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

Slate Podcasts | February 28, 2026

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.

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.

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]

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.

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.

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.

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