Dahlia Lithwick on Defending Our Constitution

Summary

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The Al Franken Podcast: Dahlia Lithwick on Defending Our Constitution

Date: February 8, 2026
Host: Al Franken
Guest: Dahlia Lithwick (Senior legal correspondent at Slate, host of 'Amicus' podcast)

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Overview

In this episode, Al Franken welcomes legal journalist and commentator Dahlia Lithwick to discuss the state of constitutional rights and democracy under the Trump administration. Covering pressing issues such as immigration policy, Supreme Court developments, abuses of executive power, and grassroots resistance efforts—especially in Minnesota—the discussion is both sobering and passionate. Lithwick provides expert legal context, while Franken offers insightful, incredulous, and sometimes darkly comic commentary. The focus is on how the current administration is testing the limits of constitutional norms—and how citizens are mobilizing in response.

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Key Discussion Points & Insights

1. Opening: Trump’s Recent Maneuvers (01:29–05:51)

• Franken opens with a satirical update on Trump’s latest antics, including:
  • Closing the Trump Kennedy Center for renovations, including plans for a “250-foot triumphal arch.”
  • Sending Tulsi Gabbard and the FBI to seize ballots in Fulton County, Georgia.
  • Suing the Treasury and IRS for $10 billion over leaked tax returns.
  • Attempting to leverage infrastructure funding in exchange for having Penn Station and Dulles Airport renamed after himself.
  • Sharing a racist video about the Obamas on social media, prompting outrage.
• Notable Quote:
  • Al Franken: “Do you trust him with our $10 billion? I don't know.” (04:19)

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2. Child Detention, Family Trauma, and Community Resistance in Minnesota (06:10–11:07)

• Focus on the case of Liam Ramos, a 5-year-old asylum-seeker from Ecuador, detained with his father in Dilley, Texas—a converted Walmart “prison.”
  • ICE using children as bait to find parents, even those following proper asylum procedures.
  • The community response in Minnesota: people delivering food, supporting families too scared to leave home.
  • Ongoing trauma among children and families—heightened fears of going outside, missed doctor appointments.
• Discussion of attorney burnout: an immigration lawyer in Minnesota telling a judge, “Just find me in contempt. I can't do this work anymore.”
• Notable Quote:
  • Dahlia Lithwick: “You have to do it. And one other thing just worth flagging on this, Al, is a big legal story this week was the lawyer who essentially told a judge in Minnesota…she just can't.” (09:35)

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3. Supreme Court’s Role in Enabling Harm (11:07–16:44)

• Lithwick’s argument that SCOTUS, by granting Trump near-blanket immunity and severely narrowing paths for holding federal officers accountable, makes government abuses more likely.
  • The evolution of immunity doctrines post-George Floyd: courts shield federal agents who violate civil rights due to “uncertainty” about the law.
  • Current administration officials declaring (and sometimes walking back) “absolute immunity” for border and ICE agents.
• The legal and practical dangers of Trump’s attempts to interfere in election administration, illustrated by the Fulton County episode.
  • Mark Elias, election litigator, warns that these actions are a “proof of concept” to further erode electoral integrity and federalize elections under the pretense of national security.
• Notable Quotes:
  • Dahlia Lithwick: “The Supreme Court has just been out like a juggernaut in terms of making it almost impossible for folks to be held accountable.” (12:12)
  • Dahlia Lithwick (paraphrasing Mark Elias): “He’s kind of putting down markers...this is proof of concept that he can go into election polling places and say, oh, I’m sending...because I am just claiming...that I have the power...” (15:31)

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4. Barriers to Justice & Community Self-Defense (21:24–24:33)

• Ongoing obstacles to justice for victims of government violence (e.g., Alex Preddy’s killing by federal agents in Minnesota).
  • Federal interference, contaminated crime scenes, lack of cooperation with state investigators.
• The debate between judicial (neutral) versus administrative (self-approved agency) warrants:
  • Administrative warrants (now used by ICE/federal officers) are signed by the agency itself, bypassing judicial oversight.
  • Widespread refusal in Minnesota to recognize administrative warrants as legitimate.
• Notable Quote:
  • Dahlia Lithwick: “One is signed by a judge and one is signed by your own agency. So there’s no check.” (23:13)

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5. Grassroots Defense of Democracy: Lessons from Minnesota (24:33–28:31)

• Minnesotans’ creative and collective responses inspire Lithwick, shifting her own advice from legal reform to community action.
  • Thousands stepping up to help their neighbors, donate, and protect vulnerable families.
  • Structural fixes (court reform, voting rights) are crucial but hard for people to connect with—now, lived experience is shifting attitudes toward democracy.
• The difficulty of rebuilding democratic norms versus the ease with which “cruel” policies can inflict harm.
  • The exodus of ICE and border patrol agents from Minnesota as an example of resistance having impact.
• Notable Quote:
  • Dahlia Lithwick: “Building democracy is really freaking hard…they can blow stuff up probably faster than we can build it up. But I do think people freaking hate this.” (27:41)

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6. Institutional Constraints, Body Cams, and Misinformation (28:31–30:26)

• New regulations: body cameras for DHS agents and other reforms.
  • Benefits are limited—officers control the recording and, at times, use altered video to mislead.
  • The critical role of “citizen journalism” and bystander-recorded video as a check on official accounts.
• Notable Quote:
  • Dahlia Lithwick: “This really is a moment where...citizen journalism and civic duty says that the only thing better than body cams for everybody is 100 people with whistles who are filming this.” (29:30)

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7. The Supreme Court as Trump’s Shield—and Its Limits (30:26–36:15)

• SCOTUS continues to heavily “thumb the scale” for Trump, but signs of resistance (e.g., reluctance to allow the removal of Federal Reserve governors on flimsy grounds).
  • The Court is quick to support Trump’s policies affecting rights and elections, but when it comes to the Fed—or economic matters that impact themselves—they draw the line.
  • The tariffs case looms as another test—Court seems skeptical of Trump’s overreach.
  • Ongoing Supreme Court tolerance of practices like “Kavanaugh stops”—racial profiling and warrantless stops targeting immigrants.
• Upcoming: SCOTUS to take up birthright citizenship (14th Amendment), a “bonkers Hail Mary”—Lithwick does not expect them to overturn constitutional precedent but expresses caution.
• Notable Quotes:
  • Dahlia Lithwick: “There’s almost no other way to look at this other than this hits them in the wallet. Depressing.” (34:25)
  • Dahlia Lithwick: “Any sane, plausible reading of the text and history of birthright citizenship holds that the words mean exactly what they say…” (34:48)

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8. Supreme Court Transparency, NDAs, and Institutional Secrecy (40:47–43:41)

• SCOTUS’s increased efforts at secrecy post-Dobbs leak: all clerks now sign binding NDAs.
  • Lithwick argues that lack of transparency—from recusals to financial conflicts to decision-making—undermines public trust.
  • Targeting clerks is symbolic, missing the root accountability problem with the justices themselves.
• Notable Quote:
  • Dahlia Lithwick: “The clerks are not the problem. The problem is the justices.” (43:41)

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9. The Road Ahead: Defending Elections with “Our Bodies” (44:00–47:27)

• Lithwick’s final message: the energy Minnesotans use to stand up for their neighbors now needs to be harnessed to protect elections.
  • Trump allies threaten to put ICE at polling places, demand voter data as a pretext for intimidation.
  • Democracy is “really fragile”—requires not only legal but bodily, collective action.
  • Encourage proactive voting: early voting, mail-in ballots, community poll monitoring, bringing others to the polls.
• Notable Quote:
  • Dahlia Lithwick: “We are starting to learn with our bodies what democracy looks like and it’s really scary. And people are heroes for putting their bodies on the streets. We are going to have to learn with our bodies what voting looks like and what protecting the vote looks like.” (46:13)

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Memorable Moments & Quotes (with Timestamps)

• On Trump’s request for infrastructure naming rights:

  • Franken: “Trump Station and Trump International Airport…Schumer told Trump that he doesn’t have the power to do that.” (03:43)

• On the weaponization of law and administrative power:

  • Lithwick: “The Supreme Court has just been out like a juggernaut in terms of making it almost impossible for folks to be held accountable.” (12:12)

• On the resilience of Minnesota’s communities:

  • Lithwick: “People are bringing…are doing amazing things for people who can’t leave their homes or won’t leave their homes…” (24:33)

• On the shift from legal fixes to community organizing:

  • Lithwick: “We need to fix it…has just, like, on a dime turned into like, oh, democracy is the thing that’s going to save us…and it's going to require not necessarily structural Senate reform, but like people's bodies on the streets.” (26:45)

• On the dangers facing the next election:

  • Lithwick: “Elections don’t run themselves. They’re incredibly fragile…all of this amazing civic energy…has to be directed with equal force to protecting elections.” (44:00)

• On the Supreme Court’s self-interest:

  • Lithwick: “There’s almost no other way to look at this other than this hits them in the wallet. Depressing.” (34:25)

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Conclusion

With incisive legal analysis and a sense of urgency, Dahlia Lithwick and Al Franken illuminate just how precarious constitutional democracy has become under Trump’s renewed presidency—and how citizens, particularly in Minnesota, are finding new ways to resist and defend their communities. The main takeaway: while courts and politicians may falter, the real hope lies in civic solidarity, vigilance, and direct action, especially as the next election looms.

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[End of Summary]

Transcript

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[Al Franken]

Hey everybody, we've got a great one today, you know, for a change, because the great Donnie Lithwick is back with us. It's been a while and we have some catching up to do. But first, just an observation about what a weird run of odd shit that Trump has been into lately. The Kennedy Center, I mean, the Donald J. Trump and the John F. Kennedy center for the Performing Arts, which almost no one has been going to, partly because so many of the artists have been canceling. So Trump announced that he will soon be closing down the Trump Kennedy center for two years to renovate the place. This follows a 2019 $250 million expansion, but now that it's the Trump Kennedy Center, I'm sure it will get a fantastic makeover. And there's a 250 foot high triumphal arch that Trump wants to build that's nearly 100ft taller than the ARC Triumph in Paris. And he sent Tulsi Gabbard and the FBI to Fulton county to seize the 2020 ballots and find the 11,780 votes that Brad Raffensperger wouldn't find for him. And he's talking about nationalizing the midterm elections. And there's Trump's $10 billion lawsuit against the Treasury Department and the IRS for the leak of his tax returns during the first term. Trump claims the leak caused reputational and financial harm, public embarrassment, and tarnished his business reputation. He does say he will give his $10 billion to charity. But do you trust him with our $10 billion? I don't know. And yesterday, it came out that Trump told Chuck Schumer that he would drop his freeze on $16 billion in funding for a railroad tunnel between New York and New Jersey if Schumer would see to it that Penn Station in New York and Dulles International Airport in Washington were named for him. Named after him. Trump Station and Trump International Airport. Now, according to two people familiar with the conversation, Schumer told Trump that he doesn't have the power to do that. To rename Penn Station and Dulles after Trump. And then on Friday, we woke up to a video that Trump shared on Untruth Social depicting Barack and Michelle Obama as apes. South Carolina Senator Tim Scott, the only Republican black senator, said it was the most racist thing I've seen out of this White House. I'd really like to ask Tim Scott what the second most racist thing he's seen out of this White House. Meanwhile, Americans are living with the trauma from what we are all witnessing in Minnesota. I'm recording this on Friday, so before Trump's super bowl interview airs. But he's already taped it. And evidently, he decided not to attack Renee Good and Alex Preddy again. JD Vance, however, was asked by the Daily Mail if he would apologize to Alex Preddy's family.

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Have you apologized? Did you plan to apologize to the.

[Al Franken]

Family of Alex Peretti? For what? For, you know, labeling him in his sash and with ill intent.

[Ad Voice]

Well, again, I just described to you what I said about Alex Preddy, which is that he's a guy. The ill intent to an ICE protest. No, but if it is a guy, it's determined that his civil rights were violated by this FBI investigation.

[Al Franken]

Will you apologize? So if.

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[Al Franken]

Wow. It is so ugly. And now to Dahlia Lithwick. It's a. It's a great one, you know, for a change.

[Ad Voice]

Hey, D. Hiya.

[Al Franken]

Glad to have you back on. It's been a while. Been reading a lot of your stuff, listening to the podcast Amicus, I'd like to start with what's going on in Minnesota. You did a recent episode about a five year old boy, Liam Ramos, who was picked up by ICE at school and then brought to his home. And to bait, I guess they're trying to bait his mom, but they got, they later got his dad and they sent him and his dad, this five year old boy, to Texas to an immigrant detention facility in the middle of nowhere. Was this Dilly, Texas? Is that Dilly?

[Dahlia Lithwick]

Yep, Dilly.

[Al Franken]

They as a family had come from Ecuador in 2024 and applied for asylum when they got in the country. And so they routinely arrest people who are in the asylum process. Right.

[Dahlia Lithwick]

And people who not only have done everything according to the protocols that they were supposed to be following, but then they grab them when they show up for a court appearance. You know what I mean? So they're not just doing it right, but then they grab them when they're continuing to try to do it right.

[Al Franken]

Right. So there was a lot of public outrage about Liam and his dad, and they finally returned to Minnesota, like after being there 10 or 12 days. But there are still a lot of kids in that facility. And on your podcast, you interviewed Kristen Clarence, who is a longtime immigration lawyer who works a lot with kids. And she had actually worked at this same facility in Texas. And you had her on the show during, in Trump's first term.

[Dahlia Lithwick]

I did. Doing the same thing. She was part of a bunch of folks who were at that point doing family separations.

[Al Franken]

Yeah, well, that's when they separated kids from the family, which people didn't like.

[Dahlia Lithwick]

Right.

[Al Franken]

Americans didn't like that. So Trump learned from his first term, and now in the second, they're, they're not separating the families, but they're doubling down on the cruelty and trauma that they inflict without the public witnessing it so much. What have been the ripple effects on these communities, on these families?

[Dahlia Lithwick]

I mean, Kristen was, you know, broke my heart when she talked about, you know, and we're just hearing reporting all over. I mean, you are in Minnesota, so you've seen it too. But you know, kids who are afraid to leave the home. Right. Kids who can't go to doctor's appointments, families that are having to have food delivered.

[Al Franken]

Oh, yeah, that's what a lot of my friends are doing, folks in Minnesota. It's amazing how people in Minnesota stepped up and you've written about that.

[Dahlia Lithwick]

They've been amazing. I mean, I think that the thing that Kristen really like painted a picture of to me was what that facility in Dilley, Texas, looked like it's like a prison, basically, how those kids were being held, what the conditions were. She talked a little about something that became a story in the week after I talked to her, Al, which is that they're using converted like Walmarts and, you know, like using facilities, empty, you know, huge shopping centers.

[Al Franken]

And they're expanding these because their goals are what, a million a year? How many a year?

[Dahlia Lithwick]

I mean, Stephen Miller, I think, just sets these arbitrary numbers and you just have to do it. And one other thing just worth flagging on this, Al, is a big legal story this week was the lawyer who essentially told a judge in Minnesota, she's like, oh, my God, just find me in contempt. I can't do this work anymore. She's been trying to do all these cases and she just can't. And she accidentally said the quiet part out loud. And they've now removed her from her office. It was really interesting, the back and forth that she had with the judge where the judge was like, is the current policy to just like, seize people and detain them and then think about their constitutional right? Like, you've got the order wrong. Like, you can't just, you know, warehouse people and then ask about rights violations. And I think the Liam Ramos story, and that was the little boy in the blue floppy eared hat that you're describing. I think that was a case where, you know, and, and they've been sent back now from Texas. But I think it was a case that made it really material and really visual for people that they could take this tiny child, use him as bait, take him and his dad, throw him on a plane before any legal proceeding could happen, stick them in detention. They were lucky they got out. They had members of Congress, like, showing up to, to fight for them. But there's lots and lots of. Liam Ramos'.

[Al Franken]

Yeah. One of your recent pieces for Slate, how the Supreme Court made Alex Preddy's killing more likely. What did you mean by that?

[Dahlia Lithwick]

Well, I mean, I think there's, there's a couple of layers of that, but one of them was certainly, you know, the stuff you and I talk about all the time, which is the minute, you know, the Supreme Court gave Donald Trump virtually blanket immunity to do whatever he wants to do. At the simplest level, every single person who says they are following his orders now can count on a pardon right now. Can count on. I mean, this is a president who can. It doesn't matter if an act is unlawful because the president can, as he did with the January 6th, insurrectionists, pardon them all. But I think in that piece, we were also really talking very specifically about a long. And this was just a guest on my show, Alex Reinert, who was talking about the long, long history of immunity for federal officers and that the Supreme Court has been chipping away, chipping away and chipping away at doctrines that once would allow you to bring an officer into a court and question the legality, the constitutionality of his actions. And the Supreme Court has just been out like a juggernaut in terms of making it almost impossible for folks to be held accountable.

[Al Franken]

I remember during George Floyd, that was a big deal, right?

[Dahlia Lithwick]

I mean, there is a long standing effort to say, and I think you're right, it reached a real peak after George Floyd was killed. You cannot say that officers are immune from every single thing that they do by having a doctrine that says, oh, you know, they thought what they were doing was lawful, or there isn't a case exactly like this, so they didn't know it was unlawful. And that is all a function of Supreme Court doctrine.

[Al Franken]

Yeah, I remember that after Renee Goode's murder, the vice president said that the ICE and border security people had absolute immunity.

[Dahlia Lithwick]

Right.

[Al Franken]

Which. There is no such thing. Right?

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[Dahlia Lithwick]

He walked it back, for what it's worth. Like, it was such an outrageous legal statement that he sort of, you know, Vice President Vance sort of walked it back. But I think as a. As a piece of signaling, Al, it's really, really important. Right. It's the same as the president now claiming he has complete plenary authority over elections administration. Right. They're now saying they're going to just, like, take over the midterms.

[Al Franken]

Okay, that can't happen. Right. Or can't.

[Dahlia Lithwick]

I mean, I mean, again, like, you're asking me lawyer questions, and they're asserting power questions. I mean, of course, the president has no authority over, you know, federal elections.

[Al Franken]

What'd you think of Fulton County? Just, I mean, that is amazing.

[Dahlia Lithwick]

It's a horror show.

[Al Franken]

This, of course, just for my listener, is sent the FBI down to look at the ballots that were cast in Fulton county, seize the ballot, not to look at them. And I think that's a stupid thing for him. Him to do, because either way, I mean, what are they. First of all, are they going to come up with a conclusion that actually it was fixed? Well, no one will believe that. Or they can come up with. They can actually do an honest thing and say it's exactly what it was. So I think he's he loses either way, really.

[Dahlia Lithwick]

So I will say this. I just finished taping, as you and I are taping. I finished taping my show for this weekend with Mark Elias, the voting rights litigator. And he said something that kind of sent a chill up my spine, which is if this was just kind of performative sour grapes, like, no, really, I won Fulton County. I'm seizing the ballots to prove it. You're exactly right. It's just dumb theater. But. But I think that we have to really understand that Tulsi Gabbard was there. Right? The TNI was there.

[Al Franken]

Right? Right.

[Dahlia Lithwick]

She was there because there is some weird, inchoate, foggy claim that this was, what, a national security problem? That this was an international election interference problem. And Mark's point, not to put too fine a, you know, point on it, but I think he's right. That's an escalation. Right. You are now claiming that the president can interfere, seize ballots anywhere he wants as long as he has some not even credible claim that there's election interference going on. And that's what's different here. It's not just, I sent in the FBI to gather up boxes of ballots. You're right. That's just childish and petulant. But the idea that he is. And again, I'm just quoting Mark Elias here, who litigates these cases, he is kind of putting down markers. Right. This is. Mark called it proof of concept that he can go into election polling places and say, oh, I'm sending, you know, Tulsi Gabbard in. Because I am just claiming and asserting that I have the power to say that there was international interference or there was election interference.

[Al Franken]

Yeah, it was Italian. Italian satellites. I rem.

[Dahlia Lithwick]

And also just one other parenthetical there. He has huge power if he can claim that there is an intelligence emergency or foreign tampering. And so this is an area where the courts tend to be very, very hands off. And so I think it's not just like the performance of, like, oh, she's there with. On the truck with the ballots. I think it's a way of saying, I am going to assert that there is, like, you know, an intelligence crisis in the midterms, and I'm going to send in the FBI to seize ballots. That's scary, scary stuff.

[Al Franken]

Oh, boy.

[Dahlia Lithwick]

Sorry, we're going to take a quick break.

[Al Franken]

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[Al Franken]

And we're back with Dahlia Lithwick. I mean, where does it stand with the two agents who shot and killed Alex Freddy? It seems like it took quite a while for the justice department to even start an investigation. Do you know where it stands in terms of who makes a decision on whether to charge and prosecute them? Who would do that in Minnesota, in Hennepin county, where Minneapolis is. And. And the state of Minnesota want to do.

[Dahlia Lithwick]

Yes. Yes.

[Al Franken]

Want to prosecute or at least look into prosecuting in.

[Dahlia Lithwick]

Yes.

[Al Franken]

Pretty. And. And good. And both were turned away to try to look at what happened at the site of the. Of the. Of the murders.

[Dahlia Lithwick]

That's exactly right. Federal agents so contaminated the crime scene and then locked them out of it that there had to be, you know, further. Further action to even determine whether they had jurisdiction to investigate. But I think you're. I think you're right. I think that there is a meaningful reason to believe that state officials will do an investigation. But, yeah, I don't think we're going to get any kind of federal accountability.

[Al Franken]

And no cooperation from.

[Dahlia Lithwick]

Definitely not.

[Al Franken]

Right. Well, I hope. I think they can still do it either Hennepin county or the state. I get into what federal agents can and can't do. I said they can go into. They used to be able. You have to have a judicial warrant. Right. To go into somebody's house we were talking about. But now they're saying an administrative warrant is what they need. What's the distinction there?

[Dahlia Lithwick]

One is signed by a judge and one is signed by your own agency. So there's no check. Right. It's essentially like the people that you work for, who you're responsible to, can sign an administrative warrant. So the purpose of a judicial warrant, at least in theory, is you have this other branch of government that isn't beholden to, you know, the prerogatives of your agency that acts as a check. So that's. That's gone now. We certainly are seeing huge pushback to that. And again, you're probably seeing all over Minnesota, people are like I'm just not responding to an administrative warrant. But they're literally claiming. Now we're hearing members of the Trump administration claiming like, we don't want to go to judges, neutral arbitrators of facts. That's just ridiculous. We just want, like, the same agency that the agents work for should be able to sign off. So there's a huge difference in terms of acting as a meaningful check. And I think we're now going to end up in a lot of litigation about whether one is sufficient. It's certainly not legally sufficient. But as I note, you keep asking me legal questions, and this is about, you know, we're in the world of power. Make me. Yep.

[Al Franken]

You recently wrote a piece in Slate, on Slate called Minnesotans showed us what it looked like to protect the Constitution. And I wholeheartedly agree. I saw it, of course, firsthand. And Minnesotans have stepped up to protect themselves and, and their neighbors. And as you said, people are bringing, you know, are doing amazing things for people who can't leave their homes or won't leave their homes, and including donating money so that by now people can't pay their rent. But you say, when people say, what can I do? You used to answer with very lawyerly and focused on reforms and stuff like that. But it sounds like you've changed in what you're saying people should do.

[Dahlia Lithwick]

I can remember having conversations with you over years about, well, we have to pack the court, we have to do gerrymandering reform, we have to enforce the Voting Rights act, we're gonna have to figure out about the malapport Senate. All these things that probably had, like, three listeners. Right. Because these are structural solutions to structural problems. And I still believe, and I know you still believe we need structural fixes, but I think one of the things that people kept saying to me for years and years is nobody cares about democracy. Nobody cares about democracy. It's the water we swim in. We don't know anything else. And so, like, telling people that they have to fix the Malaportion Senate or do away with the Electoral College is just like, you're like Charlie Brown's mom, like, wah, wah, wah, wah, nobody cares. And so I think one of the things that I saw shift, and again, you can describe it better than me, you've been on the ground there is that people really understand in a deep way on the ground in Minnesota that they are protecting democracy and that they are protecting, as I suggested, the First Amendment. And yes, after Alex Preddy, the Second Amendment and the Fourth Amendment and the Eighth Amendment and the Tenth Amendment and the 14th. And it's really incredible to see that kind of metabolized into the protests. And that this abstraction that for so many years as a journalist, and I know you as well, this abstraction of like, democracy is so flawed and it can be exploited and it has been exploited, but we need to fix it, has just like on a dime turned into like, oh, democracy is the thing that's going to save us. And it's going to require not necessarily structural Senate reform, but like people's bodies on the streets.

[Al Franken]

And that worked to some extent. I mean, we'll see to what extent in terms of, you know, I guess they're how many? About a third of the ICE and border patrol people are leaving Minnesota now and Bovino has left. But I think people are skeptical about whether things are actually going to change.

[Dahlia Lithwick]

Well, let me ask you this. I mean, I think one of the lessons I've learned in the last year of this administration is it's really easy to break stuff. Right. Like, if you just don't care, if you don't care about the Constitution, if you're just willing to like kidnap 5 year olds and send them to Dilly or to send people to seekot prison when there's no information suggesting they're gang members, that is easy. And I think that building democracy is really freaking hard. And so I think the thing, we're sort of in a foot race against ourselves here because they can blow stuff up probably faster than we can build it up. But I do think people freaking hate this. Right?

[Al Franken]

Yep. Now, there's some new regulations for DHS agents. Body cams, for example. That's good, right? I mean, that's. I guess. But was this going to make any difference in the administration? I mean, you still have Stephen Miller feels like he's running the show.

[Dahlia Lithwick]

Yeah. I mean, which is the answer to your, you know, having Bavino out. Right. Like, I think you get the cosplay guy out, but Miller's still there. So the answer to all these questions is yes, body cams are better than no body cams, although with the caveat that officers control the angles. They know how to turn it on and turn it. Right. It's not like fail safe. And we have certainly learned after Renee Goode and Alex Preddy, that video has been deployed by this administration, including altered. Right.

[Al Franken]

Well, that's amazing what they've done in that regard. Yeah. Use AI to the woman who was.

[Dahlia Lithwick]

At the church with Don Lemon. So I think we have to be skeptical. But also Grateful for anything we can get. And I also really think this is. Makes your point about having people out there on the streets with their own phones filming. Right. Because this really is a moment where, like, citizen journalism and civic duty says that the only thing better than body cams for everybody is 100 people with whistles who are filming this. And that's what has made the difference. And so I'm for more accountability. And I also think that's not enough. And as to the bigger question about what makes Stephen Miller go away and what makes Pam Bondi go away and what makes Kristi Noem go away, I mean, elections. Flipping a seat in Texas that nobody expected to see flipped this week, that's what's gonna do it.

[Al Franken]

SCOTUS has been up a lot since the last time we talked. They've been pretty consistent in covering for Trump. Has anything they've done surprised you? That's good.

[Dahlia Lithwick]

Not much yet. I think that this week they decided to leave in California's tit for tat. You know, when Texas decided.

[Al Franken]

I think they had to do that, considering how bogus the decision was in Texas right now.

[Dahlia Lithwick]

This is Goosebert the gander. Like this is, if we have to allow partisan gerrymandering, then we have to allow it. And so you're right. They had no choice, it looks like. I mean, again, it was a shadow docket, one sentence. We talked about the shadow docket last time I was here. I have no idea what that case means, but that was a nice surprise. And then I think. I think the other thing. You're absolutely right. Time after time after time, for the last year, the Supreme Court has heavily put a thumb on the scale for Donald Trump. And then in the last couple of weeks, we've started seeing, like, in oral arguments about replacing, you know, folks on the Fed, which is. Seems to be a bridge too far for the court.

[Al Franken]

They're not gonna go for that, right?

[Dahlia Lithwick]

Yeah, it looks like they're gonna balk on that.

[Al Franken]

We're talking about Lisa Cook, a member of the Federal Reserve Board, who Trump wants to get rid of because he's accused her of mortgage fraud.

[Dahlia Lithwick]

It's always housing fraud, and it's completely bogus. And it appeared that the justices, mindful probably of their own pocketbooks more than anything else, have sort of drawn the line around the Fed and said that Trump can certainly summarily fire anyone he wants from independent agencies, but not the Fed. And it looks like the court will show up on the side of Lisa Cook for that one. And I think also we don't know what's happening with the tariffs case, but again, a pretty skeptical response from the court to Donald Trump.

[Al Franken]

Yeah. What is going on with that? Because I thought Katyal basically nailed it, that only Congress can do tariffs. Right?

[Dahlia Lithwick]

Yeah.

[Al Franken]

And that's in the Constitution.

[Dahlia Lithwick]

Yes. And that aipa, which is the statute that Trump is claiming as his authority to do this, is just like a preposterous lift. Now, meantime, we wait every day for that decision to come down, and it still hasn't come down. And every day that the tariffs are in place is another mini disaster, particularly for the small businesses that can't absorb this, who are some of the plaintiffs in this case. So I don't know. It seemed like an easy case and it should have come down by now. And every day that it doesn't is not great. But I think that's a place where what I saw from the Roberts court was not the wholehearted, like, we love you, Donald Trump. Hold me tighter. It seems to be some healthy skepticism late in the game. It is really going to be interesting that the Supreme Court in the last couple of months has blessed Kavanaugh stops. Right. Like stopping people based on the suspicion that based on their language or race, they're in the country illegally. That has caused all the misery that we are seeing now.

[Al Franken]

That was an amazing thing.

[Dahlia Lithwick]

Amazing thing. You know, slashing all sorts of funding to all sorts of entities. Supreme Court has blessed every piece of that. And the thing where they draw the line, as we have just suggested, is the Fed and tariffs. And it certainly hints to me al that. But constitutional questions, searches and seizures, freedom for people is much less urgent to them than their stock portfolios. There's almost no other way to look at this other than this hits them in the wallet. Depressing.

[Al Franken]

But now they agreed to take up birthright citizenship.

[Dahlia Lithwick]

Oh, boy. Yep.

[Al Franken]

Now they. Wait a minute. They can't. They can't. A rule.

[Dahlia Lithwick]

I mean, do you say they can't like.

[Al Franken]

Well, yeah, I would say they can't. This is a constitutional amendment. It's in the 14th amendment.

[Dahlia Lithwick]

This is. This is. Any sane, plausible reading of the text in history of birthright citizenship holds that the words mean exactly what they say they mean. They were drafted to mean precisely this. They have never, ever, ever been deemed otherwise. And this is the kind of like, bonkers Hail Mary that should be, you know, an easy easy out the door.

[Al Franken]

And you're gonna tune in for the oral arguments on that one?

[Dahlia Lithwick]

Yes. April 1st oral arguments.

[Al Franken]

Oh, really? Okay.

[Dahlia Lithwick]

Of course. April Fool's day, I think again, because we had the trial run of this right last year when the first round of the Birthright Citizen Ship Capes came to the court and it was limited to the jurisdiction, remember, of judges, whether judges could do nationwide injunctions.

[Al Franken]

Right, right.

[Dahlia Lithwick]

In the nation.

[Al Franken]

And they could do it with class action.

[Dahlia Lithwick]

Right. So the court left open a door to Sikh relief, although a small one. Now we're on the merits. Now we're not talking about judicial powers now we're talking about what the Constitution says. My guess is from oral arguments last year, you are not going to get five justices to say that the Constitution doesn't mean what the Constitution says it means. I don't think they're that cynical. But you know, I remember telling you that they weren't going to give Donald Trump immunity.

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[Dahlia Lithwick]

You.

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Visit spinquest.com for more details. Oh, how about our this, we talked about this before, which is Louisiana versus Calais.

[Dahlia Lithwick]

We're still waiting on that. That's the what' of the Voting Rights act is on the chopping block and right. This was the crown jewel of voter protection. And when the Supreme Court in Shelby county, remember they said, well, you can't use this anymore, but you can use this other section.

[Al Franken]

This is title two of the Voting Rights act which creates race based districts or minority majority districts to ensure that, you know, fair representation for minorities in states like Louisiana and Alabama.

[Dahlia Lithwick]

Yes. Even in this case Louisiana drew the districts reluctantly because court said they had to.

[Al Franken]

Right.

[Dahlia Lithwick]

And then the Justice Department switched sides and said we're not defending them anymore once the Trump Justice Department came in. And so we're still waiting to hear what's going to happen there. Although I think that it is fairly clear that the court is going to side against the voting rights groups and the civil rights groups that are defending the idea that you can have districts that enable and effectuate minority voting in a state. But I will say this is of a piece with this larger right attacks on affirmative action, on voting rights and in fact birthright citizenship in the 14th Amendment. Anything that was designed in order to ameliorate and mitigate the burden of enslaved people after Reconstruction has been reverse engineered into this is racism against white people.

[Al Franken]

Okay. Now the Supreme Court seems to be now caring about secrecy. It seems in the court, it seems that Chief Roberts had the clerks at the Supreme Court signed non disclosure agreements a while back that are legally binding. Right.

[Dahlia Lithwick]

This was an amazing piece of reporting by Jodi Cantor at the New York Times who found out that in 2024, John Roberts had every law clerk sign an NDA.

[Al Franken]

This was after Dobbs.

[Dahlia Lithwick]

It was after the Dobbs leak. And it was after clerks had spoken to Jodi Kantor and Adam Liptak and had leaked a bunch of information about how very, very, very confidential decision making was happening in the court. And so suddenly the crisis at the court was the clerks are talking. And it's so crazy in the context of this is a court that rejects transparency for itself, right? Like you and I have talked for years about stock disclosures. They recuse or they don't recuse. They don't tell us why they decide things on the shadow docket without reasoning. Like there is no transparency or vacations paid for or. Right. Vacations paid for. You know, conflicts of interest. It's all a huge secret. This is all stuff that those of us who think about the court have been imploring them to reform for years, right? Like just show us your work, tell us who's paying you. We just need to know that so we could have confidence in the institution and the crisis they choose to solve instead is that clerks are talking to journalists. And in the most charitable construction of the story, justices need confidentiality in order to trust each other. Right. They need to know that stuff isn't going to leak. And there was an informal set of norms after the book the Brethren was written, Right. Just all the justices dished about Justice Berger and blah, blah, blah. And after that, there was a pretty rock solid norm at the court that clerks didn't talk to the press. And they all knew that. They all wanted to get their half million dollar signing bonus at fancy D.C. law firms. Nobody talked to the press for years. And then as you say, we had the Dobbs leak. And suddenly clerks were just talking to reporters. And so this is the. They've decided to like, put their finger in this particular pie of like keeping the clerks from talking as opposed to the 10 billion other things they could do to foster public trust. Feels to me like it's like sweeping back the sea. The clerks are not the problem. The problem is the justices. But if this is what they want to do.

[Al Franken]

Okay, when Robert says he views the court as a family. Right. So I'm sorry.

[Dahlia Lithwick]

Yes.

[Al Franken]

Yeah. So maybe that dysfunctional family. So is there anything we haven't covered?

[Dahlia Lithwick]

Two things, if I may. One is where you started, which is Minnesota and people on the streets in much the same way. The no Kings rallies are people on the streets, like embodying constitutional values and really fighting for democracy as you and I understand it. And I just want to link that together with the stories we're hearing this week, Al, which are bone chilling about Steve Bannon saying they're going to send armed ICE people to, to surround polling places and Donald Trump saying they're going to nationalize elections, whatever the hell that means. And you know, Mike Johnson claiming that the 2020 election was stolen. Like, I just think people need to kind of lash together these two ideas that you can't just say we're going to flip them in the midterms, like they are going to try to steal the midterms. And it means that all of this amazing civic energy that people are embodying in Minnesota, right, protecting their neighbors, protecting their communities, making sure that they're care of each other, that has to be directed with equal force to protecting elections. Elections don't run themselves. They're incredibly fragile. And don't forget like Pam Bondi's threat right to Tim Walls, which was all this can be chilled out if you just give us all your voter data. So they are, everything is going to be a pretext to screw around with these elections. And I think that the thing, it's the question you asked me at the beginning, Alan. It's so important, which is like we are starting to learn with our bodies what democracy looks like and it's really scary. And people are heroes for putting their bodies on the streets. We are going to have to learn with our bodies what voting looks like and what protecting the vote looks like. And it really does mean when they say we're going to put ICE agents at the polling places when they say we're collecting your Social Security number and your names and we're, you know, all the voter roll in all these states and we're going to go after you. Like the impulse is going to be to go small. Maybe I won't vote. This is too scary, right? And I think that the same energy that is being directed to like, you can't do that to my neighbors. You can't do that to kids in my kids school. You can't do that, you know, to, to people who are here lawfully who are waiting for immigration proceedings, that energy now has to go to, if I can vote by mail, I'll vote by mail. If I can vote early, I vote early. If I can have seven people go with me to the polls and make a plan, I'm going to do that. If I can be a poll observer or a poll watcher or somebody who helps other people vote. But like, this has to be a thing we think about now, not in November, but like that same civic energy which says democracy doesn't just happen. It's really, really fragile. I have to take my whole body and throw it up against the machine. That's the thing that I think I'm really starting to see right now, which is you can't just shrug and say we'll handle this in the midterms. We have to like make it happen with the same energy that we are fighting against ICE and the Kennedy center and measles and all the other crap that's going on.

[Al Franken]

Well, thank you, Dalia.

[Dahlia Lithwick]

Thank you, Elle.

[Al Franken]

Well, I hope you enjoyed listening. That beautiful music is by Leo Katie, the great Leo Konke. I want to thank Peter Ogburn for producing this podcast. We'll talk again next week.

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