The Al Franken Podcast: Dahlia Lithwick on the Courts vs. Trump

Release Date: May 11, 2025
Guest: Dahlia Lithwick, Legal Analyst and Author

1. Introduction and Personal Tributes

The episode begins with Al Franken sharing a heartfelt tribute to his mother-in-law, Fran, who recently turned 102. Franken narrates Fran's inspiring life story, highlighting her resilience as a widow raising five children in Maine after her husband's tragic death. This personal introduction sets a warm and relatable tone for the episode. At [01:29], Franken reflects:

“They tell you to pull yourself up by your bootstraps, but first you have to have the boots and Social Security survivor benefits and scholarships and GI loans and Social Security made it all possible.”

2. The Current Legal Battle Against Trump

Transitioning from the personal tale, Franken introduces Dahlia Lithwick to discuss the ongoing legal challenges facing former President Donald Trump. At [07:00], Dahlia Lithwick re-enters the conversation:

“Well Daya, it's great to have you back. This has been. It's been too long.”

Franken emphasizes the gravity of the situation, stating at [08:04]:

“There are 200 different courts that have acted against Trump in the first hundred-plus days. I mean, he's losing across the boards.”

3. Birthright Citizenship and Constitutional Clarity

A significant portion of the discussion centers on Trump's attempts to redefine birthright citizenship, a topic fraught with legal complexities. Lithwick poses a critical question at [09:15]:

“Well, let's go right to the birthright citizenship, because I'm a little confused on this.”

Franken responds by underscoring the unambiguous language of the 14th Amendment:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.”

He further criticizes Trump's arguments, highlighting their lack of constitutional basis:

“They're arguing this is the most charitable take I can offer... it makes no sense on its face.”

4. Legal Firm Responses and Collective Action

The conversation shifts to the role of prominent law firms in resisting Trump's legal maneuvers. At [15:00], Lithwick inquires about the law firms' stance:

“So are they feeling silly now? Are they feeling stupid because of all the firms that have held out and look like they did the smart thing, or is that not how they see it?”

Franken explains the dynamics, emphasizing the collective resistance and legal victories:

“Perkins Coie was the first to say they wouldn't take a deal. And they were the first to win in court last week...”

He highlights the generational shift within the legal community, noting young lawyers' reluctance to engage in pro bono work under duress.

5. Executive Overreach and Judicial Resistance

A critical discussion point is the Trump administration's blatant disregard for judicial orders, particularly in deportation cases. At [21:20], Franken remarks:

“This is textbook constitutional crisis when you're flouting a judicial order.”

Lithwick adds context by referencing specific cases and judicial responses, reinforcing the administration’s pattern of defiance.

6. Consequences and the Shadow Docket

The duo delves into the implications of the Supreme Court's expedited decisions, often issued without thorough deliberation. At [32:12], Franken observes:

“But if, as we said at the Beginning, there are 200 cases that have ruled against Donald Trump, at some point some court has to be the court of last resort.”

He critiques the Supreme Court's handling of cases through the shadow docket, highlighting procedural anomalies such as issuing orders before dissenting opinions are filed.

7. Fetal Personhood and Future Legal Challenges

The conversation takes a concerning turn towards the concept of fetal personhood and its potential legal ramifications. Lithwick expresses alarm at the implications for women's rights and healthcare:

“That's the moment we're in. And you're exactly right...it's incredibly chilling.”

Franken elaborates on the dangers, citing real-world examples and the possibility of criminalizing miscarriages and other medical procedures.

8. Institutional Resistance and the Path Forward

In the final segments, Franken and Lithwick discuss the broader resistance from institutions like Harvard Law School and the importance of collective action. At [45:01], Franken advises:

“Don't think about this as, like, Harvard stands alone... we have to start to organize as though this is a team sport and not a solo sport.”

He emphasizes solidarity among professionals to counteract the administration's overreach, concluding with a note on the unyielding nature of authoritarian tactics.

Notable Quotes:

• Al Franken at [01:29]:
  “They tell you to pull yourself up by your bootstraps, but first you have to have the boots and Social Security survivor benefits and scholarships and GI loans and Social Security made it all possible.”

• Al Franken at [08:04]:
  “There are 200 different courts that have acted against Trump in the first hundred-plus days. I mean, he's losing across the boards.”

• Dahlia Lithwick at [09:15]:
  “Well, let's go right to the birthright citizenship, because I'm a little confused on this.”

• Al Franken at [15:00]:
  “Perkins Coie was the first to say they wouldn't take a deal. And they were the first to win in court last week...”

• Al Franken at [21:20]:
  “This is textbook constitutional crisis when you're flouting a judicial order.”

• Al Franken at [32:12]:
  “But if, as we said at the Beginning, there are 200 cases that have ruled against Donald Trump, at some point some court has to be the court of last resort.”

• Al Franken at [45:01]:
  “Don't think about this as, like, Harvard stands alone... we have to start to organize as though this is a team sport and not a solo sport.”

Conclusion

In this episode, Al Franken and Dahlia Lithwick provide a comprehensive analysis of the escalating legal battles between the Trump administration and the judiciary. They explore the intricate challenges to constitutional protections, the resilience of legal institutions, and the critical need for collective action to uphold the rule of law. Through insightful dialogue and sharp critiques, the episode underscores the profound implications of executive overreach and the vital role of the courts in preserving democratic principles.

This summary captures the essence of the podcast episode, focusing on the substantive discussions between Al Franken and Dahlia Lithwick while omitting advertisements and non-content segments.