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- [00:00]
Harry Littman
Hey, it's Ryan Reynolds here for Mint Mobile. Now. I was looking for fun ways to tell you that Mint's offer of unlimited Premium Wireless for $15 a month is back. So I thought it would be fun
- [00:10]
Amy Howe
if we made $15 bills, but it
- [00:13]
Harry Littman
turns out that's very illegal. So there goes my big idea for the commercial. Give it a try@mintmobile.com Switch upfront payment
- [00:22]
Dalia Lithwick
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- [01:07]
Harry Littman
Welcome to Talking Feds, a roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Littman. It's our annual Supreme Court episode, a deep dive on the term that ended last week and and produced a juggernaut of victories for the administration and conservative legal positions. The term ended with a flurry of decisions that massively enhanced Trump's power while narrowly checking him on some of his most radical priorities. The lopsided ledger gave the lie to predictable media assessments of the term, which painted the cases as a mixed bag for Trump. But the Slaughter opinion consummated a 10 year plus program that effectively rewrote the structure of American government. Another pair of rulings gave Trump unprecedented power over the workings of the immigration system. Kahla completed a judicial overruling of the landmark Voting Rights act of 1965. And the court continued to march along in its embrace of right wing culture. Causes in all, the decisions have pushed experts and critics toward consideration of a range of drastic proposals meant to tame a court that seems high on its own impunity to try to come to grips with a term that delivered sweeping conservative victories, in particular on presidential power, while rebuffing Trump on a few of his farthest fetched obsessions. I'm thrilled to welcome three of the most trenchant experts on the high court and they are Amy Howe, Amy's co founder of SCOTUS blog, where she serves up essential analysis of the Supreme Court all year long, but presides over a live chat that everyone tunes into for the delivery of big opinions. Amy's also served as counsel in over two dozen merit cases. The court argued two cases in front of the justices. Great to have you with us, Amy.
- [03:30]
Amy Howe
Thanks for having me back.
- [03:32]
Harry Littman
Daya Lithwick, a senior editor at Slate, where she's written about courts and the law for more than two decades. She also hosts the superb legal podcast Amicus. Thanks so much for joining, Dalia.
- [03:46]
Dalia Lithwick
Great to be back.
- [03:47]
Harry Littman
And Steve Vladek, the big man of the high court. Steve is a professor at Georgetown Law School. He's also the Supreme Court analyst for cnn. He too, has argued several cases before the justices, and not least, he's the author of the indispensable substack about the Court. One first. Welcome back to Talking Fed, Steve.
- [04:09]
Steve Vladek
Thanks. I'm just tall. I just want the record to say that it's about height.
- [04:14]
Harry Littman
And welcome, Steve Vladek, the tall man of the high court. There you go. All right. Hey, so let's dive in. We are taping on Wednesday, barely 24 hours after a seismic end to a blockbuster term. The headlines are all pointing to Trump versus Barbara, the birthright citizenship case, as the defining decision of the term. The last one announced, Steve, and possibly Amy and Dia, you see it differently. You wrote that Slaughter is the most important separation of powers ruling of the 21st century and by far the most important decision of the current term. Explain.
- [04:55]
Amy Howe
Sure.
- [04:55]
Steve Vladek
So, I mean, I think it's there are a couple of different things going on here. The first is that, you know, although the birthright citizenship decision is really important in what it could have been. Right. I think Slaughter is important in what it is. And what it is is basically a blank check with one exception that rather destroys the entire analytical underface of the theory for the president to do whatever he wants to the rest of the executive branch. And, you know, this was a theory that was enough to get 1 vote in 1988 on the Supreme Court. It was widely pilloried for decades as an extremist reading of the original understanding of the Constitution. Folks like me argued that the reason why this would never work is because you could have a president who would use it to turn the executive branch into his personal vengeance arm. That's no longer a hypothetical. And the court did it anyway, Harry. And so I think Slaughter's importance is a combination of how much it disables Congress from responding to this president and to future presidents in like ways, how much it sort of signs off on a lot of what Trump has been doing, directly or indirectly, and how little the justices seem to be bothered by the fact that at the exact same moment they handed down Slaughter, they handed down a ruling that proves to me, right, the intellectual bankruptcy of the unitary executive theory, which is, oh, but the Federal Reserve is too important to let the president control directly.
- [06:18]
Harry Littman
Let's go right there. So to my own dissent suggests there is no principal distinction to justify the contradictory treatment of the Fed and the FTC and the Slaughter and Cook cases, saying in one case the President cannot be fettered in her his ability to fire the head of an agency. But in the Fed, no, no, no. Is there any way to square these two other than just a extralegal bout to pragmatics of the Fed?
- [06:47]
Steve Vladek
I mean, I'll just say Justice Kavanaugh admitted in his concurrence in Cook that it's the latter. Right. He said, you know, it's too important, like the impact on the economy would be too great. Now, in fairness, the Chief justice does try to suggest that there is some historical defense of thinking of the Fed as a unique institution because of its historical relationship to the first and second national banks. But we've had a year, Harry, to think about that argument because he first previewed that in Wilcox last May. And the people who actually know what they're talking about, like Professor Christine Chexel Chabot has pointed out how that's nuts, right? It's not just that there was 90 years between the Second National bank and the Fed, but they're totally different structurally.
- [07:30]
Harry Littman
Well, look, you say in fairness, but maybe you're being overly fair. I mean, in fairness, is that just a bunch of hokum when you get to the legal doctrinal underpinnings? And I mean, is there a distinction that cuts it all if you're in the business of doing legal analysis? Amy Daly, any thoughts?
- [07:51]
Amy Howe
I mean, I thought the most telling thing, one of the most telling things was that in his decision in Slaughter, the Chief justice does address the Fed, you know, pretty briefly. But he does address it in, in his decision in Cook. He doesn't address Slaughter at all. And he doesn't really even try to square the two. He just offers up this historical analysis and says, qed, the Fed is special. So you have Justice Barrett in her dissenting opinion, even though she joins Slaughter, saying there's some serious tension here and it was sort of striking that he didn't. Justice Barrett is not one who is this sort of radical dissenter that he didn't try to address that part of her dissent at all.
- [08:34]
Dalia Lithwick
Which is so great because what's so funny is the same guy wrote the two, right? Like it would be different at the same time. You know, it's like, huh, I wonder what the Chief justice is going to make of this when he gets his eyes on this. And the weirdness, like the strange split screen quality of like a pretty perfunctory attempt to square the circle by the same author. And I do think, I mean, I kind of put this in the bucket of tariffs in a weird way because I think in some sense, right, these are huge consequential losses for Donald Trump that kind of go to the question of like, I really like my 401k super care about the economy. And I know that's crass, but it does feel as though if you don't even make a really good faith attempt other than the weird quasi historical, this institution is just different, trust me. Then you do come away saying that where the rubber meets the road on the MAGA project is in fact my pocketbook. And I don't want to be quite that cynical, but I'm not cynical.
- [09:43]
Harry Littman
There's a follow up point here. Well, first, it's true, you do sort of see him as like maybe moving from one side of the table, the other and changing his tie or whatever. Now I'll write Slaughter, now I'll write Cook. But, but Steve mentioned another point and it's a theme that you've sounded as well, Dalia, which is this very point, the demolition of the administrative state has been a hobby horse of the right for some 40 years. So as a young lawyer in the Reagan administration, Roberts wrote the time is right to reconsider the constitutional anomaly of independent agencies took aim specifically at Humphrey's executor. So other than the pocketbook theory, it is true that it's been a kind of beef of the conservative legal crowd for a long time. What is this beef that they have with it and how does it fit into a broader conservative agenda?
- [10:38]
Dalia Lithwick
I mean, this is the deregulatory dream, right? Like this is the, you know, get rid of agencies, get rid of expertise, get rid of, you know, career folks who are committed across administrations to certain things like that we call science, things that we call like facts. And I think the basic idea is this has been an ongoing effort across decades and decades. And I also think, and maybe this links into the question you asked Steve about why this case is so consequential things like Chevron deference don't get clicks, like the public doesn't register this. And even when you say this is going to affect the epa, this is going to affect the cdc, this is going to affect merit, I think there's so many entities that intersect with people's lives that they either can't quite concretize or don't fully understand why you might not want this to sort of swing like the garden gate with one administration to another. And I think that in one sense, the reason that Slaughter and Cook kind of get de emphasized is it's part of this long sort of, as you're saying, Harry, arc of deregulation and de emphasis of science and expertise that doesn't feel as exciting as birthright citizenship, but is in every particular, like, right down to, you know, what is pollution absolutely part of an agenda that will change our lives, like change our lives forever. And once we see it, it's going to be like, oh, right, remember Cook and Slaughter? That was a really big deal that I forgot to get exercised about.
- [12:31]
Steve Vladek
And just to take one more beat on where this came from, I mean, I share Dalia's cynicism and sort of pragmatism about where this came from. The argument that is made in defense of all of this is centered on the idea of democratic accountability. Right? Is the notion that instead of a faceless bureaucrat assistant administrator at the EPA setting pollution limits for power plants, it should be someone who's immediately democratically accountable. There are two different problems with this argument. The first is actually Congress is a heck of a lot more democratically accountable than a second term president is, and yet here we are. But the second is, as Dalia pointed out with regard to the demise of Chevron, this is not actually about empowering voters. It's about empowering the courts. It's about empowering judges, who are the least democratically accountable actors in this story, to decide for themselves which agencies are different, like Cook and the Fed, to decide for themselves which regulations we're going to let this particular agency have and not have. And so it's a transfer of power to the judiciary through the executive under the guise of empowering voters, when it really isn't.
- [13:41]
Amy Howe
Can we just go. I just want to go back to make like a very sort of in the weeds point about the pocketbook issue. And this was a point that one of my colleagues in the press room, Kelsey Reichman of Courthouse News, made, which is that, you know, when the chief justice announced his decisions in Trump and Slaughter he did it the way, you know, the court always does. First he announced Slaughter and then he announced Cook. And remember that there are no live streams of the opinion announcements, unlike the oral arguments. But down in the press office where the reporters are, we got the two copies banded together and they went up on the court's website at the same time. So a somewhat cynical view of the decision to distribute them. So if you were sitting in the courtroom, you knew that the Rebecca Slaughter lost, that Trump had all of this power to fire independent agency heads. You didn't know what was going to happen to Lisa Cook, but everybody knew in the outside world immediately. There's a cynical view that the court didn't want the markets to be uncertain for even perhaps like the 20 minutes or so between the Trump versus Slaughter decision and the Trump versus Cook decision.
- [14:54]
Harry Littman
And they would have been. And it also promoted that sort of on the one hand, on the other hand, reporting that made it seem as if they're kind of splitting the baby or balance when if you take a look not just at the opinions themselves and the poor, if not bankrupt rationale to the Fed case and again, against the sort of horizontal trajectory where we are now, as Steve put it, is a consummate the president can really have unfettered ability to fire, which is a huge thing.
- [15:27]
Dalia Lithwick
Can I just make one little record scratch addendum to Amy's addendum? Because Steve Vladik and I have been railing for, what is it, Steve, three, four years now about covering the cases in the manner that the court wants us to cover the cases. And I just want to say, again, this is just a tiny infomercial for the proposition that the entire last two weeks of June are so exquisitely stage managed by the court to say, like pay no attention to the shadow docket, pay no attention to whatever madness is happening at, for instance, just to Amy's point, opinion announcements when Justice Alito is getting mad at Justice Sotomayor, but we have no record of that because it's a secret. I don't know. And I just want to yet again make the point. I know I say this all the time, but it is a category error to look at the merits cases alone and the merits cases that are handed down with full knowledge. Again, this is not too cynical. This is the truth of how it is going to land. It is not an accident that Barbara gets handed down when it gets handed down and as it gets handed down in much the same way, just to Amy's point, that Slaughter and Cook get handed down the way they do. And I just want to like ask folks to just like widen the aperture to say that to ignore the shadow docket, to ignore all the mayhem, is to walk into the laboratory and look at the science experiment as though that is the data and the science experiment is bought and paid for and managed by an entity that is then presenting it as neutral. And so I just want to re up, sorry, Steve, but like this is my kill that I will die. And I just want to re up that like the attention being paid to exactly half of the court's work product is at our peril.
- [17:33]
Harry Littman
And look, Di, it's an inside point, but you got a lot of nods. And it's true, it's a self aware institution, especially the press office that is supposedly presenting neutrally, but they're exclusively aware of what's coming down, including the last opinion announced of the year, the birthright citizenship case. The case struck most of us, I'll say, certainly me, as totally simple and elementary. It's straightforward. If you're born here and you're subject to the jurisdiction of the like, you can get a driver's license, be sued, all those things, you are a citizen, period, full stop. So I think the headline is that for justices, four justices questioned, denounced or denied what seems like a rock solid promise of birthright citizenship. How the hell did it happen in that way? And where does the result that as Steve said, people are leading with the bottom line because what a catastrophe on the, you know, order of the handful of most infamous decisions of the court's history, like Dred Scott, it would have been had they gone the other way. How does the four votes and the kind of leaving open the door for more ferment here politically? Where does that fit in with the overall narrative of the term? Because it is certainly playing in these end of year discussions as, oh, here's the big thing, and it went against Trump.
- [19:07]
Amy Howe
I mean, I think it shows that even on the Trump losses they were closer than we expected. You know, certainly I was surprised not just that it was 5, 4 generally, but I was even surprised after the oral argument. I mean, I came out of the oral argument thinking 8, 1, maybe 7 2. I certainly did not think it was going to be 5, 4 on the constitutional question and in the tariffs case that it was 6 to 3. These are both the tariffs case, this was something that the majority said in its decision. No president had tried to do this before. This was Trump swinging for the fences on these two issues that were both issues that are not popular. The tariffs are Highly unpopular birthright citizenship. There's polls showing that a majority anywhere from 55 to 70% of Americans support the concept of birthright citizenship. So these are really sort of Trump's pet projects. And you know, there are between three and four justices on the Supreme Court who are ready to go to go there with him.
- [20:12]
Harry Littman
I mean, he was swinging for the fences and you expected a strikeout. It's kind of an extra base hit, right?
- [20:18]
Steve Vladek
Yeah, he hit a double. So I co sign every single thing Amy said. I think it's an interesting question why, like every single court watcher read that oral argument incorrectly. Just like Cook. I think we all walked out of the Cook argument not thinking it was going to be five to four. And you know, at least on the tariffs side of that conversation, the answer is Brett Kavanaugh. Obviously, Justice Barrett has been hard to read at oral arguments the entire time she's been on the court. Kavanaugh usually has not been and Gorsuch usually has not been. He wasn't in the tariffs case. He was here. But I want to sort of just add to Amy's point. I am really struck not just by the votes, but by the incredibly gratuitous nature of Justice Kavanaugh's separate opinion. Because it is completely normal for a Justice to write a concurrence in the judgment when they want to decide the case on narrower grounds. Right. We see that every time. For a really prominent example, the Chief Justice's opinion in Dobbs. Right, where he said, I would uphold the Mississippi law without overruling Roe. And those don't usually have this massive signaling function. Kavanaugh writes a concurrence in the judgment and then completely unnecessarily tacks on this. Oh, but on the constitutional question, which isn't presented on my own reading of this case, I would hold that Congress has the power to do this. That is Brett Kavanaugh living in the right wing media ecosystem. That is Brett Kavanaugh playing to the crowd. And I think there might be an element of Brett Kavanaugh advertising for John Roberts job which is striking, which is a problem unto itself, but also which reinforces this was a fringe argument. Jim Ho pilloried this argument in a green bag article in the late aughts. Trump put it on the wall and the court could have actually repudiated him. But the difference between Trump losing and Trump being repudiated is the vote count. And instead of an 8 to 1 or 9 nothing ruling, where the headlines would have been Supreme Court decisively slaps Trump down. Now the headlines are actually. It was a lot closer than the
- [22:33]
Harry Littman
experts thought, and it might still be in play. An invitation to Trump to work Congress, which he immediately accepted.
- [22:41]
Dalia Lithwick
I would just add two glosses to what Amy and Steve said. One is to me, yes, I think the takeaway is how many votes for absolutely anything that Donald Trump wants. And this was a swing for the fences. This had almost no meaningful defense. And yet domicile, right. Like, all this stuff pops up in the. In the literature that is supported by, you know, fringe analysis. So I think there is, you know, one piece of this that is arresting, is that it used to take 10 years and then seven years and then three years for an idea to go from off the wall to on the wall, right. You needed the entire, like, amicus industrial complex, and you needed, you know, a bunch of larvae articles. You needed to build steam for an utterly preposterous idea to become a thing. You took to the Supreme Court. John Sauer, like, stood up and just said the words. And all of us watching were like, well, but there's no there there. And that apparently doesn't matter. And I think both the rocket fuel, like, the speed at which that happens and the intensity at which that happens, is really a sea change that we haven't metabolized yet, because it is an invitation not just to tweak the statute, which is the Kavanaugh position, it's an invitation to bring it back, because who knows whose mind can be changed? The other just tiny gloss, but I think it isn't inconsequential. Donald Trump showed up at that argument. Right. It never happened before. Kind of ambled off when he got tired, and there was this whole sort of sub conversation about what that signaling was. Right. And how much at the time I thought, these justices don't want to be stared down or stared up. The utter weirdness of stared up by a glowering president. And what is that achieving? And I mistakenly thought that part of the reason this was gonna be 8 to 1 or 7 to 2 is for an imperial court to say, yes, we've constructed an imperial executive, but you work for us, and that plainly didn't matter. And in fact, I think some of the currying favor with the president that we saw, again, four votes isn't just maybe jockeying for the president to love you more. I think it's also a real lesson in how symbiotic this president and this court are, in a way that I actually thought the court was pretty jealous of its prerogatives. And I think I was wrong.
- [25:30]
Harry Littman
I just want to add one little, I don't know, gripe or pet peeve, which is Steve's I think description of Kavanaugh is exactly right. But I would just add, as happens so often with him and had this little empty bromide of respect for the other side or a seeming kind of collegial stance that really plays no real role in anything he's saying or writing, but does seem designed to be. Maybe there's another way of looking at it, maybe in a laudable way, but designed to be for a greater audience. Anywhere from we are collegial to I'm not such a bad guy, Harry.
- [26:16]
Steve Vladek
There's a quote in Ruth Marcus book about Kavanaugh's confirmation in the Supreme Court in 2018 that I will never forget. And Ruth got one of Justice Kavanaugh's then colleagues on the D.C. circuit to say something along the lines of the thing you have to understand about Brett Kavanaugh is that he's a wonderful colleague except when it matters. First of all, if anyone ever said that about me, I would yeet myself into the sun. But I think that's what we saw in a lot of cases this term. And just the last piece of this, and then I'll shut up. I'm struck that Trump took this work with Congress reaction to the decision versus how he reacted to the tariffs ruling, where Congress was of course, off the table, where he attacked Kavanaugh's and Barrett's families. And that's enabled. That's possible only because there were four votes. If there had been two votes or one vote or no votes, we would have gotten a Trump tantrum and that would have just further underscored how weak he was. It is so important that we not let the court off the hook for how it is enabling Trump in even when he's losing. And that's, you know, we saw that a whole bunch of times this term.
- [27:30]
Harry Littman
And Stephen Miller's comments after the dream will not die. I mean, we're not done with this. Hey everyone, Harry here. As the weather heats up, I wanted to give another shout out to Quint's Clothing. Their organic cotton crew neck, their Traveler 5 pocket pants, and their Pima cotton T shirts have been great parts of my wardrobe, and they're breathable enough to feel fantastic on mild or warm summer days. They look good, fit well, and are inexpensive to boot. And I'm looking forward to checking out their new European linen pants and shirts for even more summer comfort. Elevate your summer wardrobe go to quince.com talkingfeds for free shipping on your order and 365 day returns. Now available in Canada, too. That's quince.com talkingfeds for free shipping and 365 day returns. Quince.com/talking feds. Big term, many cases and a risk of myopia seeing them through the prisms of the explosions. At the end of the term, I want to move to the overall sort of shape and themes of the term, but I don't want to give short shrift to, you know, other really important cases. So I wonder if we can just go around the horn, each of you, in like, you know, rapid fire away 15 seconds or whatever, name a case that really should be put in the annals of the big ticket items of the term. Can we do that by alphabetical order? Dum dum, dum, dum. Amy Howe, Sure.
- [29:23]
Amy Howe
I mean, I will go with NRSC versus fec, the campaign finance case. I mean, I think this is one of these ones where Trump had a couple of losses, but this was a huge win for the Republican Party in the upcoming elections. And beyond striking down the federal limits on coordinated party expenditures between a political party and candidate Daya, I think I'm
- [29:50]
Dalia Lithwick
gonna say Calais probably. I think that to fail to put that in the pantheon of sea change cases and to really see it on its own terms, which is not just blessing this vision of the colorblind Constitution and blessing racial gerrymandering, but the gam of it so that it comes out when it comes out in time to affect elections, in time to launch this very cynical race to the bottom. To me, the immigration cases and the democracy breaking cases, I think are the Steve's nodding because he's going to take the immigration cases. But I do think we didn't plan this. I do think that the democracy breaking cases, and Amy's right, because I put campaign finance in that bucket, too, but I think the democracy breaking cases are a kind of gloves off naked. This is whose team we're on. And we are going to do what we have to do to make sure that voting is not what voting should be. And to me, in some sense, that should continue to be the headline every single day since Kelly came down.
- [30:59]
Harry Littman
Okay, so we're a little like old married couples who finish each other's jokes. Steve was nodding to the prediction. What's your offering here?
- [31:08]
Steve Vladek
Well, I just want to add a friendly footnote to Dolly's point, which is not just the substantive significance of those decisions, but the moves in Calais itself in Allen vs. Milligan, in Malliotakis and in Lulac, speaking of the emergency docket, to basically step into the middle of all of this redistricting while it was happening in direct contravention of the so called Purcell Principle, which has federal courts are not supposed to step in. So it's both the substantive problems and the procedural zeal that I think are so problematic. Dalia's right. I was gonna say the immigration cases, and I think the pair of cases that we've got on the second to last Thursday of the term, Mullen versus Doe and Mullen versus Al Ocerlado, are massively important cases. I might even argue more legally important than the birthright citizenship case, although I'll get in trouble for that. Mullen vs. Doe greenlights the President Trump doing whatever the heck he wants to TPS for whatever reasons he wants, including overtly racist reasons. Justice Alito couldn't even bring himself to quote what President Trump said while whitewashing it and saying it wasn't obviously racially motivated. Justice Kagan says yes, but putting aside the equal protection piece of it, the fact that this Supreme Court would pick this moment in American history to say, here's a universe of decisions by the president when it comes to immigration law that federal courts can't review. Right. Means immediately, you know, dire circumstances for 350,000 Haitian migrants. It means the same for upwards of 1.6 million migrants from 16 or 17 other countries. Like, these are not folks who are the worst of the worst. These are folks who are fleeing awful circumstances as determined by the U.S. department of State. And the court's like, whatever, we'll let Trump do it. Ditto the asylum case. Alo Torlado, you know, folks who want to apply for asylum, if they follow the rules and present themselves at a border, they're shit out of luck. Good luck crossing the border surreptitiously, and then maybe you can apply for asylum. Justice Sotomayor was not kidding in her dissent when she says more people will die. These rulings, I think, are also getting buried because they're technical, because they came so closely before these other rulings. I would just add them to the mix of what Amy and Dalia said.
- [33:26]
Amy Howe
Just a footnote to what Steve said about the TPS cases. Last year on the emergency docket, the court allowed the Trump administration to start deporting people from Venezuela with TPS status. And so there was this really sort of sad irony that the same week that the Trump administration got the go ahead to end TPS ifr, Haiti and Syria said courts can't review that, that we had these two massive earthquakes in Venezuela. Really just sort of decimating the country and its infrastructure.
- [34:00]
Harry Littman
All right. All really good, really essential. And we could have three more rounds of this to. You know, there's a lot more. Even the ones we talked about here were all backloaded. It's the way it worked out. Okay, so let's try to broaden the focus to the entire term. Maybe even situated in the context of the nearly 21 years of the Roberts court. I think there's little doubt in this last half hour reconfirms. It's a sort of juggernaut for the administration for conservative legal positions. A very interesting question of how those two constituencies kind of come apart and blend. But let's start with the counterpoints. And, you know, in these, on the one hand, on the other hand, predictable coverage. The mentions of the defeats for the administration always come up. Tariffs, birthright citizenship, mail ballots, and the Fed. Do you see any sort of through line there? Of the sort that the primary dominant trend that we've all identified actually may be compromised or set to the side in an individual case?
- [35:12]
Amy Howe
I mean, one through line I certainly see in all of these cases is John Roberts. I looking at all of the cases, and in all of these decisions, I don't see any decision off the top of my head in which he was not in the majority and writing in many of them. And there have been terms recently where that was not the case.
- [35:33]
Steve Vladek
So just to add data to prove Amy's point, so there were 24 decisions in argued cases that the court split six, three or five, four. So I think we can call that the. The close cases. Right. Without giving short shrift to the seven twos, Roberts was in the majority in 22 of the 24, and nobody else was in the majority in more than 19. And the Democratic appointees, none were in the majority more than eight times. So that's one point, Harry. I'll just say while I'm on my data kick, another point about those 24 cases. The three Democratic appointees were on the same side in 23 of those 24. And so what that tells you is that the court is not splitting into strange bedfellows in any of the close cases. The only exception is the Rooker Feldman case, which is hilariously nerdy and not worth our time. Right.
- [36:26]
Harry Littman
Inherently idiosyncratic.
- [36:28]
Amy Howe
It was a great argument you had Elizabeth Prelogger and Lisa Black.
- [36:31]
Steve Vladek
Yeah, no, it's a case the lawyers love and nobody else cares about. But that's the point, which is that the only counterexample is a case nobody cares about. And so I get into this fight all the time with my dear, dear friends on right wing social media about how the court's not splitting six to three in all these cases. So first of all, even the conventional Republican Democratic six, three split, there were 13 of those this term after there were six last term. I'm pretty sure that's more than twice as many. But second, what you're seeing is the Dems with some combination of the middle of the court, of Roberts and Gorsuch and Barrett and Kavanaugh coming together sometimes, but actually, like, that's it. And in every other case the Dems are losing. This is a court defined by its ideological divide. And efforts to argue otherwise are just
- [37:22]
Dalia Lithwick
selling something that is in like, the deepest, like, existential way, the difference between a 6, 3 court and a 5, 4 court. Right? I mean, because there is no Kennedy. It doesn't matter who peels off. And so I think there is a kind of locked in vibe that, you know, thank God we're not seeing the like three, three, three, thumb sucking, you know, like, oh, you know, it's not that court. It is a six, three court. And you know, maybe the other thing that's just worth adding is this John Roberts has regained control of his court. Like, we're all old enough to remember the John Roberts has lost the court terms. But I think it's also really interesting that this is like John Roberts from 1980s, right? Like, this is voting and chamber of Commerce. Like, I think in a deep way, like, he has his issues and they're not all of Donald Trump's issues.
- [38:17]
Harry Littman
I mean, Daya, you yourself have made these really good points about some of the results we're in were like glints in the eye of John Roberts and a nascent movement back in the 80s. And it really is remarkable, not just what happened in the term, but how several of the big important cases are kind of culmination of, you've put it, the industrial complex of some law reviews and amicus briefs and Federalist Society presentations and wow, the law of the land.
- [38:50]
Amy Howe
One more quick point, which is, again, this is just to go back to the point that Dalia made earlier, is that we have just been talking about the Marist docket and not about the shadow docket. I think Steve and I were sitting on a set together in, I don't know, it was December when we got the call that the court had Issued an order in. It wasn't Trump versus Illinois, it was another emergency application, but it was the first time it broke the winning streak of 20 plus emergency applications for the Trump administration in a row.
- [39:23]
Steve Vladek
I think it was the deferral in Cook.
- [39:25]
Amy Howe
Ah, okay, there you go, There you go.
- [39:27]
Steve Vladek
Yep. Right. And it's not just the Trump. I mean the Trump cases. Trump had another good term on the emergency docket, although it wasn't as good as last term, cuz it couldn't have been as good as last term. But away from Trump cases, I mean we talked about all the election stuff, the Mirabelli case out of California of really important ruling on the emergency docket, going to sort of the shadow docket more broadly. There were nine summary reversals by the Supreme Court this term. These are sort of when the court at the petition stage decides the whole appeal. Three years ago there were none. Right. And of those nine summary reversals, I think three or four of them had the three Democratic appointees all dissenting. So again, sometimes people like Dolly and me say, well, the narrative changes when you bring in the full aperture of the court's work. I actually think this year completely reinforces it and actually makes it deeper and makes the defenses of the court like, oh well, look at tariffs and look at birthright citizenship much shallower.
- [40:26]
Harry Littman
Yeah. These like ERISA cases where, oh look, we were. Udanovsky, Thomas joined with Sotomayor.
- [40:32]
Amy Howe
Yes. And they love to point to this, don't they?
- [40:35]
Dalia Lithwick
Wait, and one other just. Sorry, one more, just one more coda. To the coda. To the coda. But I think it's important where you see this is in the dissents. Right. Where you actually have these full throated Calvin Ball, the dissents that are saying you are not weighing the equities. You do not seem to care who is harmed. I think it is interesting to see dissents that are operating on two tiers and they're almost the two tiers that to Steve and Amy are clocking, which is on the merits, like you're wrong and I wouldn't do it this way. But then this sort of cred that is threaded through so many of the dissents this year that just say again and again and again, this is not what we're here for. This is not how we do business. This is not what this court does. You are not following the procedures. You are undermining the legitimacy of this institution. I mean, I just think in the aggregate and I haven't made a study and maybe Amy and Steve have, but I Think the number of dissents that are really saying the thing, which is this is a 6, 3 chord and you guys aren't doing your jobs has been really striking this term.
- [41:45]
Harry Littman
So many dissents that are essentially unanswerable. But here I think, Dalia, Your point about 6, 3 versus 5, 4 chord is so trenchant where it seems like you're really making a point and it couldn't come back again to where you're basically screaming into the abyss. Right. And that's how it kind of plays.
- [42:04]
Amy Howe
I think it also affects then the cases that they take up because they have much more confidence. You know, there was the whole, well, what does Justice Anthony Kennedy think? And we're not going to take that case. You know, they didn't take up partisan gerrymandering until he left.
- [42:17]
Harry Littman
Yeah. And I mean, the lower courts have reacted also with doing cases that essentially question the current state of the law that you would think they're bound to apply, but they know that there's a friendly voice at the end of the road. Let's shift gears to the so called culture war issues. They were there a few times before the court. Gun rights, trans issues. Steve's written a lot about Landor, but it felt to me, or the question is on that spectrum or that area, was it just basically marking time for, well, they did the really big work in other areas or did they plow new ground here on the what we call sort of the culture war issues?
- [43:02]
Steve Vladek
I guess I'll dive on this grenade. I think you could probably describe the BPJ transgender case and the two gun cases as iterations down a path the Court had already started. And that is only going to get worse. From my perspective. The Court has already added one case each for the Second Amendment and transgender rights for next term that I think are meant to build on those. Landor to me, is in a different category because the majority opinion by Justice Gorsuch in the Landor case, which holds that private plaintiffs can't seek damages under Spending Clause statutes against individual government officers unless those individual officers specifically consented to being sued for damages, is such a radical change in how we understand Congress's powers in general that we don't usually differentiate between different Article 1 powers with regard to what the statutes can do, but also with regard to the Spending Clause in particular, which is the source of so many really important statutes from, you know, Medicare and Medicaid to Social Security benefits. I mean, there's so many important federal statutes that Landor will make it harder to enforce, at least retroactively now, the court has gone out of its way to preserve prospective lawsuits. Chief Justice Roberts even has a footnote in Cook where he actually says some nerdy but important stuff about lawsuits for injunctions are different. But Landor is a category changing case to me in ways that, as problematic as they are, Wolford and BPJ are, I think, incrementally bad and not just sort of staking out a whole new problematic interpretation of the constellation.
- [44:45]
Harry Littman
This was a case where Congress actually said you can have a private right of action, but it turns out only if a guy who acted abominably had actually signed on. I don't know when and how that happens.
- [44:57]
Steve Vladek
Well, and just really quickly, in a case in which the plaintiff gave the corrections officer a copy of the 5th Circuit decision that says, I have a right to keep my dreadlocks that I've
- [45:09]
Harry Littman
grown for 20 years.
- [45:10]
Steve Vladek
Okay, sorry, Amy.
- [45:11]
Amy Howe
And this was a case in which the Trump administration supported the plaintiff. Right. Saying, you know, the spending clause, you
- [45:18]
Steve Vladek
know, this is no, too extreme for the Trump administration.
- [45:21]
Dalia Lithwick
Can I maybe fight the hypo on one. On one tiny point, which is I think to not class all the immigration cases we've been talking about as fundamentally culture war cases is probably a mistake because I think it tells you about the degree to which who is American? How do we close our borders? How do we ratify Kavanaugh stops? I mean, I think there have been so many cases about these foundational questions of who gets to be an American. And I would suggest, I think that in fact is a dominant MAGA culture war question. I don't think you can unbraid them as readily as that. And that in some weird sense, like religious liberty and guns and LGBTQ rights actually are almost like second order culture war issues. Because who is an American is the sort of flaming dumpster fire that Donald Trump has staked so much of his presidency upon.
- [46:27]
Harry Littman
Just an excellent point and another that could be a whole episode. But let me segue a little to a point that Steve made about Landor and how it will continue to resonate, perhaps in just the overall curbing of congressional power. So much of the Court's conservative agenda seems reactionary, less revolutionary than counter revolutionary. Back to the good old days. I just wonder, what areas of the law do you think, Steve, you've written a little bit about this. The super majority might next take aim at what will we be talking about in a year or two?
- [47:08]
Steve Vladek
So my big concern heading into the upcoming term for things that I think aren't on people's radars yet is money is spending not from the perspective of Congress's power, but from the perspective of the president's arrogation thereof. And so there are tons of cases working their way through the courts to the Supreme Court challenging the Trump administration's refusal to spend money it was required to spend, and a handful of cases challenging its spending of money it wasn't allowed to spend. And the Supreme Court has sort of blessed a couple of these things in emergency docket orders that did not reach the merits of any of those cases. It's a matter of time before that's going to get back to the court. And Congress's great power is the power of the purse. That Republicans aren't especially interested in exercising it right now is a short term problem. The ability of the president in the long term to ignore exercises of that power is a much bigger longer term problem. And things like the four votes in the birthright citizenship case make me nervous about what I would have thought not that long ago was a no brainer even for the conservative legal establishment, that the appropriations power is Congress's and Congress's alone.
- [48:19]
Dalia Lithwick
I can jump in and just say what I'm deeply, deeply nervous about, mail in ballots notwithstanding, is the way the court is gonna involve itself in the midterms. And I think part of the reason Steve and I both were banging on about Calais is that the court has shown itself. There's the story we like to tell about the court absolutely refusing to get involved in the presidential election in the past with equally cockamamie notions that were being put before them and the court wasn't interested. I am really, really looking at a court that I think, you know, is a vote or two votes or on the margins away from doing some like as Steve said, the Purcell Principle seems to mean either nothing or the opposite of the Purcell principle. And I just worry that we are not prepared for the court involving itself in the midterms.
- [49:23]
Harry Littman
Yeah, once upon a time, we thought of Bush v. Gore as breathtaking and sui generis, as they said, and not so much. All right, it is now time for a spirited debate brought to you by our sponsor, Total Wine. And more than each episode, you'll be hearing an expert talk about the pros and cons of a particular issue in the world of wine, spirit and beverages.
- [49:55]
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- [51:20]
Harry Littman
Thanks to our friends at Total Wine and more for today's a spirited debate. All right, just a few minutes left. Let's turn to possible solutions and where to go from there. Steve, you've written about how some of the decisions may be actually subject to some congressional override. And then of course, we're going to hear, especially if there's a retirement, a whole new round of pushing for some reform proposals to include court packing. Just wanted to get all of your thoughts about is there anything to be done, small, medium or large, to try to staunch this juggernaut?
- [52:08]
Amy Howe
Well, certainly. I mean, with some of the immigration cases, you know, the cases like Mullen vs Doe involving TPS, where all the court said was that courts can't weigh in on the DHS Secretary's decision to designate or terminate temporary protected status. That's the sort of thing that Congress could easily change. You know, certainly with the current version of Congress, I'm reminded of the time that Don Verrilli at the lectern in the Supreme Court said, this Congress, but with a Democratic Congress, that's certainly the sort of thing that they could tackle.
- [52:46]
Steve Vladek
I'll go one step deeper and just say, then there are the cases like Slaughter, which Congress can't really react to directly. And so I think this is a much longer conversation, and I don't want to give it short shrift. It starts by developing some consensus as to what's wrong with the Court. And I think a very common view, especially among Democrats, is that what's wrong with the Court is its personnel. And I hold the perhaps idiosyncratic view that the personnel are enabled by what's really wrong with the Court, which is just how completely unaccountable it has become and thinks it ought to be. This is a court that just doesn't look over its shoulder before it decides anything. And that's new. That was not the court we had for almost all of American history. And so to me, the reform conversation, Harry, should start with fixing the individual statutory messes the Court has created. But I actually think it's a deeper conversation about re establishing the inner branch dynamic where, as Paul Freund once put it, the justices are immune to the weather of the day, but they're sensitive to the climate of the age. And I don't think that includes expanding the Court or term limits, popular though those may be, because those aren't accountability reforms. Those are personnel reforms. I want to talk about Congress reclaiming some control over the Court's docket. I want to talk about Congress reclaiming control over the Court's budget. I want to talk about Congress reclaiming control over the ethics and financial disclosure rules by having an inspector general. I mean, these are the kinds of things that I think we ought to be talking about. And I think there's so much push for expansion right now that we're solving the symptom. We're not curing the disease.
- [54:22]
Dalia Lithwick
I love that we're in increasing order of strip it down to the studs, but I'll be the strip it down to the studs guy and just say, I really think, and I am with Steve and Amy on I think Congress can no longer lie around on its back waiting for its tummy to be tickled. I think Congress needs to put some skin in the game. I also am with Steve on ethics reform and all of the, you know, there's a million things that can be done tomorrow that are not constitutional questions that can be done to force the Court to be accountable in ways that it does not believe itself to be. And that's the behavior we're seeing is a court that has made itself unaccountable and is not only fine with that, but unbothered by the public response. So I'm for all of it. I'm for jurisdiction stripping and adding seats and term limits, and I will be probably for the rest of my days. But the last piece of it, I think Steve was nodding at this, but I think an American public that sits around and waiting for justices to die is not a plan. And I think to have the conversation about I'm really, really mad at the court for two days after Calais or for two days after Dobbs, and then we go back to scratch and we don't do anything. I think that we have to have a really deep collective understanding that the American public also has skin in this game, that the Court is not untouchable. And that's not said to scare the court, but it is said to embolden and give agency to the American public.
- [55:53]
Harry Littman
Great conversation, everybody fitting in condign for a very much a blockbuster term. Thanks so much for being on Talking Feds and I don't know if we can all hold our breath till the next thunderbolt comes down. Thank you so much Amy, Dalia and Steve. And thank you very much listeners for tuning in to Talking Fits. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate and review the show. Check us out on substack@harrylitman.substack.com where I'll be posting two or three bulletins a week breaking down the various threats to constitutional norms and the rule of law. Paid Substack subscribers can now get Talking Feds episodes completely ad free. You can also subscribe to us on YouTube, where we are posting full episodes and my daily takes on top legal stories. Talking Feds has joined forces with the Contrarian. I'm a founding contributor to this bold new media venture committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape, where legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Find out more at Contrera. Thanks for tuning in, and don't worry, as long as you need answers, the Feds will keep talking. Talking Feds is produced by Lou Cregan and Katie Upshaw, associate producer Becca Haveian, sound Engineering by Matt McArdle, Rosie Dawn Griffin, David Lieberman, Hansum Hadrenathan, Emma Maynard and Hallie Necker are our contributing writers and production assistants by Akshaj Turbailu. Our music, as ever, is by the amazing Philip Glass. Talking Feds is a production of Doledo llc. I'm Harry Littman. Talk to you later.