Dahlia Lithwick on The Godawful SCOTUS Term

Summary

Podcast Summary: The Al Franken Podcast - Episode with Dahlia Lithwick on The Godawful SCOTUS Term

Episode Details

• Title: Dahlia Lithwick on The Godawful SCOTUS Term
• Release Date: July 13, 2025
• Host: Al Franken
• Guest: Dahlia Lithwick, Host of Slate's Amicus

---

Introduction

In this riveting episode of The Al Franken Podcast, host Al Franken welcomes esteemed legal analyst Dahlia Lithwick to discuss the tumultuous recent term of the Supreme Court of the United States (SCOTUS). The conversation delves deep into several landmark decisions, the pervasive influence of the shadow docket, and the broader implications for American jurisprudence and civil rights.

---

Major Supreme Court Decisions of the Term

1. Trump Administration's Authority to Fire Federal Employees

• Discussion Highlights:
  • The Supreme Court allowed the Trump administration to terminate tens of thousands of federal employees without congressional involvement, overturning a lower court's injunction.
  • This decision, though temporary, signifies a shift towards granting the presidency increased executive power.
• Notable Quote:
  • Al Franken (00:50): "The administration gets to keep slashing the agencies that keep our government running and serving Americans."

2. Florida's Immigration Lawsuit

• Discussion Highlights:
  • SCOTUS upheld a lower court's decision preventing Florida from enacting criminal penalties against unauthorized migrants entering the state.
  • The ruling suggests a reaffirmation that immigration oversight remains a federal responsibility.
• Notable Quote:
  • Al Franken (01:20): "It's not that I'm confident of our government's current approach to doing so. I mean, Alligator Alcatraz is absolutely horrifying, but I am glad that Floridians won't be able to go after immigrants on a state level, too."

3. Birthright Citizenship Case

• Discussion Highlights:
  • The District Court of New Hampshire certified a lawsuit against Trump's attempts to dismantle birthright citizenship.
  • The Supreme Court's decision did not address the definition of birthright citizenship but instead prohibited lower courts from issuing nationwide injunctions.
  • This move potentially allows the administration to proceed with policies undermining the 14th Amendment.
• Notable Quote:
  • Dahlia Lithwick (12:44): "Then you don't have <...> you can be deported. This is an open and shut issue."

---

The Shadow Docket Explored

Understanding the Shadow Docket:

• Definition: An emergency docket where SCOTUS issues decisions without full hearings, often resulting in swift, terse rulings without detailed explanations.
• Implications:
  • Dahlia Lithwick emphasizes that the shadow docket bypasses standard judicial procedures, enabling rapid, often opaque decision-making that can have profound legal and societal impacts.
• Notable Quote:
  • Dahlia Lithwick (05:11): "The shadow docket is the court's emergency docket, right? Cases don't get briefed, they don't get argued. They just rock it up there and the court issues a decision."

Impact on Recent Decisions:

• SCOTUS has increasingly relied on the shadow docket to advance executive actions favoring the Trump administration, raising concerns about transparency and judicial overreach.
• Notable Quote:
  • Dahlia Lithwick (07:10): "These are really important, I would say as important as a lot of the merits cases."

---

In-Depth Analysis of the Birthright Citizenship Ruling

Legal Framework:

• Based on the 14th Amendment, Section 1, which grants citizenship to individuals born in the United States, barring specific exceptions (e.g., children of foreign diplomats).

Supreme Court's Ruling:

• Outcome: Prohibited lower courts from issuing nationwide injunctions against the Trump administration's executive orders targeting birthright citizenship.
• Reasoning:
  • Majority opinion by Justice Barrett suggests alternative legal avenues like class action lawsuits but acknowledges these routes do not offer the same comprehensive relief as nationwide injunctions.
• Notable Quote:
  • Dahlia Lithwick (15:22): "Only the Supreme Court can decide if an issue is, you know, sufficiently exigent that it needs to be enjoined."

Implications:

• For Immigration Policy:
  • Potential for a fragmented landscape where some states uphold birthright citizenship while others do not, leading to legal and societal chaos.
• For Judicial System:
  • Weakens the ability of lower courts to act as a check on executive power, consolidating more authority within the presidency.
• Notable Quote:
  • Al Franken (30:31): "She wrote kind of an apocalyptic opinion."

---

Other Significant Cases Discussed

1. LGBTQ-Themed Storybooks in Public Schools (Mahmoud v. Taylor)

• Overview:
  • Parents sought to withdraw their children from public school lessons featuring LGBTQ-themed storybooks.
  • The court ruled against the parents, emphasizing the importance of diverse educational materials.
• Notable Quote:
  • Dahlia Lithwick (36:17): "The very nature of what public education is, right? Public education is you get exposed to a lot of stuff that your parents might not love."

2. Gender-Affirming Care for Minors (United States v. Skremetti)

• Overview:
  • Challenges against states banning parents from consenting to gender-affirming medical treatments for their minor children.
  • The court sided with the bans, denying transgender youth access to hormone treatments and puberty blockers.
• Notable Quote:
  • Dahlia Lithwick (40:08): "This is clearly discrimination on the basis of sex."

3. Voting Rights Act Challenges

• Overview:
  • The court deferred a critical case that could significantly undermine the Voting Rights Act, signaling potential future erosions of voting protections.
• Notable Quote:
  • Dahlia Lithwick (44:23): "I think what we're going to get from the court is whatever vestiges of the Voting Rights Act sort of remained after the line of cases... are going to go away."

4. Campaign Finance Reform (National Republican Senatorial Committee v. Federal Election Commission)

• Overview:
  • The Supreme Court agreed to hear a case that could dismantle key aspects of campaign finance laws, further entrenching the influence of money in politics.
• Notable Quote:
  • Dahlia Lithwick (46:56): "This will allow even more donors to give even more money directly to the parties and to coordinate their spending with the candidates."

---

Broader Implications and Conclusion

Erosion of Judicial Checks:

• The Supreme Court's actions this term illustrate a trend towards diminishing the judiciary's role as a check on executive and legislative powers, particularly through the increased use of the shadow docket.

Impact on Civil Rights:

• Decisions affecting birthright citizenship, LGBTQ rights, and voting protections represent significant setbacks for various civil liberties, potentially leading to a more divided and unequal society.

Future Outlook:

• Dahlia Lithwick anticipates that these legal shifts will lead to greater fragmentation in federal policies, increased executive overreach, and heightened challenges for civil rights protections in the upcoming Supreme Court term.

Notable Quote:

• Dahlia Lithwick (48:42): "Those are the only two players. And Congress is...It's sidelined itself."

---

Key Takeaways

• Shadow Docket Concerns: The Supreme Court's reliance on the shadow docket enables swift, often opaque decisions that can bypass the usual judicial scrutiny, raising alarms about transparency and accountability.

• Birthright Citizenship Crisis: The prohibition of nationwide injunctions against altering birthright citizenship threatens to create a patchwork of citizenship laws across states, undermining the 14th Amendment's intent.

• Civil Rights at Risk: Ongoing and upcoming cases signal a potential rollback of significant civil rights protections, including voting rights and LGBTQ+ rights, posing long-term societal challenges.

• Judicial and Executive Dynamics: The interplay between an empowered executive branch and a judiciary retreating from its traditional role as a check fosters an environment ripe for authoritarianism and legal uncertainty.

---

Closing Remarks Al Franken and Dahlia Lithwick's engaging discussion underscores the critical junctures at which the U.S. legal system currently stands. Listeners are encouraged to stay informed and engaged as these judicial trends continue to shape the nation's legal and societal landscape.

Transcript

[Ryan Seacrest]

It is Ryan Seacrest here. There was a recent social media trend which consisted of flying on a plane with no music, no movies, no entertainment. But a better trend would be going to chumbacasino.com it's like having a mini social casino in your pocket. Chumba casino has over 100 online casino style games, all absolutely free. It's the most fun you can have online and on a plane. So grab your free welcome bonus [e-mail] sponsored by Chumba Casino.

[Unknown]

No PURCHASE NECESSARY VGW Group Void where prohibited by law 21/ terms and conditions apply.

[Al Franken]

Hey everybody. We got a terrific yet disturbing one today because the great Dahlia Lithwick is back to give us an overview of the Supreme Court's term. Dalia is the host of Slate's podcast Amicus and part of our pantheon of all time favorite guests. Now, the Supreme Court wrapped up at the end of June and they're in recess until early October. So when Dahlia and I taped this interview earlier this week, I figured we'd be able to cover everything and keep it up to date for you all. But as it goes, three notable legal decisions have come out in the past few days, and I wanted to do my best to share those with you. On Tuesday, the Supreme Court gave the Trump administration permission to fire tens of thousands of federal employees without involving Congress, lifting a lower court's order. Now, this decision is technically temporary, so a lower court could later find that Trump abused that authority. But the Supreme Court seemed intent on handing the presidency more and more power. So in the meantime, the administration gets to keep slashing the agencies that keep our government running and serving Americans. On Wednesday, the Supreme Court upheld the lower court's ruling that Florida cannot enact criminal laws to prosecute unauthorized migrants who enter the state. The court did not release an opinion alongside the ruling, but it's my guess that they believe it's the federal government's responsibility to oversee matters of immigration. And it's not that I'm confident of our government's current approach to doing so. I mean, Alligator Alcatraz is absolutely horrifying, but I am glad that Floridians won't be able to go after immigrants on a state level, too. And on Thursday, the District Court of New Hampshire certified a lawsuit against Trump's effort to effectively end birthright citizenship as we know it. Now you'll hear me and Dalia discuss the Supreme Court's decision on birthright citizenship, which didn't rule on the definition of birthright citizenship, but that ruled that district courts could no longer issue nationwide injunctions. So we also discussed the possibility of another approach to stopping Trump's executive orders through class action suits. And that's exactly what's unfolding now. And it looks like it actually might work. It gets a little complicated. So I know I'll be listening to Dalia's next episode on Amicus, when I'm sure she'll be explaining the latest out of New Hampshire. Well, and today is Friday, so if anything else happens before this episode drops, you'll just have to figure it out for yourself. And there's plenty of other good news. Trump has decided to start rearming Ukraine after learning that we had stopped. That's right. Evidently, Secretary of Defense Hegseth had cut off weapons to Ukraine without bothering to tell the commander in chief. So the president said that we would be supplying them with badly needed defensive weapons as the Russians continued their air assault on military and civilian targets. A lot of MAGA Republicans don't like that. They're also unhappy because Trump wants to give amnesty to undocumented immigrants who work on farms, in hotels, and potentially other industries. Also, a lot of them are mad about Trump getting us involved in the war between Israel and Iran. Actually, I thought the Iran thing worked out pretty well for him. But a lot of these MAGA folks don't want us involved in any foreign wars, especially in the Middle East. And who can blame them, really? There, I've just taken both sides of an issue, and we've got a great one today, you know, for a change, with Dahlia Lithwig, everybody. Thanks, Dalia, for doing this.

[Dahlia Lithwick]

Of course. Always.

[Al Franken]

It's been an eventful term.

[Dahlia Lithwick]

Oh, boy, oh, boy.

[Al Franken]

Was the Birthright Citizenship case the last decision?

[Dahlia Lithwick]

Yes, it came on the last day. Yep.

[Al Franken]

And we talked about it when it was argued. But you think that what happened on the shadow docket was more important than that decision? Why?

[Dahlia Lithwick]

I think that. Here's what I think, and you will appreciate the metaphor, Al. I've been waiting to talk it over with a person who understands. Front stage backstage.

[Al Franken]

Okay.

[Dahlia Lithwick]

Front stage is everything that the court does on its regular docket. You know, all the cases that are briefed and they're argued and they come up through the appeals courts, and we have a sense of what's going on. And then the last two weeks of June. Right. Like a jack in the box, we get all these decisions, and usually that's the court being really, really meticulous about what's happening on the stage. Right. Look at. Don't look at the men behind the curtain. Like, look at the work product, what we're putting on the stage. And I've been covering that court for 25 years. And just for folks who don't know, the shadow docket is the court's emergency docket, right? Cases don't get briefed, they don't get argued. They just rock it up there and the court issues a decision. And sometimes the decision is three lines, sometimes it's three paragraphs, Sometimes there's no logic. It's just a decision. And what's been happening since Donald Trump took office is that we've had these, like, unbelievable thermonuclear cases decided on that emergency docket. And by the way, those cases tend to be 636 3, right? Super majority versus the liberals. And we don't always know what the law is. It's just the court issuing an emergency opinion. And so I think the point I want to make is if you're looking at the part of the story that is what the court is doing, like on stage, where they're carefully choreographing, you know, what decisions come down, when and who writes the opinion, and it's all like, super, super organized, then you're missing the other half of the story, which is the court's sort of like dropping its pants for us backstage. It's like, here's the justices just purely partisan, not explaining themselves. And these cases are really important, I would say as important as a lot of the merits cases.

[Al Franken]

Well, what are the important ones? Or one or two of the important ones that were on the shadow docket and we didn't get to hear a lot about.

[Dahlia Lithwick]

Well, I mean, the most important one, and I think we even talked about this last time I was on the show, Al, was, you know, when Judge Boasberg, James Boasberg had said, you know, you can't just, like, send a bunch of migrants to seacot prison in El Salvador without any due process. Right. He tried to stop the planes.

[Al Franken]

Well, this is one where they went with the right decision, except that it wasn't enforced.

[Dahlia Lithwick]

Well, they cut. They cut Judge Boasberg off at the knees. Right. They said they removed his ruling. What they said was, you're exactly right. They said we need some kind of due process. Like, it's not enough to just, like, put people in a rocket ship to the moon and send them away without telling them why. Since then, they've backed off that a little bit in a series of other cases. But that's a good example of a case that Just gets decided that we don't actually fully know what the court intended. And then the case that came down the same week as birthright citizenship had to do with shipping people off non citizens who are eligible for deportation, but shipping them off to what is called third party countries, right. Like South Sudan, like Sudan, countries that we tell Americans, do not go there, your life is in danger. Countries that violate right. Are tortured statutes. And so the, the lower court, Judge Brian Murphy, was really clear. He was like, there are a whole bunch of criteria you have to meet in order to send somebody to a torture country without any process. And the Supreme Court essentially just scrubbed it. They were like, it's all good, it's fine. They didn't explain the reasoning at all. They just, they removed his injunction.

[Al Franken]

And those, those guys are now in South Sudan. Right.

[Dahlia Lithwick]

I think they're on their way as of this taping because there was a subsequent decision, the same judge said, okay, I don't fully understand which order you're enjoining or what.

[Al Franken]

Unlike the guys who are shipped, the 200 plus guys are shipped to El Salvador. This is like eight guys who all were convicted of serious, serious crimes.

[Dahlia Lithwick]

Yes, these are all people who were absolutely deportable. But the question is where you deport them? And we have longstanding opposition and statutory prohibitions on shipping people to places where they are likely to be tortured. And the court essentially said, y' all just do your thing. We're not going to explain why the judge tried to issue another order saying like, no, not these eight guys. They haven't had any kind of process. And again, in a kind of very, very brief opinion, the court just was like, nah, all of this stuff, everything you and I have talked about, all of that is happening on the shadow docket. And so a judge, if you think about it this way, the only guidance a judge has from the court is the court's opinion. Right? I always say the court has one job. Show your work. So that in a similar situated case, a judge knows what to do. Even the judge who issued the injunction doesn't know what the reasoning was because there's no reasoning. It's back of the napkin stuff. And so when we talk about the shadow docket, and I always tell people, read Professor Steve Laudick's amazing book, the Shadow Docket. But when we talk about the shadow docket, we're talking about a system that circumvents all of the sort of normal steps of how you do an appeal, usually skipping intermediate courts. And then the court just sort of hacks up a hairball of a decision that no judge knows how to obey it.

[Al Franken]

And the Supreme Court justices will be on vacation now, but they'll be doing shadow docket opinions during the summer.

[Dahlia Lithwick]

They have a bunch of emergency applications. They're going to continue to have them. And just by way of. I want to be fair, there's always been an emergency docket at the Supreme Court, usually for executions. Right. They routinely, on the shadow docket, let executions go ahead. That's why there's a shadow docket. But the Trump administration, Both in Trump 1.0 and now in 2.0, they just kind of got in the habit of using the emergency docket kind of as their speed dial to scotus. They're like, we just use it every time we lose on. On anything.

[Ryan Seacrest]

Hello, it is Ryan. And we could all use an extra bright spot in our day, couldn't we? Just to make up for things like sitting in traffic, doing the dishes, counting your steps, you know, all the mundane stuff. That is why I'm such a big fan of Chumba Casino. Chumba Casino has all your favorite social casino style games that you can play for free, anytime, anywhere with daily bonuses. So sign up [e-mail] that's Chumbacasino. Com.

[Unknown]

No purchase necessary. VGW Group void where prohibited by law 21 + terms and conditions apply.

[Al Franken]

Okay, well, let's turn to the birthright citizenship case decision. Really? That was a big deal. But they didn't decide on birthright citizenship, right?

[Dahlia Lithwick]

Correct.

[Al Franken]

They decided to ban nationwide injunctions from lower courts.

[Dahlia Lithwick]

Exactly. So you and I talked about this. When it was argued, when they argued.

[Al Franken]

Was this brought up as a possibility?

[Dahlia Lithwick]

Yes. It was not just brought up. It was the kind of clever way that the Trump administration got this case before the Supreme Court because they had lost in every other lower court. Every single judge who looked at this case said, you absolutely can't just, like.

[Al Franken]

Change birthright citizenship rules.

[Dahlia Lithwick]

Yeah. Section one of the 14th amendment. You can't, like, just, you know, paint over it.

[Al Franken]

Yeah. And this is basically a huge basic decision in the 14th amendment. Does 14th amendment start with it?

[Dahlia Lithwick]

Yes, it's section one and it is absolutely unequivocal. We talked about this a couple of months ago. It is very clear what the drafters were trying to do. And what they were saying was if you're born in the United States, unless you're like a foreign, the child of a foreign diplomat or, or, you know.

[Al Franken]

A warrior, like a foreign invader, okay.

[Dahlia Lithwick]

Then you don't have obviously birthright citizenship, but absent very narrow circumscribed exceptions, if you're born in the US you're an American citizen, period, end of story. That was always the intention and, you know, a bunch of smart alecks. Again, we talked about this when the case was argued, but a bunch of people were like, oh, well, it says subject to the jurisdiction. Right. So if your parents are not citizens, they're not subject to the jurisdiction of the United States, so you can be deported. This is an open and shut issue. The US Supreme Court has decided this. It has been reinforced in multiple statutes. Not an issue.

[Al Franken]

And this is, you know, an executive order.

[Dahlia Lithwick]

Exactly.

[Al Franken]

That Trump, in the first day, right. First day he was in office, signed this executive order getting rid of citizenship for people who are not. Don't have a parent who is an.

[Dahlia Lithwick]

American, either an American or a lawful, you know, permanent resident, a green card holder or some such, and gave them 30 days for this to go into effect. And it was enjoined. Enjoined. Enjoined. We're going to get to that in a second. The lower courts that heard it, all of them issued what's called a nationwide injunction. In other words, this isn't just prohibited here where I'm sitting, this is across the country.

[Al Franken]

How many district courts rule on this?

[Dahlia Lithwick]

Three district courts, three appeals courts. And so Trump lost and lost and lost. And the normal course of events would be that Trump would take that question. Right.

[Al Franken]

Okay, so this says that a district court can't issue a nationwide injunction. Can an appeals court? No, the only only is the Supreme Court.

[Dahlia Lithwick]

Only the Supreme Court can decide if an issue is, you know, sufficiently exigent that it needs to be enjoined. And if you read Justice Barrett's opinion for the majority, she says, oh, you know, there's other ways for plaintiffs to get what she calls complete relief. But the ways that she offers, she's like, for instance, you could do a nationwide class action suit, right? There's a whole bunch of other things you can do, but none of those things can give the plaintiffs the kind of relief that a nationwide injunction would give.

[Al Franken]

Now, nationwide injunctions have been with us for how long?

[Dahlia Lithwick]

They've been with us for over 100 years. Although there is good scholarship to say that there were analogues that were used since the founding, that there are other kinds of judicial relief that look like and quack like universal injunctions.

[Al Franken]

So anytime during the last hundred years, a Supreme Court could have made the same decision that this one did, and this one could have made the Same decision over the last four years when Biden was getting hit with these over and over again. Right.

[Dahlia Lithwick]

100%. And more to the point, when Biden was hit with them over and over again, people will remember, you know, student debt relief. Right. Student loan relief. People will remember mifepristone. Right. When they enjoined it nationwide.

[Al Franken]

Who was the judge in Texas that did the first mifepristone?

[Dahlia Lithwick]

Matthew Kaczmarek.

[Al Franken]

He's like a guy. He's the only district court judge in.

[Dahlia Lithwick]

His district in Amarillo. Yep.

[Al Franken]

So right wingers go to him.

[Dahlia Lithwick]

Correct. To decide things, and then he enjoins them nationwide. And not only did the court not decide it, but the Biden administration brought it to the court. They were like, you know what? These nationwide injunctions are a real pain in the ass. So we would like you to rule on this. And the court was like, oh, no, no, no, we don't. We're not going to decide on that issue.

[Al Franken]

So this. This shows a bias. I would think pretty clearly that they ruled on this. They. They decided now, after this has been around for 100 years, they cited. Now, not in the last four years, when Biden was getting hit with these nationwide injunctions over and over again, but now when Trump is five months into.

[Dahlia Lithwick]

The Trump administration, and the vehicle to do this is a case that they would surely lose. Right. If they had brought this to the U.S. supreme Court on the merits, not the nationwide injunction question. But can we just scratch out Section 1 of the 14th Amendment? They would have lost.

[Al Franken]

Are they gonna decide this, like, next term or maybe not. I don't know. What are they gonna do?

[Dahlia Lithwick]

Well, so this is one of the really tricky things about this case. Justice Kavanaugh writes this kind of completely incoherent concurrence to Justice Barrett's majority opinion, where he's like, the doors are open. Bring us, you know, any of your cases. We're here to solve things. You know, we're busy, busy, busy. So you go ahead and you bring us all of your, you know, the court heard the fewest number of cases this term. The than it has. I'm trying to remember in how many decades, like, they hear almost no cases.

[Al Franken]

How many cases does the Supreme Court usually take?

[Dahlia Lithwick]

I mean, in my career, it went from 80 to 70 some. This year, I think there were 65, 67 merits opinions. So the idea that the court is gonna just solve this willy nilly, but there's a bigger problem, and this came up at oral argument, and it was a huge problem for Trump's Solicitor general, they lost. They lost all these cases in the lower courts and they didn't appeal it on that issue. Right. So one of the questions that comes up at oral arguments is, so you're going to lose a bunch of times and this will still, because you can't have a nation injunction be the law for half the country. In other words, we have no promise.

[Al Franken]

So has any district court ruled the other way?

[Dahlia Lithwick]

No.

[Al Franken]

Okay.

[Dahlia Lithwick]

No.

[Al Franken]

But they can. So Kacmeric can if he wants to, right?

[Dahlia Lithwick]

Yeah. They'll find a court that will say that this is perfectly permissible.

[Al Franken]

In other words, some. They may find a judge who will say, no, you have to have a parent who is a citizen or has what residence?

[Dahlia Lithwick]

Legal, permanent residence.

[Al Franken]

Yeah, yeah.

[Dahlia Lithwick]

I mean, they could. It's going to be hard to find plaintiffs who want to file in Judge Kaczmarek's court. But the much bigger issue is, and this is the problem with the relief, is that even if you could create a huge class action lawsuit, right, and get every single parent who is a non citizen to sign up, first of all, pay lawyers fees, right. And sign up to be parties to a class action suit, this Supreme Court has been cutting off, like choking off the ability to do class action suits. I mean, you know, this, they've been doing this for years now. And so to say, like, oh, this is the better pathway come to us through a class action while the same court is doing away with class actions is just like comedy gold, a class action.

[Al Franken]

Why don't we just describe for our audience what a class action is? A lot of people get together and they file a class action. And how do they represent a whole class?

[Dahlia Lithwick]

Well, I mean, essentially what happens is you find a bunch of plaintiffs that have almost exactly the same claim, right? They have to have almost identical harms to them. And then judge can certify a class, and then that class can, like, broadly represent everyone who has the same imminent harms. But it's really, really hard to certify a class. One and two, some of the plaintiffs in this case were states, right? There were states that came to the court and said, we're suing because we as a state can't administer this. What are we going to do? Are we going to take away, you know, education benefits? Are we going to take away health benefit? Like, there's a huge cost to the states of having millions of stateless children born in the United States, and states cannot be parties to a class action. So the court said, we're going to leave a door open for the states to continue to sue. But the larger problem is you have to have access to attorneys. You have to be able to fund this. The idea that some person who's not a citizen is going to wave their hands and be like, oh, look at me. I want to draw attention to myself. My baby's going to be born still.

[Al Franken]

Okay, I got it. Yeah, I want to bring attention to myself now. Jackson issued an opinion that was pretty, pretty brutal.

[Dahlia Lithwick]

There's a really interesting split that's starting to happen amongst the three liberals. Justice Elena Kagan has dissented much less than Justice Sotomayor and Jackson. She often joins quietly. I think it's her just general view that there's too much like angry dissenting. Justice Sotomayor in this case wrote a really rock solid sort of structural dissent saying, you know, this is all. These are all the reasons that the majority is wrong. They get history wrong. They don't understand originalism. And then Justice Jackson dissented for herself alone and nobody else signed, neither Kagan nor Sotomayor. And you're right, Al, it's just a barnstormer. It is a barnstormer of a dissent in which she more or less says the United States Supreme Court has just created what she calls a law free zone for this administration to act and for them to act illegally. And she cites to this idea from this World War II scholar called Ernst Frankel of a dual state, a state in which it seems like you're not in an authoritarian state because the law works, right? Contract law works and property law works, and you get a parking ticket and you pay the fine and it works. But around the edges, there is this authoritarian, creeping authoritarianism that's going after certain disfavored minorities. And Frankl was writing about Nazi Germany, which she had to flee. And Justice Jackson essentially cites to that and says, we are creating this state within a state where the administration is free to treat non citizens like garbage in a million ways. And the law looks like it's ticking along and operating because you and I are fine. Right.

[Al Franken]

She wrote kind of an apocalyptic opinion.

[Dahlia Lithwick]

I mean, she essentially is like, you know, we can't have her dissent. Yeah, we can't have the rule of law if we're going to put a thumb on the scale for this administration and give them carte blanche to be lawless. And it's interesting because in her majority opinion, Justice Amy Coney Barrett is so dismissive and snarky that she's like, I'm not even gonna bother to address that. And you know, you can really see the fraying.

[Al Franken]

Oh, man. Sotomayor read from her opinion, right? She read her dissent, the whole thing. But she read her dissent. And that's unusual. She read it out loud, isn't it?

[Dahlia Lithwick]

She's doing it more and more. The justices do it. You're right. It's rare. They do it when they really want to be heard and when they want to sort of say, in the strongest, most emphatic sense, I dissent from this.

[Al Franken]

And they didn't say, I dissent respectfully.

[Dahlia Lithwick]

Right. It was not.

[Al Franken]

They left out respectfully.

[Dahlia Lithwick]

They're very upset. And I think that there's a feeling, I guess I would just say this. I think that they feel like there's a lot of lawyers tricks going on. Right. There's a lot of lawyers tricks to get these cases to the court. Right. We talked about the shadow docket and the leapfrogging and not bringing the case on the merits, bringing it on another issue entirely. Those are lawyers tricks. And then the court is using a bunch of lawyers tricks, Right. Blinkering itself to what the Trump administration is doing and then just making, issuing. You know, Barrett's opinion looks like a law professor.

[Al Franken]

Well, the fact that they went where they went on this one, which is instead of deciding on birthright citizenship and the definition of it, that they went to completely eliminating the ability of district courts to issue nationwide injunctions after this has been around all this time and was around for the last four years, dinging Biden over and over again. It's suspicious that they decided now to do this. More than suspicious.

[Dahlia Lithwick]

Yeah, it's. It's more than suspicious. And just to be clear, birthright citizenship is not the only case that was the issue that was enjoined. There's more than two dozen nationwide injunctions on usaid, on impoundment, on defunding hospitals. Right. Like, the strongest pushback against this administration's lawlessness has been district court judges issuing nationwide injunctions. So it's not just that birthright citizen kicks in, birthright citizenship kicks in. All those other cases that were enjoined in the courts now are back to the drawing board.

[Al Franken]

So it really strengthens the executive. It really strengthens Trump.

[Dahlia Lithwick]

It strengthens Trump. And I would say one further. Last year, when you and I did the end of the year show after the immunity case, we talked about the ways in which the court was crapping all over the Justice Department. Right. And prosecutors, you know, and they can indict a ham sandwich and how, you know, how suspicious they are. That same dripping contempt is now being leveled at district court judges. You know, these are judges around the country appointed by Reagan, Bush, Trump himself, you know, who are issuing injunctions because they're trying to do their level best, to be good judges and apply the law and to have the court talk about them as though they're like a bunch of like coked up tween girls, you know, just willy nilly deciding issues recklessly. And one other piece of this, I mean, you know as well as I do, these are the district court judges that are being threatened with impeachment. People are doxing them. People are, you know, harassing their families. Right. These are district court judges around the country who, who have seen a huge uptick in violent threats to their families, their kids.

[Al Franken]

We've seen that actually happen.

[Dahlia Lithwick]

That's happened. Absolutely. And Trump going after them by name. And those are the people that you would think the U.S. supreme Court would say, hey, we have no respect for Congress and we think that everyone else is an idiot and everyone at the Justice Department is a deep stater. But the one thing I thought they would protect for, for Article 3 federal judges just like themselves. And instead we get a case that is not just taking away the power of those judges to do justice, but also talking about them in the most contemptuous terms. And the real danger in this case is that those judges who have been for five months sticking their necks out and saying, like, okay, I don't care if it's a risk to my family, I don't care if they're going to threaten to impeach me, I'm going to do the right thing. And they're the ones who've been stopping mass firings from Elon Musk. And these are judges doing the only work that can be done to stop the juggernaut and to have them to be told like, eh, what you're doing is just wrong and lawless. Why would any judge stand up to Trump after this?

[Al Franken]

So it's fair to say this decision is as bad as anything that was on the shadow docket.

[Dahlia Lithwick]

I mean, I continue to think that if you can deport anybody without due process, without telling them why, you're sending them to a torture country that's, I don't know, like, pick your poison, pick your poison. I will say the effect of this is going to be exactly what we talked about after Dobbs, when you and I talked after Dobbs, which is that they're going to be birthright citizenship states and non birthright citizenship states. And if you're born in New Jersey. And if you're born in Pennsylvania, you're a citizen in one and not in another. Like it's going to be a complete patchwork of who is a citizen. And in terms of what both the drafters of the 14th Amendment wanted and the just the fundamental notion that we don't believe people should be stateless, this is a catastrophe. Birthright citizenship. Absolutely. Agreed. But I do think, like it's just important to watch front stage and backstage because they're both the same story.

[Al Franken]

So they're not going to decide this. This court is going to actually decide birthright citizenship maybe next term or maybe they won't.

[Dahlia Lithwick]

Maybe they won't. Maybe. I think they have just greenlit the.

[Al Franken]

Chaos and the chaos that you're talking about will happen if they certainly if they don't.

[Dahlia Lithwick]

There's 30 days. There was a 30 days.

[Al Franken]

What is the 30 days? What is the 30 days?

[Dahlia Lithwick]

Presumably it's for plaintiffs to, you know, get it together and file class actions. And that has happened. There have been a lot of the same plaintiffs have, have tried to refile. And it also gives the states, I guess, some opportunity to figure out how this is going to be administered. I mean, what are we going to do? Are we going to like march around hospitals and demand to see people's, you know, their parents birth certificates? Are we going to demand that parents have a baby and march down, you know, and prove something and produce documents so the states don't know what they're going to do, but at the end of 30 days, presumably in half the states that haven't challenged this some way or another.

[Al Franken]

Well, if a district court rules the other way that different from the three of ruled the right way, then we'll know that it's chaos.

[Dahlia Lithwick]

I mean, no, it doesn't need to, it doesn't require that. Because in any state that didn't challenge birthright citizenship, if there's been no challenge, this goes into effect. So really. Yep, this is, this is going to be very much like the world after Dobbs where you have abortion states and non abortion states and very much like the world post Dobbs, you're going to see people crossing straight state lines in order to. Right. Give birth in order.

[Al Franken]

Right.

[Dahlia Lithwick]

So it's chaos. And it's, it's, it's, you know, I think it's fair to say, no surprise, it is wreaking chaos on the most vulnerable communities that don't have, you know, the wherewithal to they probably most of the people who will be affected by this in the near term will will not know that in 30 days after that decision. If you are not a citizen or a permanent legal resident when your baby is born. That baby is stateless and you'll find out when you want to enroll them in school. It's the antithesis of what the 14th Amendment was trying to do.

[Riley Herbst]

Okay, boy, riley Herbst from 2311 Racing here. And you know what grinds my gears? Waiting for coffee. But instead of counting frappes and lattes, I fire up Chumba Casino. No apps, no fuss, just fun social casino games to pass the time. By the time my coffee's ready, I've already taken a few victory laps. Next time you're stuck waiting, make it entertaining. Play for [e-mail] let's Chumba Sponsored by Chumba Casino.

[Ryan Seacrest]

No purchase necessary. VGW Group void where prohibited by law. 21 + terms and conditions apply.

[Al Franken]

With a five dollar meal deal with.

[Ryan Seacrest]

New McValue, you pick a McDouble or a McChicken.

[Al Franken]

Then get a small fry, a small drink and a four piece McNuggets. That's a lot of McDonald's for not a lot of money.

[Ryan Seacrest]

Prices and Participation may vary. McDouble meal, $6 in some markets for a limited time only.

[Al Franken]

Okay, let's move on to some other terrible decision that the court mustered. Mahmoud. Is that what v. Taylor?

[Dahlia Lithwick]

Yep.

[Al Franken]

This was again a six. Three ruling conservative justices decide whether the group of parents who were seeking to withdraw their children from public school lessons featuring LGBTQ themed storybooks. These are books to be like read during story time or something. And it was very innocent. Like Mark Joseph Stern, who's your co host very often was so angry about this and deservedly so. These parents said, I don't want my kids having to listen to this. And so we're going to opt out when if the teacher's going to read this, my kid has to leave. And if there's no way to enforce that, I mean if that happens, the school will go like, okay, then we won't read the books.

[Dahlia Lithwick]

Right, Right. No, I mean essentially you had a group of parents saying that they had a religious liberty interest in protecting children. And you're almost being too gentle, Al. Like these are like sweet little storybooks.

[Al Franken]

Alito Alito wrote the decision.

[Dahlia Lithwick]

Yeah. And he appended like you know, photographs of these, like of the book books, you know, as though they're, I mean you're. The way he writes, you're expecting to see some like, you know, bulgy eyed, indoctrinated, going on they're just like very sweet books.

[Al Franken]

Like Uncle Bobby's Wedding, which is a niece of Uncle Bobby, is a little worried about this. He's getting married to another man, and she's worried about it. But then she learns that they're really nice and. Yeah, it's great.

[Dahlia Lithwick]

It's great. Also what she's worried about is that he's not going to pay attention to her. Not that he's marrying another man. Like, it's it that these are like indoctrination tools. But these families dissented, and the court really, like, it sounds almost trivial, but it cuts to. And again, the dissent gets at this. The very nature of what public education is, right? Public education is you get exposed to a lot of stuff that your parents might not love.

[Al Franken]

There are people who don't believe in evolution. Can they do the same thing on books?

[Dahlia Lithwick]

That or interracial marriage. I mean, I think people forget that when Loving versus Virginia was decided. Right. The case that finally allowed interracial marriage, the. The lower court opinion in that case was rooted in religion. You know, that God wanted the religions to stay pure. So there are lots and lots and lots of religions that object to lots and lots and lots of things. And the idea that they will dictate not just that their kid can't be exposed to that book in school, but that, as you say, because it's prohibitive for the school board to fight lawsuits.

[Al Franken]

So Alito put pictures in to show how awful the book was or something.

[Dahlia Lithwick]

Pages and pages, as though, you know, it is like trying to indoctrinate children into these horrible lifestyles. And you're exactly right. I mean, parents object to lots and lots and lots of things. And if everybody gets a veto on what books are going to be, kids are going to be exposed to, and if schools are going to have to say, dude, I'm not going to fight this. We're just not going to put any books on the shelf other than the dictionary, which I don't know if anyone has a religious objection to it yet, then it really cuts out the heart of how you think about public education. And again, this is a long theme that you and I have talked about a lot over the years. It gives a kind of heckler's veto to religious parents who then decide the curriculum for everyone. Right. And this has been one of the kind of signature plays of the Roberts court, But here it really kind of blossoms into its own madness because it really is. A handful of dissenting parents have just decided that, you know, every single schoolroom in the state, you know, is going to decide we can't afford to have these books on the shelves. So, I don't know. It's a heartbreaker. And I think Mark Stern, my co host, was, you know, most upset because he really read that opinion as rooted in what he called bigotry and animus and hate.

[Al Franken]

Yep. Well, that sounds like Alito. What other great decisions? Well, how about Scumetti? Is that it?

[Dahlia Lithwick]

Yeah.

[Al Franken]

United States versus Skremetti. Now Scrametti is taking which side?

[Dahlia Lithwick]

Taking Scormetti was a challenge to. A whole bunch of states have passed bans on parents consenting to gender affirming care for their minor children. So this is not surgery.

[Al Franken]

This is hormones, hormone treatments, puberty blockers.

[Dahlia Lithwick]

Right. This kind of goes against a long line of many, many long lines of cases. Chief among them, ironically, we just had the conversation about Mahm. Chief among them, the parents get to decide for their children what their health care is going to be. It's not the prerogative of the state to make those decisions. So this completely, like, you put this back against, back against the LGBTQ books case we just talked about, and it's like, okay, so parents can decide that no child in the classroom can read a book, but parents can't decide to give their kid hormone treatments.

[Al Franken]

And a puberty blocker only works before puberty sets in or while it's setting in. So the puberty blocker, this is a kid who has decided that they were born, you know, with the identity of being a girl and they want to be a boy or vice versa. And this is a child who's about to go through puberty unless they block it. And so they. And I think this started in the Netherlands or something like that. And this has been. They've been doing this for a long time.

[Dahlia Lithwick]

Right, Right. And this, this is the medical consensus across the boards is that this is safe and this is the best thing to do, and this is the best way to sort of like, arrest gender dysphoria and all the really dangerous outcomes of kids who get deeply depressed. And ironically, if your boy wants to take treatments to make him more masculine. Right. That's permissible. So you can't do it in order. Right. To. Because you feel as though your gender identity isn't aligned with how you present. But you can take these treatments if you want to be, you know, if you're a boy and you want to be more masculine. And so this is clearly discrimination on the basis of sex. Right. Because you're permitting the treatment for people in one category, not the other. And the court just says no. And it's a really heartbreaking opinion in no small part because I think we saw this after Dobbs. That Dobbs turned into not just open season on abortion care across the country. We knew that was coming but, but open season on trans Americans. And we just saw a massive uptick in really, really punitive, you know, very, very, very vicious legal initiative initiatives against trans people and trans kids. And it is hard to read this case and see it being cabined to just the care here.

[Al Franken]

Well, there are a number of states that do this right that have the same policy.

[Dahlia Lithwick]

And more will. More will after this.

[Ryan Seacrest]

Oh boy, it is Ryan here and I have a question for you. What do you do when you win? Like are you a fist pumper, a woohooer, a hand clapper, a high fiver? If you want to hone in on those winning moves, check out Chumba Casino. Choose from hundreds of social casino style games for your chance to redeem serious cash prizes. There are new game releases weekly plus free daily bonuses. So don't wait. Start having the most Fun [e-mail] no.

[Unknown]

Purchase necessary VGW Group void We're prohibited by law 21/ terms and conditions apply.

[Al Franken]

Any other horrible decisions or anything good? Any other good decisions?

[Dahlia Lithwick]

There was not much that was good. I think the good surprise was that they held over the case that was going to end what's left of the Voting Rights act, the Louisiana case, and they didn't decide that. They ordered it to be re argued, re briefed and re argued next fall.

[Al Franken]

That could be bad news though.

[Dahlia Lithwick]

Yes, exactly.

[Al Franken]

They could end voting rights.

[Dahlia Lithwick]

Yes. It could be just like go big or go home. And I think they decided to go home and go big on this next year.

[Al Franken]

What's that case?

[Dahlia Lithwick]

The case is essentially, it's been going on in a whole bunch of different iterations, but it just essentially has to do with these redistricting cases that they keep doing where they create new districts so that they can effectuate the Voting Rights Act. And now we have a suit challenging the existence of majority black districts. So I think what we're going to get from the court is whatever vestiges of the Voting Rights act sort of remained after the line of cases, you know, from Shelby county and then its progeny I think are going to go away. But I also think it's interesting to me that the court didn't decide it. I think they didn't decide it because they want to do A bigger version of it. But I also think that the court. It might signal there's a charitable version, which is that it signals that the court knew it had done enough and that it would just be too much to do this one thing more.

[Al Franken]

That one thing more would be, what would a bigger decision in this be?

[Dahlia Lithwick]

Well, I think that would be just that there's no. No more Voting Rights Act. You just can't bring a lawsuit under the Voting Rights act, you know, whatever. Like the. The sort of crown jewel of civil rights, you know, voting protection is gone.

[Al Franken]

That would be amazing.

[Dahlia Lithwick]

Yeah, I mean, I think it's coming. I. I think, you know, that is the bad news. I think the court has been chipping away at it. I also think if you look at it as of a piece with the courts that allow gerrymandering.

[Al Franken]

I mean, Roberts going to Roberts, I mean, he basically undermined gerrymandering or enabled it. Right.

[Dahlia Lithwick]

He came of age very much, like, as a young Justice Department lawyer and as a clerk to Justice. Then Chief Justice Rehnquist came of age wanting to do away with the kinds of voter protections that protected minority votes. Like, this has been his dream for many, many decades.

[Al Franken]

And Roberts opened the way for Citizens United. And I mean, he was Chief justice then.

[Dahlia Lithwick]

I think it's fair to say that between. And by the way, another case that the court just agreed to hear would also take out a big chunk of what's left of campaign finance reform. So I think he's.

[Al Franken]

What's that one? What's that one?

[Dahlia Lithwick]

Just National Republican Senatorial Committee at all. Petitioners v. Federal Election Commission. That's the case.

[Al Franken]

So it sounds. It sounds bad on this.

[Dahlia Lithwick]

It's a little ominous.

[Al Franken]

Yeah. And how would it. Do, you know what the case is? How would it undermine the whole Voting Rights Act? Would it be end the Voting Rights Act?

[Dahlia Lithwick]

It will allow even more donors to give even more money directly to the parties and to coordinate their spending with the candidates. And the challenge is that, again, surprise, surprise, campaign donations are free speech. So it's more of the same. It's the thing that gave us. Elon Musk will give us more.

[Al Franken]

Well, it's hard to believe that you can give more than Elon Musk gave.

[Dahlia Lithwick]

I mean, cool, $277 million. But yes, I think it's the. You know, more money in politics will only make things better.

[Al Franken]

Jesus Christ.

[Dahlia Lithwick]

Yes, indeed.

[Al Franken]

Okay, so the bad news of this cycle is in this term is the end of the bad news is that the next term could be worse.

[Dahlia Lithwick]

Yeah. And Taking up trans athletes. They just agreed to take up trans athletes. I mean, I think if I had to say what the bad news will be, I think it will be where you started, Al, which is just shadow docket decisions in case after case, and just a climate of an imperial presidency and an imperial court. That's it. Those are the only two players. And Congress is. I don't know what it is.

[Al Franken]

It's sidelined itself. So.

[Dahlia Lithwick]

Yeah. And also the court has sidelined it. Right. Like, don't forget, you know, the TikTok ban is still supposed to be the law, and the court decided that, and it's still not the law. So I think that, you know, we. We are seeing a court. I feel like I say this sentence to you every year in July, but, like, we have seen a court that has arrogated unto itself the power to decide everything, and now it has taken away power from, you know, last year, you know, federal agencies, the heads of federal agencies, away power from district court judges. So it's court, you know, the epa. Yeah. The court is just the big boss of us. And they have decided, or at least six of the nine of them have decided in their infinite wisdom, that Donald Trump. I don't know. I guess this is the question that I wanted to ask you. Do they know, which is scary, that Donald Trump is a creeping authoritarian, or they just don't know and they have no idea what they're doing? And I don't know the answer to that. Like, I don't even know what's scarier, to be totally ignorant about it and to write, like, these very lawyerly decisions, like the one we got in birthright citizenship, as though this is a civil procedure class, or to be, like, totally aware of what he's trying to do and what he has done and how kind of slyly and cunningly he's done it and to be fine with it. And I don't know which is worse. I can't even decide.

[Al Franken]

Well, I think the latter is both true and worse. Or maybe not.

[Dahlia Lithwick]

And that's why I like you, Al, because you answer the hard questions.

[Al Franken]

Yeah. Okay. Well, I'm glad I was able to do that for you. Oh, my God.

[Dahlia Lithwick]

It's truer and worser. I think you're right.

[Al Franken]

Oh, my God.

[Dahlia Lithwick]

Oh, my God.

[Al Franken]

Well, we'll see what happens on the Shadow docket.

[Dahlia Lithwick]

We will see. But it's coming soon to a theater near you. That's.

[Al Franken]

Well, thanks for doing this.

[Dahlia Lithwick]

Always a pleasure.

[Al Franken]

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

[Dahlia Lithwick]

Foreign.

[Ryan Seacrest]

And I was on a flight the other day playing one of my favorite social spin slot games on jumbacasino.com I looked over the person sitting next to me and you know what they were doing? They were also playing Jumba Casino. Everybody's loving having fun with it. Jumba Casino is home to hundreds of casino style games that you can play for free, anytime, anywhere. So sign up [e-mail] to claim your free welcome bonus. That's chumbacasino.com and live the Chumba Life.

[Unknown]

Sponsored by Chumba Casino. No purchase necessary. VGW Group Void where prohibited by law 21/ terms and conditions apply.