, it seems probable to me that other crazy things are going to happen over the next three years, and they're going to test the Court, and the Court's going to need to think not just about the abstract principles that apply to the presidency in the future, but about the balance of power and the ability of our constitutional structure to endure in the here and now, they're going to have to be thinking about that in concrete terms. And so I kind of felt heartened that they seem to be doing that in this case.

[Dahlia Lithwick]

I did think Richard Primus had a kind of smart observation this week that not only did this take a really, really, really long time to come down, but it slightly felt as though the reason it took a really, really, really long time to come down is that some of the justices were, you know, honing their dunking on each other and their, like, smart alecky responses, and that there was a little bit of that, you know, the quality that used to make us nervous in Justice Scalia, you know, the sort of flapping the dirty laundry and making a point about who the SM person in the room was. I remember Erwin Chemerinsky years ago warning that the judicial tone was coarsening, and it was sort of starting to inflect on how law professors thought and wrote and law students thought and wrote. Is it fair to say that every single day that that opinion was being held back, it does seem as though we knew this from arguments it was going to come down this way every day that it was held back, harms accrued not to the justices. Is it fair to say this should have come out quick and clean in the interest of the people, or is there some merit in the degree of sort of internecine face booping that happened throughout these opinions?

[Donald Verrilli]

I think there's zero merit in that. Okay, for a couple of reasons. One is the one you said this case was considered on an expedited basis in full recognition that every day that the, the case went unresolved, more and more tariff money was coming into the federal treasury, meaning that there was a bigger and bigger problem every day. And that's a serious, practical thing. But there was something even more serious to me, which was that this was a major confrontation between the President and the Supreme Court. And it was an issue of great consequence. This was Trump's most important policy initiative, domestic policy, and really foreign policy, too, in many ways. And the Court was telling him it was unlawful. And it didn't seem like the right occasion to me for a lot of extended discourse with a lot of sort of snipey back and forth about what the major questions doctrine should call for. I mean, if you actually think about it, what Justice Barrett said, what Justice Gorsuch said, what Justice Kagan said in Hurricane Kearns, and what the Chief said, there was kind of a common core to it, which is like, use your common sense, man. There's no possible way that Congress meant to effectuate a wholesale transfer of all of this power to the president to basically decide how the federal government was going to be funded and what our international relations were going to be, all through tariffs. It was like, no way that that's what Congress intended. And all four of the opinions kind of focused on that. And there was actually an opportunity for kind of commonality there. And it seemed unfortunate to me that the Court didn't speak with a more unified voice, given the momentous stakes in the case. Now, having said that, Justice Jackson made himself famous for writing a concurrence in a similar kind of case, the steel seizure case, Youngstown, in which we should be clear.

[Dahlia Lithwick]

Yeah. Not Justice Ketanji Jackson.

[Donald Verrilli]

Justice Robert Jackson. Sorry. Thank you. Right. In the 1950s, in this great confrontation between the Supreme Court and the President over the President's exercise of unilateral power, that was a moment for unanimity, too. But Jackson spoke separately, and it was his separate opinion that sort of had guided the way people think about these important issues now for 70 years. And so I guess the temptation was to try to do something like that in this case. But I think if you're gonna do something like that, you better hit a home run the way Robert Jackson did in the steel seizure case.

[Dahlia Lithwick]

Wait, does that mean this was a home run? For all intents and purposes. Do you feel like the opinion written by the Chief justice was pretty close to that kind of magisterial Jacksonian?

[Donald Verrilli]

I thought it was one of his best opinions.

[Dahlia Lithwick]

I agree.

[Donald Verrilli]

Yeah, I really did think it was one of his best opinions. It was thoughtful. It was careful. But it was also resolute, and that was really important, I thought.

[Dahlia Lithwick]

It does lead me to wonder, and I think for me, this is the most important question that I pull out of the discourse around the tariffs ruling. I mean, yes, we're gonna be litigating whatever the fallout is for years to come. But I think a lot of very smart lawyers have been trying to draw from the opinions, Youngstown citations and, you know, whatever this says about the future of the Major questions doctrine. I think the only important question is exactly what you just said. What's happening in the next weeks and months? You know, what's happening in Calais, the voting rights case? You know, is there a profound shift in how Amy Coney Barrett is going to deal with the Major questions doctrine? And then a really interesting sort of set of sub questions about not just the remainder of the term, but the remainder of the presidency and how we think about Trump and executive power and foreign relations. All of that for me is just a huge question mark. It seems like some things have changed, and you can telegraph from some of those things that may have changed, what might change in the future. But is there any straight line you can draw between something that changed not just in terms of tariffs, but how the Court wants to approach this executive and this theory of executive power going forward that you can project onto other cases?

[Donald Verrilli]

It's really hard. You know, I'd like to, but I think the Chief justice is subject to some real conflicting impulses here. And I think that's probably true about Justice Barrett and Justice Kavanaugh, maybe even Justice Gorsuch, in that they have believed their whole lives, their whole professional lives that there should be a really strong executive. I think for John Roberts and Sam Alito, they kind of came of age about the same time I did in the Reagan years where they saw the way in which Congress asserted itself to put fetters on the presidency in all kinds of ways, and they thought that was terrible. And those ideas, I think solidified in their minds 40 some odd years ago and they've been trying to implement them ever since, and they're trying to implement them now. And in the Slaughter case about the so called unitary executive theory, they're probably going to implement them. And so I think on the one hand you've got that impulse. On the other hand, I think it's impossible for them not to appreciate the risks of unchecked presidential power in the hands of this President. And so how they're going to work all that out, I don't know. I don't think there's a straight line through it. But what I'm heartened by is that they do seem cognizant of the second thing and not just so wedded to those ideas about executive power that they first came to believe during the formative stage of their career. There's sort of enough of a sense of what's going on in the real world. I think that they're bringing some balance to it. And so, I mean, heartened may be too strong a word, you know, but I think it's not nearly as bad as it could be.

[Dahlia Lithwick]

And you're not saying. I just want to be precise. You're in no way saying that you read the tariffs, majority opinions in totality, the majority in the concurrences to mean that this is the court having massive second thoughts about the immunity decision. It is emphatically not that. No, it's something much, much subtler than anybody who thinks this is buyer's remorse or you broke it, you bought it and is absolutely wrong about that. That's not what happened.

[Donald Verrilli]

I don't see any sense of regret about the immunity decision that may come. You know, we have three more years of this, and so that may come, but I don't see it yet. I don't see it yet.

[Dahlia Lithwick]

You mentioned, and I think this was a good and subtle point, that the court knew what was happening outside the building, up to and including which countries got tariffed and why, and also seemingly felt pretty immune from Donald Trump's threats, you know, to impeach them and remove them and whatever. But one of the real world things that seemed not to bother them at all in tariffs was the remedy problem. How are we gonna fix this? Which is, I think, where, you know, Justice Kavanaugh was sort of actually speaking for a lot of Americans who were like, wait, show me the money. Do the court have an obligation to delve into a remedy and how fix this? Or did they do exactly what they needed to do and no more?

[Donald Verrilli]

They have received some criticism for not at least signaling what they think about the remedies. I actually think that's prudent. They had to understand that there's going to be a tsunami of litigation. We have this thing called the Court of International Trade, which nobody's ever heard of, but now everybody's going to know all about because that's the specialized court that's going to have to deal with all these claims for tariff refunds. And that's going to play itself out in ways that I don't think they can really understand. In advance. There really wasn't very much in the briefing about this remedies issue. And so my view of that was that it would have been unwise for them to say anything. You know, I thought the Chief justice put that footnote in his opinion, saying, you know what? This comes later. We'll deal with it later. And I thought that was a wise thing to do. You know, at some point, it's hard to imagine it happening in this presidency, but it feels like the kind of thing, and maybe it'll be three or four years from now where Congress should step in and enact some legislation that kind of cleans everything up and won't make everybody entirely whole, but we'll deal with it. But I don't think that's going to happen in the next three years. And so given that, you got to let the process play out. And I think it was good for them to hold their fire on that.

[Dahlia Lithwick]

So I started this conversation, Don, by saying that there's a huge temptation for the people who live outside of the world of the Supreme Court to just say nothing matters. Robert's court is dead to me. Why are we bothering with any of this? And I think part of why we're having this conversation is that sometimes that is too cynical. And sometimes, as was the case with the Tariffs case, it just is wrong. There isn't another place to go. You don't have an alternate Supreme Court where you can take your appeals if you don't like these ones. And I would love for your theory of the case, of how you think through holding these two thoughts. I feel like this could be the theme song of amicus, but how do you hold these two thoughts in your head at once? We cannot overstate how much people have been harmed by what has happened at the court in the past year, often on the shadow docket in ways that we don't even understand the reasoning. And at the same time that this entire project still matters, that taking cases to the court matters, that finding plaintiffs as they did brilliantly in this case still matters, and being vindicated in this court still matters, is there a way that you think about how this balances out in terms of how to approach the court in a both clear eyed and sober way, but also not a way that is, you know, this is utterly useless. Burn it all down.

[Donald Verrilli]

So rather than talk about that in the abstract, maybe talk about something concrete. When I was a young lawyer, right after I finished clerking, the Supreme Court decided Bowers v. Hardwick, which was a case that rejected the idea that there was any constitutional protection for same sex relationships and rejected it. An opinion that was sort of bitter in tone, frankly, and demeaning in tone. And that was the mid-1980s. It was a devastating blow for a lot of people. And I remember for a very long time after that people saying, well, there's no possible way the Supreme Court is ever going to recognize any kind of dignitary equality for gay and lesbian. It's never going to happen. A lot of people believe that and maybe I was one of them. But then you watch, there was a movement out there in the country and it was a bottom up movement really, and all kinds of organizing and people deciding to bring lawsuits and find plaintiffs and engage in scholarship and do all that kind of work. And it led in the first phase of it to the overruling of Bowers in the Lawrence case, which my friend and then colleague Paul Smith did, and then progressed from there to Obergefell some years later. And so, I mean, the court that decided Lawrence was by no stretch of the imagination a liberal court. It wasn't the Warren court, you know, it was the Rehnquist court and the court that decided Obergefell was by no stretch of the imagination of liberal court either. And yet look what happened, right? It was because people maintain their commitment. It's a form of faith, I think. It's not a naive faith. It's a faith that recognizes that this is going to be a long fight, an uphill fight, we're going to lose things along the way. And maybe borrowing from something you said, what choice do we have? It's either this or give up entirely. And enough good things have happened when people decided not to give up entirely that it means having that kind of hard nosed faith. But faith support. Think back to the people who founded the NAACP in the first part of the 20th century. Man, those people lost so many cases for so many decades. We like to think about thurgood Marshall in 1954, but think about all the decades of struggle and loss that preceded that. And yet they kept faith. It was a hard nosed faith, but they kept faith. And they got the Brown v. Board of Education. And a lot of the people who started that fight in the early part of the 20th century never lived to see the result in Brown. But they fought anyway because they had that kind of commitment. And to me, that's the right way to think about it. It's the right way to think about it now. I mean, a lot of stuff is bleak now and I think a lot of huge damage has been done by the administration. And the court has given a lot of it a green light on the shadow docket. And I find that quite distressing. Nevertheless, I look at the course of our history and I feel like there's reason to keep the faith.

[Dahlia Lithwick]

I love what you're saying. It's been a sort of a substratum of everything we've worked on on the show for the last year, is trying to think through the idea that just because the court says a thing doesn't make it the law. We get to be a part of that, too. And I think the more you sort of sit back, whether you're sort of popping popcorn and gossiping or just writing off the whole project, the more you're taking yourself out of that conversation. Right. And both of those are forms of learned helplessness, you know, cynicism or frivolousness. And I love what you're saying because what you're saying is, and I was sitting in the court when Obergefell came down. I remember that feeling of everybody in the room made that happen. You know, they made that happen by putting, you know, their own skin in the game. We're going to take a short break.

[Donald Verrilli]

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[Dahlia Lithwick]

Let's return now to my conversation with Donald Verrilli. Former U.S. solicitor General David French had an interesting piece in the New York Times this week. I'm sure you read it, declaring that tariffs was the most important case of the century. I'm probably not there. I don't definitely make declamations about the century within a week of things. But he did offer one helpful, I think, fix to this same problem you're describing in terms of the sentiment that, you know, the courts just don't matter anymore. And he wrote this quote during Trump's second term. I've likened the judiciary to the rear guard of a retreating army. A valiant delaying action can give the army a chance to reinforce, reorganize and strike back. But if the army can't strike back, then rear guards merely delay defeat. The judiciary isn't perfect, but it is performing its core constitutional function. It is preserving the foundation of America's constitutional structure. Not even the Supreme Court can save Americans from themselves, end quote. And it again, a lot of those premises I'm not sure I'm all on board with, but I sort of am on board with the idea. And we had the wonderful Kim Lane Shepley on at the beginning of the second Trump term. She just talked about this in terms of sand in the gears. Throw sand in the gears, make things take a long time, get attention is some of the way you are thinking about the courts, which, let's say it again, has no purse, has no sword, has no army, cannot enforce their own decisions. Judges around the country being threatened with impeachment and doxxed and their families threatened. And yet there is a piece of the court that is doing a bang up job of sand in the gears rear guard action right now. It shouldn't be trivialized.

[Donald Verrilli]

Yeah. So I think it's even more than sand in the gears and it's probably still a rear guard action, but maybe even more than that. Think about this in terms of the executive order cases against the law firms which I've been involved in. Okay. So one way of looking at that, cynical, not unfairly cynical, but cynical is that what? Well, Trump won that all these law firms cut deals. Most law firms wouldn't stand up and fight, but some law firms stood up and fought and they got rulings that said that this kind of conduct by president is antithetical to the rule of law. And what if they hadn't? That's, I think, the way to think about it. What if those fights hadn't been fought? What if those judges hadn't issued those rulings? What would the world look like then? You would have an executive that was just on the rampage with no one willing to stand up. And I see that in federal district judges and a lot of court of appeals judges too, over and over and over again, really, in hundreds of cases saying no, no rule of law matters. And I think it's really important, this book that everybody's talking about now, Ernest Frankl, Nazi Germany and the Prerogative State. And the idea being that there were basically Two systems of law. There was the normative law, in which all the regular rules applied and everybody went to court and sued over a breach of contract, et cetera. And then there was the so called prerogative law, in which the Nazi regime could work all of its depredations without anybody in the legal profession or the judiciary having the guts to stand up to them. And, you know, that prerogative law thing is, it could happen here, and we'd been on our way to having it happen if these federal district judges hadn't shown the courage they had shown in all of these hundreds of cases. I think that's really important. Maybe the right way to think about it is as a rear guard action. But I think it's more than just slowing down the stampeding progress of the president and the executive branch, because I think they're articulating a principle that matters. They're articulating the idea that, no, we have a rule of law, we're standing up for the rule of law, we'll even stand up for the rule of law, knowing we're going to be criticized and maybe at some risk for doing it, but we're going to do that. And I think keeping that idea alive and vital and a source of energy is really, really important.

[Dahlia Lithwick]

I have two more questions, and one is the Justice Department question, because I've got, in addition to an Ernest Frankel fetish, I have an A.O. hirschman fetish. And that sort of classic exit loyalty voice problem that has really plagued me since the first Trump administration. These really, I find to be intractable, insoluble questions about what you do inside an organization when you're having to choose between sticking around and doing harm, sticking around and trying to mitigate harm as best you can. You know, quiet quitting and whistleblowing and, you know, saying, I didn't go to law school for this. And we are watching lawyers, particularly Don young lawyers. And I know you teach law students and think about, you know, that generation that's coming up, and we're watching them around the country struggling to decide these questions right now, particularly painfully right in the Justice Department.

[Donald Verrilli]

Oh, man. Yes.

[Dahlia Lithwick]

And I don't even know how to think about, you know, the JAG attorney who's suddenly been conscripted into deportation, unwinnable, you know, masses of deportation cases, or young attorneys saying, like, please sanction me, judge, so I can go home and sleep. I can't live like this anymore. Something is collapsing in on itself. And, you know, you mentioned your work representing the law firms that Fought back. It was, for me, such a clarion lesson. And, you know, your amicus brief, which folks should read, you know, reminded us what it means to say no. As a young lawyer, I would just love your thoughts on how you are talking to attorneys who are living on a different seam than the one you even talking about. But this seam between, do I cooperate, do I leave, do I stay? Do I try to be ethical in this shattered system? Or do I just, like, go, you know, protest in Minnesota? How are you getting them through this moment, particularly at the doj?

[Donald Verrilli]

I think it's a brutal question. Cause there's a human dimension to it as well. You know, you have these young lawyers. They may have just gotten married and have young kids and have a mortgage, and they need an income, and it's not like they're gonna easily find jobs. If half of the people leave the Justice Department, of course, in some divisions of doj, half of the people or more have left. So I think I try to extend some grace to the individuals involved, because I think they're in terrible circumstances. And I think most of them are in the category you described of people who are trying to do their best to preserve their integrity, to mitigate harm when they can, and to decide where their line is and whether it's been crossed. And I just have a lot of sympathy for people in that situation. But I don't think it should be lost on anybody that when you have the branch of the Justice Department that defends the United States and all civil litigation, the federal programs branch, that more than half of the people have left, that there's something that's deeply wrong, that's just deeply wrong. And the saddest part is that it ought to be a sense of pride. Every day I worked in that building and walked in that building, my two jobs there, I felt real pride that I was there. You want people to be feeling that every day. And I just think it's so sad that that's been drained out. It's just been drained out. But for the individuals involved, people feel like they're in a position where they can take a stand. God bless them. I'm glad that they do. I think it's important that they do. But I've got a lot of grace for people who feel like they just can't do that. I'm very sympathetic to that. I don't. I don't think of them as, in the main, exhibiting a degree of complicity that we should condemn. I just think it's too hard a

[Dahlia Lithwick]

situation for that one of my sons is an avid listener to this show. And I forget that for pretty much his entire life, all he's known is the Trump world.

[Donald Verrilli]

Yeah, that's true about my students now, too. Yeah.

[Dahlia Lithwick]

Yeah. And that the only court he's known is not the court I started covering 25 years ago. And I guess I find myself wanting to ask you about clerking for Justice Brennan. You clerked for him in 1984. You just mentioned Bowers versus Hardwick, which was a brutal setback for a long time. But I would love to hear you talk for a moment, if you would, about Justice Brennan, because I think we have a lot of listeners who think that, you know, he's consigned to some place in history 500 years ago, and that's not right. What he did at the court was extraordinary and doable and could be done again. And I'd love to hear just personally, what you learned from him, how you thought about the way he approached the law, and maybe more importantly, how you think about his legacy at a moment when a lot of the things that he fought for couldn't probably get three votes at this court. And yet we press on.

[Donald Verrilli]

I consider it one of the great blessings of my life that I had a chance to clerk for Justice Brennan, and I clerked for him rather late in his career. He was only on the court a few more years after I clerked for him. And of course, if you think about the arc of his career, he was the real architect of the Warren Courts legal revolution. I wasn't alone in that, of course, but he played a huge role in that and authored many of the Warren Court's most important cases and worked behind the scenes to find consensus that allowed the achievement of the rest of them. It was extraordinary. But by the time I was clerking for him, he was not in a position to do anything like that. It was the Burger Court, and it was thought to be a very conservative court. We had sort of no idea what a really conservative court was at that time, but it felt like it was back then. And Justice Brennan was in dissent a lot, but he was not bitter. He was always optimistic. He was always energetic. Even at 79 years old as he was, he kept at it. He realized that there were victories to be had, that they might require him to trim his sails a little bit. It required maybe a lot of interpersonal diplomacy, but he was willing to put it in to find the victories he could find and to mitigate the losses that he suffered so that they weren't as bad as they might have been from his point of view. And he was just an optimistic person even in those difficult circumstances. That's a lesson that I took from that was really important. And the other thing that I took from it that was really important was he had a vision of the Constitution. His vision was that the essence of our Constitution, thinking both in terms of its structural components and its protection of individual rights, was to preserve and value and elevate human dignity. And when we think about how the Constitution should be interpreted, it should be through that lens. And that really animated everything he did. You know, people said, oh, well, that's, you know, just making policy as a judge. I didn't think that at all. There were things that he thought you couldn't do under the Constitution because the authority wasn't there. But he understood that there were things that courts could do that would preserve human dignity and would make a difference in the lives of the citizens and in the health of the democracy. And he was very committed to that. And he organized everything intellectually around those ideas. And I found it inspiring then. I find it inspiring now.

[Dahlia Lithwick]

Donald B. Virilli Jr. Former solicitor general of the United States, serving from 2011 to 2016 and now a partner with Munger Tolles and the founder of its Washington, D.C. office. Cases that he argued at the Supreme Court as SG included the Obamacare case, which he won, and Obergefell, which he won. And he's currently also a lecturer at Columbia Law School. Donna, I'm not sure this is the conversation I thought we were gonna have today, but it is so emphatically the conversation I needed to have today. And I'm so grateful for you and the optimism and also the sort of hard nosed, bracing truth of what you bring not just to your work in the law, but to the ways I need to think about the law every day. Thank you for your time.

[Donald Verrilli]

Oh, thank you. This is wonderful. Really appreciate it. Dahlia.

[Dahlia Lithwick]

Right before we close out this particular episode of Amicus, I have a special extra for everybody. Mark Joseph Stern has swung by on his way to the Amicus plus smokeless cigar bar, and he's brought somebody with him. It's a special guest. Mark is, of course, my Amicus co host and Slate senior writer. Mark. I'm so excited. Hi.

[Mark Joseph Stern]

Hi, Dahlia.

[Dahlia Lithwick]

And with you is our colleague and sorceress and amazing Slate staff writer, Sharon Ali, who's making her Amicus debut this week, joining the Amicus universe of superheroes, if you will. Hi, Shirin.

[Sharon Ali]

Hi. Super excited to be here.

[Dahlia Lithwick]

And we Are all of us here to talk about a couple of big things. First, the extraordinary actions of one very, very special Florida jurist, Judge Eileen Cannon. And secondly, very related to firstly, our new jurisprudence newsletter, Executive Dysfunction, which has just launched. So maybe we start with Judge Cannon and why she is back in the news this week. It's a transparency question. It's also a Supreme Court audition. It all gets an extra slick gloss of lawlessness because, you know, Eileen, come on, Eileen. Mark, can you, before we bring Sharon in with all the research she did this week, can you give us the bare bones of what happened this week?

[Mark Joseph Stern]

So Judge Cannon issued a new ruling that permanently prohibits the Department of Justice from ever releasing or sharing volume two of Special Counsel Jack Smith's report on his prosecution of Donald Trump. Volume two would cover all of the classified documents case. That's the prosecution that Judge Cannon slow walked and then thwarted through a series of completely indefensible decisions. And she has now gagged a co equal branch of government, the executive branch, from releasing it seemingly forever, even from sharing it with Congress. And of course, she said, oh, well, this shouldn't be controversial because the Justice Department agrees that it shouldn't ever release this report. But the Justice Department is controlled by Donald Trump. So of course it agrees that this, I think, as we all can guess, like damning indictments of Donald Trump in the rhetorical sense and all of his lawless behavior around the theft and cover up of classified documents, of course, that should never see the light of day and nobody should ever learn about it in any great detail.

[Dahlia Lithwick]

And Sharon was tasked with, as we launch Executive Dysfunction, our new newsletter, tragically, with having to go down the rabbit hole on this, like, deeply shocking story. And what you found is that even though everyone thinks this is super, super bad and unprecedented, it's kind of worse.

[Sharon Ali]

Yeah, absolutely. So in this week's edition of Executive Dysfunction, I get into Judge Cannon's latest order and how by banning the Justice Department from releasing Jack Smith's final report, she's pretty transparently using her power to pander to President Trump. So I'll kind of expl explain why if you take a closer look at her argument within this order, she's repeating the point that she believes that, you know, Smith was wrongfully appointed as special counsel. It's the same reasoning she used to dismiss the classified documents case two years ago now, and it's an argument that no other court has backed. But nevertheless, she makes it. And she also suggests that Smith was sort of manipulating the spirit of her previous order by even putting a report together at all, which is a pretty crazy thing to say considering that, you know, making a final report on an investigation is something that is afforded to special counsels via federal regulation that Republican and Democratic administrations have honored. And so the icing on top of all of this is the fact that technically, Cannon doesn't have jurisdiction to even rule on this question on the release of the final report. And that's because the Knight First Amendment Institute of Columbia University, they've been challenging her rulings on this case since last year. And just recently, recently it was taken up by the 11th Circuit Court of Appeals, which means that the question of the report has essentially changed hands. And it's plain and simple, not in front of Cannon's court anymore. And so what all of this really suggests is that Cannon put out this order knowing that the president despises Jack Smith. We've seen the horrid truth social posts he's made about him in the past, and he doesn't want this classified documents final report to ever see the light of day. And so, as you both discussed on amicus last week, Cannon's order conveniently came out shortly after rumors began swirling that Supreme Court Justice Samuel Lito might be retiring soon. By releasing this order, it kind of seems like Cannon has made a not so subtle play for that seat.

[Mark Joseph Stern]

And Sharon, it's especially, I think, brazen because Judge Cannon has all this reasoning where she's like, we have to protect Trump's reputation, like, we have to shield his good standing and presumption of innocence by gagging the Justice Department from releasing this report that might, like, make him look bad. And I mean, to my eyes, that is not even really a legal argument. Like, the presumption of innocence is a real thing. It applies at trial when prosecutors are trying to prove someone guilty beyond a reasonable doubt. It is not this sort of freestanding, free floating thing that a defendant can just assert as a reason to prevent prosecutors from revealing their findings. And in fact, as you said, like every past special counsel has issued a report, the report has been issued to the public, sometimes with redactions, but we get to see it. And that is just how the system works. Like, prosecutors get to reveal bad things about criminal defendants that they discovered in the course of an investigation, even if they didn't secure a conviction against that defendant at the end of the day, for whatever reason. So this just seems like special treatment for one for Trump, that nobody gets to read bad stuff about him because he just deserves better. And I cannot read that as anything Other than please pick me for the Supreme Court, I will do all of your bidding for all time.

[Sharon Ali]

Yeah, absolutely. And to your point, you know, we've had former special counsels that have released reports that didn't result in a guilty conviction. I mean, you can look back to the Robert Mueller final report, which was released by a Trump Justice Department by former Attorney General Bill Barr. So on all fronts, Cannon's order is just completely unprecedented and inappropriate. Honestly.

[Dahlia Lithwick]

Sharon, connect up what you just said and what you've been reporting to the ideas, animating, why we're doing the new newsletter and what kind of things that you're looking for when you pick stories and what kind of rabbit holes you're gonna try to go down for us.

[Sharon Ali]

Yeah, absolutely. So when we set out to create executive dysfunction, we wanted to help people cut through the noise by highlighting one piece of news that really believe they need to know about. Especially right now, we have such a chaotic and overwhelming news cycle. It can feel daunting to figure out what to read and what to pay attention to. So Executive Dysfunction, we're going to be very intentionally doing that grunt work for readers so that, you know, one legal story that we think is particularly important that represents how the Trump administration is manipulating our laws and or how the law is fighting back. Because we recognize that ever since the president began his second term, it has just been a absolute deluge of lawlessness and it's incredibly overwhelming. And Executive dysfunction is there to kind of help guide readers through that chaos.

[Mark Joseph Stern]

And how do folks sign up?

[Sharon Ali]

So you can go to slate.com dysfunction or you can also find us on substack through slate.substack.com we are going to

[Dahlia Lithwick]

put all of that on the show Notes, but we really want to encourage y' all who are fans and who are listeners and who have so many good questions to get involved and talk to us and talk to Shirin about what it is that you want to see. We're coming to the end of this main episode. Mark, you and I are going to hang out for the bonus episode. Can you talk for a minute about what we are cooking up for the good people on plus this week?

[Mark Joseph Stern]

Oh, we've got so much. We've got more federal judges slamming the Trump administration for violating court orders, Judge Brian Murphy shooting down the outrageous third country deportation policy and basically just jumping up and down, waving his arms, telling the Supreme Court all of the ways that the Trump administration lied to him and violated his earlier orders. We'll see if the justices care. We're going to talk about the U.S. conference of Catholic Bishops telling the Supreme Court that the Trump administration's ban on birthright citizenship is a hideous, immoral monstrosity that violates the most fundamental principles of Catholic teaching that one can imagine. And I think we're also gonna touch on four justices humiliation theater, attending the State of the Union just to be insulted to their faces.

[Dahlia Lithwick]

Thank you, Mark. Thank you, Shirin. Our bonus episode is exclusive to our Slate plus members. Sign up [e-mail] amicusplus to listen. Thank you for supporting our work. Your as you know, keeps the lights on around here, but it also really does mean we get to do cool new stuff like our brand new newsletter, Executive Dysfunction. Thank you, Mark. See you in a minute. Thank you, Shirin. Congratulations. It's an amazing project.

[Sharon Ali]

Thank you so much.

[Dahlia Lithwick]

And that is all for this episode. Thank you so much for listening. Thank you so much for your letters and your questions and your comments. Please keep keep them coming. We are reachable by [e-mail] and you can find [e-mail] Amicus Podcast. You can also leave a comment if you're listening on Spotify or YouTube, or rate us and review us on Apple Podcasts. Sarah Burningham is Amicus's senior producer. Our producer is Sophie Summergrad, Hillary Fry is Slate's editor in chief, Susan Matthews, executive editor. Mia Lobo Bell is executive producer of Slate Podcasts and Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week. Until then, take good care.

[Donald Verrilli]

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