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What If I Don’t Believe in the Supreme Court? A Conversation with Dahlia Lithwick
01:03:34
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- [00:00]
Dahlia Lithwick
The court has no actual power. It is by design, right? It is the weakest branch of government. Go back and read the Federalist Papers, my friends. It has neither the purse nor the sword. It has no army. It has nothing except public reliance upon the court as an institution that does its job. The power in hearsay, not in nine justices who don't have an army and don't have a purse. The power inheres in the sovereign citizens. Who can choose to say that court is vast? Or who can choose to say we are vast?
- [00:51]
Lee McGowan
Hello and welcome to the Politics Girl podcast. Hi, I'm your host, Lee McGowan. Let's get into it. This year's Supreme Court term saw decisions on cases related to birthright citizenship and nationwide injunctions, religious freedom in education, transgender rights and gender affirming care, gun violence, and the executive branch's apparent authority to do whatever it damn well pleases at all times. To discuss how the SCOTUS term played out this year, I am joined by my friend and brilliant legal scholar, Dahlia Lithwick. Dalia is a senior editor at Slate who has been writing about the Supreme Court and jurisprudence for over 20 years. Dalia is also the host of Amicus, the award winning podcast about the law and the Supreme Court, and her work has appeared everywhere from the New Yorker to the New Republic. A visiting professor at multiple universities, Dalia is a graduate of Stanford and Yale, has won a litany of journalism awards, and is the author of numerous books including Lady Women, the Law and the Battle to Save America. So without further ado, please welcome my guest, award winning journalist, bestselling author, and one of the nation's foremost legal commentators, Dalia Lithwick. Welcome back, Dalia.
- [01:55]
Dahlia Lithwick
Hello, friend. Hi. Hello, friend.
- [01:59]
Lee McGowan
This is so depressing. Dalia, you know I love having you here, right? Oh, I know. You know I love talking about the courts with you. I love having you here. And like I had you here last year when the court term ended and we discussed how these rulings just kept telling people in in America that some people were worth more than others, that some people got a different version of the law or a more beneficial reading of the law. And I feel like a year later it might be even worse. I mean, what do you think? Where do you think America stands right now when it comes to the highest court in the land?
- [02:30]
Dahlia Lithwick
So I think I want to say two things. As crap as it can be when it comes to the highest court of the land. Like, I'm not going to mince words and we'll talk about it. But I want to start by saying, if you had told me in January that the district courts, that the lower courts, that Bush appointees and Reagan appointees and Donald Trump appointees and across the boards, you would have lower court judges in case after case after case saying no to this president, I would have been more surprised than I actually, I have been astonished at the yeoman's work that the district courts or the lower federal courts and the appeals courts have been doing. And so that's kind of the good news, right, that people including, I mean, in some of these cases, seriously, people Donald Trump put on the bench who were rated unqualified to be judges, who have stepped up and really done superb work knocking back, you know, not just, I know we're gonna talk about birthright citizenship, but like impoundment and refusal to give aid to foreign countries that are in need of aid. And, you know, time after time after time, we have seen phenomenal work from lower court judges. And I want to give them like a big honking gold star because they're doing it in the face of threats of impeachment, direct threats from the President. We've seen a spectacular increase in death threats. Right. Doxing pizza, creepy pizza deliveries to judges houses. So they have every reason to be like, eh, you know, I didn't get into it for this. They've been astonishing. That said, the buck stops at the Supreme Court. And the Supreme Court has been in ways that have equally astonished me. Appalling.
- [04:21]
Lee McGowan
Yeah, it feels like the Supreme Court every term deals with now just a bunch of these blockbuster decisions that just change the very fabric of the country. You know, like couple years ago we were here talking about the overturning of Roe. Then the year after that, we were talking about the president is above the law. And now we're at this point where, where it's like, yeah, I guess the executive branch is able to gut every single federal institution if they want to. You know, like, it's just year after year from this court of game changing rulings, and it's exhausting to watch. And it is wonderful to hear you say, like, look, you have all these lower court appointees who you wouldn't necessarily think are in the corner of fairness or justice, depending on who they were put into office by. And yet they're standing up for the law, they're standing up for the Constitution, they're standing up for the people and our rights under a constitutional republic. And that is a wonderful surprise. And it's what they should do. But it's also A wonderful surprise. And yet still, this 6, 3 court right is just, just allowing chaos to reign, and it's a hard thing to stomach.
- [05:26]
Dahlia Lithwick
The other thing that I would just say that's really dramatic is, you know, you and I, as you say, we've had this conversation lots of times, but what's different this year is that the court's doing it in a really nefarious way. And so I want to be super clear that there's like a regular docket, which is what I think of as, like, front stage. Right? These are the cases that the court hears. And by the way, this year, they heard fewer than they have heard in certainly my entire career since the Civil War. Right. Like, they barely, they don't even hear 70 cases anymore. That's what's called the merits docket. Right. And those are the cases that are briefed and they're argued and the court issues an opinion. Right? There's a ruling, there's a decision. That is the term that ended at the end of June with the blockbuster birthright citizenship case. Right? But then there's this other docket called the shadow docket, and that's not a name that I made up. It's a name that is used for the court's emergency docket. And so if folks are listening to us right now and they're like, wait, Dalia, you just said the term ended the last week of June with birthright citizenship. Why am I still still hearing news almost every day about something coming out of the Supreme Court? Well, that's because they're using what's called the shadow docket, their emergency docket that they used to use for death penalty cases. Right. You need an emergency docket, but you don't use it 20 times. You know, we, we've now seen time after time after time after time. Every time the Trump administration loses a case, they race it up to the shadow docket, to the emergency docket, and then you end up with decisions. And I know we're going to talk about this in a minute. Like the one that came a week ago, right, on Monday, where the court essentially agreed to turn the lights off at the Department of Education. And they did it with a ruling that is unsigned, that is unexplained. It's a couple of sentences. Don't actually know which justices participated. They don't say. We have three dissenters, so we know who didn't participate, and we can kind of gas. But the fact that what is happening front stage is not even as bad as what's happening Backstage, in the shadows, without explication, without the justices doing the one job they have, which is show their work, explain their reasoning, that's what's changed. And so what I want to say is it's really tempting to listen to the story the court wants us to hear. Right. And that's a story about a term that starts on the first Monday of October and ends at the end of June. And then the justices go off to Aspen and give their speeches and we can all rest. That's not this term. This term has been as explosive behind the scenes with decisions, as I've said many times, that are like back of the napkin decisions. Just saying, okay, here's what we're overturning. Okay, Trump gets to do this. Okay. Okay, Trump gets to do that without any explanation or any reasoning. And when the court is working in the shadows, like it's doing right now, it's not just like you say, that. It's a 6 to 3 conservative, supermajority Trump court. It's the court that is issuing decisions that essentially just say, because we say so. And that is the stuff of nightmares.
- [08:56]
Lee McGowan
Yeah, I think that's incredibly well said. I think that it's not surprising that it's happening this term because now Trump is in charge. Right. So, like, who's gonna stop them if they're not gonna stop him? Right. Like there's. It's sort of like a snaking its own tail situation. But you also have to say, like, this is not how these decisions are supposed to be made. We're supposed to have a merits docket. You know, the shadow docket is for emergencies only. But it's sort of the same way Trump is working the executive branch. We're not supposed to make laws based on executive orders. It's supposed to go through Congress because they represent the people. And now we're having, like, executive order after executive order of executive order making laws, which is not how we're supposed to make laws. And then it is the Supreme Court that's backing up those executive orders. So again, we're in a snake eating the tail situation. And you were mentioning it. I feel like one of the most talked about decisions and victory for the Trump administration this year was when that six person conservative majority ruled on this birthright citizenship case. And we want to be clear, it's not really that they were ruling on birthright citizenship per se, but the limited ability of federal courts to issue universal injunctions that block executive orders nationwide. That's really what they ended up ruling on. And this was a big one, because it meant that the lower courts, the ones you're saying are actually upholding the law, could no longer rule something was unconstitutional and then expand that to the rest of the country. In this case, they were saying, you know, you're not necessarily a citizen if you were born here. And that should be like, well, yes, you are. And that applies to the whole country based on the Constitution and the way the Supreme Court ruled. They basically said in this case, in every single district, you would have to file your own lawsuit and prove your own case, even when the fact of the issue is it's like, obviously deeply unconstitutional, should just apply to the whole country. We shouldn't have to have millions of different lawsuits. But that's already being challenged, right? Like, so that. That's a good thing. It's already being challenged in a lower court. Can you talk a little bit about that? Yeah.
- [10:56]
Dahlia Lithwick
I mean, I think the two important stories to tell about that birthright citizenship case are the one you just told, which is exactly right. This comes to the court. Having gone through multiple lower courts, multiple appeals court, Trump has lost at every turn. Section 1 of the 14th Amendment is abundantly clear that if you were born in the United States, you are a citizen. This was done, right, by the Reconstruction Congress to make sure there was nobody whose citizenship turned on what state they were brought in. Right. This was to reverse the evils of slavery. And it's very clear we know why they did it. And this was, by the way, codified into statute multiple times. This is the law of the land. And Trump, as you say, first day in office, signs an executive order just sort of whiting out like, oh, what they really mean is, unless you are the child of a legal citizen or a legal permanent resident, it doesn't matter if your parents are here on a valid visa, doesn't matter why they're here. You're not a citizen. So doing away with, you know, post Civil War, absolute understanding codified, as I said, in statutes and in case law that the court has never touched. Right. So you're right. It's a fanciful, insane thing. And Trump loses and loses and loses and loses, and it gets to the Supreme Court. And instead of saying to the Supreme Court, we want you to decide the meaning of Section 1 of the 14th Amendment, does it mean what Trump says? They don't even raise that issue. They just say, we're just going to, like, put that aside for a minute and instead ask you to rule on universal injunctions. And you're exactly right about this, too, universal injunctions have been around for a very long time. It is a way for a judge to give what's called an equitable remedy, just like basic fairness, in which they say, no, this isn't just unconstitutional in Maryland or in New Jersey or California, it is unconstitutional as applied to everyone in the entire country. And you're exactly right about one other thing. This was an issue when Matthew Kaczmarek in Amarillo, Texas, right, issued an injunction saying that mifepristone has to be taken off the market. So this has been a problem for presidents of both parties, going back quite some time, where you have somebody just say, nope, this is unconstitutional everywhere. And folks will recall this was used to stymie a whole bunch of President Biden's initiatives, right? So we could have a separate conversation about whether a single judge in a single district can make law for the whole country. But here's the kicker. The court had the opportunity not once but twice to answer that question and say, oh, universal injunctions are really wrong and judges shouldn't be able to make law around the country. When Biden raised the issue, when the, when the lower courts enjoined his student debt relief policy, and what they did was they said, no, we're not going to touch that issue. That's not, that's not an exigent, burning issue. And so what we have, in a sense, when the court hands down this six to three kind of chin stroking opinion authored by Amy Coney Barrett on the last day of the term is we have a court that suddenly is on fire to solve a problem they didn't even think was a problem a year ago, right? They had an opportunity to solve this problem. Not only did they not, they, they didn't touch it, but they didn't touch it multiple times. And so if you look in the dictionary under cynicism, this is what you find. And it is a court that is consistently using doctrines, right, that were nowhere in evidence when the Biden administration said, hey, you know, nobody has standing to bring this challenge. And then the court's like, oh, well, let's think about, you know, the student debt relief for, for months and months and let it not go effect. And here they're like, oh, that's fine, let's get rid of it all together. And so I think what you really have to do is look at this. And this is of a piece with a huge trend from the court, which is when Biden did something, it violated the major questions doctrine, right? It violated some rule or another. The theory of executive power as applied to President Biden by these six justices, is unrecognizable today when, if Trump asks them to do something, and as I said, time after time, they do it on an emergency docket without explaining A, that they're likely to win, that's a standard that they have to meet, or B, that they're going to suffer irreparable harm if this isn't resolved in their favor. Another standard, they don't do any of that. They're just like, the president's super sad that he can't take away citizenship from millions of babies. So they win. And so I think that I put this in the sort of bucket of what was good for the goose is not good for the gander. And this court is inventing reasons to continuously put a thumb on the scale.
- [15:58]
Lee McGowan
For Donald J. Trump, which is exactly what many of those people were put there to do. And I think we can see that quite clearly now. I mean, when this came down with the universal injunction thing, I thought, geez, where are the Second Amendment warriors on this one? I would think that they would be horrified by this because let's say this government said, I'm going to take all automatic weapons, all guns, I'm going to take all guns in America. And people were like, well, no, that's my Second Amendment right. And you're like, okay, well, every single person in every single district in America is going to have to have their own court case. And like, they might say it's legal in Texas, but in California, they might say it's not. Like, without universal injunctions, every single amendment in our Constitution that people take for granted is technically up for debate. And I find that so bizarre. Am I right in that?
- [16:46]
Dahlia Lithwick
In thinking that that's the dissent? The dissent, Justice Sotomayor, dissenting in birthright citizenship gives exactly the hypo you just gave and is like, what's to stop the next president from simply, you know, redlining through the Second Amendment whatever they don't like? And then there's no way that a court can say, no, this is unconstitutional everywhere. And more pointedly, you know, the thing that the court did, I said, this is a cynical play. They said, you know, there's other ways, right, to get relief. And in fact, the word that Justice Barrett used was complete relief. The thing that they flagged, this goes to the second half of your question, was you can just create a class action, right? There's another way to do this. We don't have to have universal injunctions. Just go ahead and bring A class action. This is the same U.S. supreme Court that has for decades now been making it harder and harder and harder for a judge to certify a class to bring a class action suit. And this is a really kind of stellar, cynical Roberts court play, which is, oh, we're going to shut the door on this, but you can do this other thing. But by the way, the other thing we've either made it impossible to do or we're going to make it impossible to do. So a couple years ago, you and I talked about how the court was like doing away with Section 4 of the Voting Rights act, but they were really clear. You still got section of the Voting Rights Act. Don't worry, you can effectuate your rights using section two. And now Section two is just about gone. So be really aware of the court sort of breezily saying, oh, well, you know, when the founding happened, there weren't universal injunctions. And so, you know, in, in the 18th century courts of Chancery, you know, judges couldn't do them, so we're just getting rid of them. But don't you worry, you know, people will be able to get relief through a class action. It's really hard to do. But the other point you made, and this is worth saying, is just at the end of two weeks ago, we had a judge who said, fine, I'm certifying a nationwide class. So he essentially was like, okay, Justice Barrett, if you say we're going to do this, we can't do this with a universal injunction. We have to do it with the class. I am telling you that every single baby born in the United States to non citizen parents or parents who are not legal residents are now in this class. And so you're exactly right that we're seeing in district courts accept the invitation, cynical though it may be, and force the court to kind of put its money where its mouth is.
- [19:18]
Lee McGowan
Yeah, and that's exactly what this judge in New Hampshire has done, which I think is pretty fascinating. And it's also, again, to your original point about these, these lower court justices actually standing up for the Constitution and the rule of law, because if people don't know, legal groups immediately started looking for the workaround because as you're saying, the Supreme Court was like, oh no, there's a way you can do it. You just need to do it like this. And they were like, fine, we'll do it like that. And so they started looking for it. And this judge in New Hampshire just issued another preliminary injunction blocking this idea of the birthright citizenship, not counting executive order as a class action lawsuit for every child born in the United States. I think it's after the executive order denying birthright citizenship was signed. So it's like a really specific group of people. But he's done it specifically following the instructions as outlined by Amy Coney Barrett and Brett Kavanaugh in their majority opinion. So. So he's essentially said, I've done it exactly as you said. So when this gets back to you, which it obviously will, you're gonna have a hard time denying that you wrote this in the first place. And I feel like that kind of gives us the idea that we might end up with five of nine justices agreeing with themselves in many ways. You get the three liberal justices and then the two that wrote the opinion in the first place. And I feel like it's exactly what Justice Alito was concerned about because he wrote a little concurrence to the majority opinion that was like, oh, here's the thing. I don't love that there's this loophole for class action lawsuits. I feel like people might take advantage of that, and they are, which they should. But I feel like this is what Justice Alito was worried about. 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- [24:05]
Dahlia Lithwick
I mean, I think that you can read Justice Barrett's opinion to suggest that she wanted to Be clear. I think she's very, very, very hard to parse in this opinion because she wants to do two things at once. She both wants to say, as an originalist, I'm telling you, you know, the framers didn't contemplate this kind of relief. And at the same time, she's clearly not foreclosing the possibility that this can come back to the court. And I want to be super clear on one other thing. I don' or five votes even at this broken John Robert Supreme Court to do away with birthright citizenship. In other words, it was very clear listening to oral arguments. And you're right, they never got to the question of whether the 14th Amendment means what it says it means. And everyone's always understood it to mean.
- [24:55]
Lee McGowan
Well, good luck as originalists trying to argue that.
- [24:57]
Dahlia Lithwick
Exactly. Although don't forget, one year ago the court said, right. That the insurrection insurrection clause that said, if you have fomented an insurrection, you can be removed from office. And the court, this is the court that said, oh, no, as originalists, those words don't mean exactly what they explicitly were said to mean.
- [25:17]
Lee McGowan
But that goes back to the thing you were saying about, like, the rules just don't apply to Trump. If Biden had asked for that, it would have applied to him. You know, I think that's the thing. I think that's the reason so many of us are losing our minds right now, right? Like, it's just, like it just feels so, so grossly unfair and a misuse of the law and a skewing of the law. And like, the thing that's weighing on my mind right now is the kind of unitary executive theory, this thing you were talking about that happened last week, where the president has sort of full control over every government institution and agency and can kind of do whatever he wants with them. And this is how you see Doge gutting our agencies and basically the shuttering of USAID and the gutting of the State Department and the NIH and the CDC and the FDA and the EPA and, and you and I, you know, we're talking right now, but like, last week, the Supreme Court put out that unsigned order you were talking about that allowed them to fire basically everyone they wanted at the Department of Education. So they can't really close the Department of Education, which they wanted to do, because it was created by Congress, so it has to be closed by Congress. But they can fire everyone in it. They can cut all their funding so it doesn't work. Right. And just like firings at the state Department it deeply affects how the institution itself functions. So they're basically breaking it and then being like, oh, look, it's broken. And like, that's allowed by our Supreme Court.
- [26:38]
Dahlia Lithwick
That's right. And again, I would say, like, compare that in your mind to the same Supreme Court that wouldn't let President Biden student debt relief go into effect. Right. Sat on it forever and then was like, oh, no, no. The idea that this is an emergency is, you know, when it wasn't an emergency the last time the court dealt with. And then it was a major question, right. That was not fitting for the President to do without sign off. And here it's like, oh, this isn't a major question. But I, I under that, I think there's two things. One is let's, I think, be super crystal clear, birthright citizenship happens on the merits docket, right? It, there's an argument the Solicitor General argues in front of the court, the court issues an opinion. It might be an obscure opinion. It might be a, like, snot out your nose, funny opinion by Justice Barrett, but at least we have some sense of guidance. And as you say, we then have a judge in New Hampshire say, okay, this means what it says it means I'm going to create a nationwide class. What happened with the Department of Education was not that. Right? That's the term ends. The justices are supposed to be gone. I guess they're having like, zoom meetings and they just issue this, this unsigned opinion that says what just happened at the Department of Education, which is just the wholesale firing of about half of the employees, is fine. We're not telling you why, we're not giving you reasons. This was never briefed. The court just is doing it because they can. And I just want to emphasize how dangerous and lawless that is from an institution that has to explain its reasons, not just to the public for legitimacy reasons, but to lower courts so that they know what to do in the future in similar situations with similar facts, patterns. There's no explanation. They're just gone. And now it's up to the rest of us to figure it out. But the thing that you're saying that is really essential is that it was abundantly clear. Donald Trump ran on ending the Department of education. Linda McMahon was brought in, right, to put herself out of a job. She was absolutely clear that what she was going to do was turn out the lights and lock the doors and throw away the key that was a part of Project 2025. And the Defense that the Trump administration offers when they fire half the Staff whose job is to implement the congressional will in having a Department of Education. And their answer is, oh, we're not ending the department, we're just streamlining it. So this is that Doge answer, right? We're making it more efficient. And you have affidavit after affidavit in this case saying they're not making it more efficient, they're making it impossible for millions and millions and millions of dollars that are already allocated to do a whole bunch of really essential programs, including civil rights protections of students, including all sorts of special needs assistance for kids with special needs, including all sorts of language education. Those people are all gone. And probably by the time folks hear this podcast, the rest of them may be gone. And so the absolute fiction that this is about streamlining as opposed to ending the department is the really, really chilling thing. And in this sense, it maps perfectly onto the conversation we just had about birthright citizenship. Right, because the court doesn't decide, but in not deciding, it is a fait accompli, right across the country. If birthright citizenship can go into effect in some states and not into others. Right. You're a baby born in New Jersey, you're a citizen, you're a baby born in Pennsylvania, you're not. If that is allowed to go into effect, we've done away with birthright citizenship without the court ever touching the issue. And that's what's happening here, too. The court, by not deciding, we're not telling us the reason, has just put a thumb on the scale for ending the Department of Education, and none of us knows why.
- [30:47]
Lee McGowan
Yeah, and I think so many people, I mean, look at this is happening in the summer when kids are not in school, when people are not paying attention, when they're sort of busy with other things. And I think a lot of people are going to be so blindsided by these cuts, and not just from K through 12 schools, but like you're saying, you know, special needs funding, Title 9 protections, you know, student loans. You know, I. I'm personally freaking out because I have a child who's supposed to go to college next year. But these cuts might deeply affect any money you can get to have your kid go to college. So I'm not even sure at this exact moment if my kid can go to college now. He's worked his whole life to go to college, and I'm like, the schools he's looking at, we can't afford that. Like, we could. There's no way. No one should. By the way, colleges have become so extraordinarily expensive, but we were like, with financial aid, we can do. But if they get rid of financial aid, which is part of what the Department of Education did, then it's gonna put people in such dire straits. I mean, the court has basically given Trump and his administration just carte blanche to gut the government. And I think we should keep in mind that the conservative movement has always talked about making government so small you could drown it in a bathtub. Right? And that's obviously what they're doing with all of these agencies, from the Department of Education to the EPA to the cdc, like nih, whatever. But they're also, at the same time supersizing our government when it comes to things like ice, right? Like, we're like 20 times in the amount of unmarked, you know, agents that can go out in the street and rip people out of their homes. So it's the weirdest sort of juxtaposition because there's no logic to it. It's just cruelty, destruction, and it's totally rubber stamped by these people that are supposed to be the final arbiters on what is right, what is constitutional, what our founding fathers originated in their founding documents. They've always had an agenda. This court, this has always been an activist court, no matter what we say. And this 6 to 3 conservative majority that we see all the time, they're clearly putting your thumb on the scale, as you're saying, for what they already had as their agenda, what they were trained in the Federalist Society to look for, what they were put on the bench to do. And I think about all the wins they had for, quote, unquote, religious freedom. This year, the biggest decision I'm thinking of is children can be withdrawn from LGBTQ school material. Parents can now opt out of certain curriculums based on religious grounds if they don't want their children to learn about anything that has to do with the LGBTQ issue, despite the disruption that might count to the school learning environment, to civil rights, to anything like that. It's these religious elements that keep coming back up, and I feel like the people were there to represent money and to represent religion. Am I off base in thinking that?
- [33:26]
Dahlia Lithwick
You're not at all off base. And I would just say it's almost impossible not to think of the case you just described. That's Mahmoud v. Taylor, where you've got religious parents who say, I don't want my kid to be exposed to these LGBTQ books in school. Right? They're children's books. The sweetest, most anodyne children books like they can't be on the shelf like the Penguin book. Yeah, Heckler's Veto. You know, again, the dissent in that case was like, this is public education. The absolute crown jewel of the American democratic experiment is public education, where you are exposed to ideas that you don't necessarily agree with. That is how you create a tolerant, pluralistic, diverse democracy. Right. That respects everyone. And this is part of dismantling that. As you say, it's not an accident. You know, Ronald Reagan also wanted to destroy the Department of Education. It's not an accident that they keep putting people in charge of departments that don't believe in the department. So whether it's McMahon now or Betsy DeVos before, they don't believe in public education. And much more pointedly, and I think this is what you're really trying to drive home is that to give any parent a religious Heckler's Vita. And let's be very clear about what's going to happen, right? Schools are going to take every book off the shelves that might possibly offend someone's religious views. Right. Schools are not going to invite lawsuits. They're not going to wait to have crushing, debilitating lawsuits by parents.
- [35:08]
Lee McGowan
Well, especially if they have no money in the Department of Education to fight any lawsuits.
- [35:12]
Dahlia Lithwick
Exactly. The coffers are empty. And now they're going to take those books off the shelves, and what you are going to see is parents who have religion just objections to interracial marriage. Right. Parents who have. Don't forget Loving vs. Virginia, the case that allowed interracial marriage. The district court opinion in that case was written by a judge who said, this is what God wants. God doesn't want the races to mix. So I think we should not fool ourselves that this ends with LGBTQ books. This is any book that offends any parents, religious values can be yanked from the shelves. And this is anathema to the idea that we want kids to go to school and be exposed to all sorts of ideas, chief among them, tolerance. And the only other wrinkle that is really worth pulling at is that this term. The court also said in a case called Skremetti, that parents do not have the right to give their children who are suffering from gender dysphoria, puberty blockers, and other drugs that might help alleviate that. In other words, if you are a trans minor and your parents and your doctor say that it is absolutely necessary for you to get those treatments in order to avoid just crippling, crippling unhappiness as you move through the world, parents don't have a right to do that. The state can countermand that. So like parents rights when it's about your religion, if the religion is one that is shared by or respected by the court, and no parents rights when it is the fundamental question that has been protected in this country for over 100 years, which is directing your kids medical care, that's gone.
- [37:03]
Lee McGowan
Yeah.
- [37:03]
Dahlia Lithwick
The same parents who didn't want their kids to wear masks. Right. They get to drive policy for the whole school board. But parents who want their kids to be able to move through the world in the gender that conforms with their sense of who they are, those parents have no rights. So I think again, it goes to this theme. We keep pulling at the same theme over and over again. These are not universal rules. There's not even attempt to say let's find some congruence between what we did in this case and this case, it's simply that religious parents can absolutely assert that there will be no books that offend their religion on the classroom shelves. And parents who are seeking medical treatment that is approved by every medical association in the country. No, they can't have that.
- [37:56]
Lee McGowan
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- [41:13]
Dahlia Lithwick
And parents who are seeking medical treatment that is approved by every medical association in the country. No, they can't have that.
- [41:24]
Lee McGowan
Yeah, well I think it comes back to the same idea that we keep coming back to over and over again, no matter what we're talking about whether it's birthright citizenship, whether it's taking away naturalized citizen citizenship, whether it's who the court listens to. It's that some Americans matter and some Americans don't matter. Some voices count more than other voices, and they keep telling us it over and over again in every single kind of decision. You know, who can I pick up off the street and throw into a concentration camp right now? It's this group of people, right? Who do I listen to when it comes to which books come off the shelf? Who do I listen to when it's which parents actually matter in this case? Like, I was gonna ask you what you think of some of the other big cases from this year, but it's like, you know, my first one was medical providers stopping puberty blockers and hormone therapy from these poor transgender minors, Right? But there's so many other cases that happened this year. But I feel like the same thing keeps coming up, and it's who matters, who counts, who is an American whose voice has weight in the room. And you were talking about, like, you know, this has been happening since Reagan was in office. And I'm like, yeah, because it's the same. The Heritage foundation, they have been writing policy and trying to get their sort of far right Christian plans into policy since the 80s. They were there getting their stuff done when Reagan was in power, and they've got so much farther along with Project 2025 now. And I just. I think the whole thing is that when you look at it, it just feels so discouraging. It just is like another attack after another attack. And it's hard not to feel like the structure of the country is falling apart around us. You know, this sort of faith we had in the three branches of government, and they were all checks on each other. It feels like, well, Congress has completely abdicated its responsibility at all. They'll just be a rubber stamp for whatever Donald Trump wants with Republicans both in the House and the Senate. And then the court itself has decided they are, I don't know, standard bearers or whatever, the Trump administration. And by that, I don't think that it's really Trump themselves that they're supporting, but the Heritage foundation people. And it just feels like, geez, like, is anyone noticing this? And then I think about someone like Justice Ketanji Brown Jackson out there sort of on her own, and I go, well, at least she gets it right. Like, I read what she writes, and it feels like she's speaking the truth in a way that makes me feel like I'm not going crazy because here's the Supreme Court justice herself acknowledging how off the radar her court has become. And at least it makes me feel less insane. What are your thoughts on Ketanji Brown Jackson?
- [43:58]
Dahlia Lithwick
I mean, I think I wanna start by saying it is very interesting to me that the three liberal justices, and let's just say it, all of them women, are reacting in very, very different ways to this kind of juggernaut, this sixth justice juggernaut. And, you know, I don't play favorites. I mean, I think they're all doing really different things. I think that Justice Elena Kagan is an. And she really deeply believes to the marrow of her bones that her job is to decide the case in front of her. Like, that is the job. And, you know, doing, you know, a TED Talk on the side about the end of democracy when it's not appropriate, it's not appropriate. She won't do it. Justice Sotomayor has been not nearly as fierce as Justice Jackson, but Justice Sotomayor has been including in the education case. We just talked about the Department of Education, you know, firing half the staff. She's been, like, on fire and has been writing some pretty spicy and uncharacteristically for her spicy dissents, often making some of these claims about, look, you know, in the birthright citizenship case, she was like, why is the court playing the game that, you know, this is legit and that Trump is a normal president? So she's willing to call it out. But you're exactly right. Justice Jackson is willing to go way beyond them. And sometimes she writes for herself alone. In the birthright citizenship case, you know, everybody signed on. All three of them signed on to Justice Sotomayor's dissent. But Justice Jackson wrote for herself alone, and nobody signed on. Because what she is saying is the thing that you are articulating, which is nothing is all right about this. I am seeing patterns. And I had Senator Sheldon Whitehouse from Rhode island on my podcast last week, and I loved how he put it. He said, you know, you can continue to look at every case in isolation like a law professor, and be like, well, you know, maybe there were no universal injunctions at the time of the founding, and you can make a plausible case that Amy Coney Barrett's kind of civil procedure exam case, writing of the case in CASA in the Birthright citizenship is plausible on its face. But what he said is judges are trained to do one thing, which is see patterns. You know, nobody says, hey, I'm discriminating against all black voters, right? Or I'm only giving jobs to white employees. This is the nature of the justice system, is you see patterns across, you know, similar cases, and you see patterns across time. And everything you and I have said in this conversation is about patterns, right? Attacks on education, giving a huge hand up to religious dissenters, but only of some religions, right? Suppressing the vote, allowing big money to distort democracy. These are the patterns of the Roberts court. And all Justice Jackson is doing, says Senator Whitehouse and I thought it was so interesting, is calling out patterns and saying, these are the kind of people who win all the time. These are the kinds of cases that keep weirdly popping up on the shadow docket. These are the kinds of things that we're doing that is sending democracy through a wood chipper. And so I think you're exactly right. I mean, the way I've been thinking about it is, and you and I have had this conversation, I know, several, several times, is that she doesn't look at American constitutional democracy as though it's perfect or even close to perfected. She's like, hey, it was an imperfect system that for all the reasons you and I talk about, you know, gerrymandering and a malaportion, Senate and money in politics right after Citizens United States, it's never been a perfected democracy, and I choose not to see it as that. And so I think that what she's doing a tiny bit is code switching between the world that she grew up in, which is, if you were a black woman in Tennessee long before Dobbs, you had no right to an abortion. Right? If you were a voter in Georgia and you were black long before the court started trashing, you know, the Voting Rights act or putting other impediments in the way, you know, requiring ID to vote, vote long before that, it was impossible to vote. Not like it was for. So what she's essentially saying is like, these two worlds have always existed side by side. A world in which there's a fantasy that you have perfect justice, and a world in which we never even got all that close, but we're trying. And what she's doing, I think, right now, is code switching and saying, I see this. I see what happens when you. You send brown people to seekot prison in El Salvador without giving them due process. I know what happens when you send a bunch of people to Sudan, a country where no American is safe, and you don't give them any kind of ability to say, hey, under the torture statutes, you can't send me there. This is not unfamiliar to Her.
- [49:06]
Lee McGowan
Right.
- [49:06]
Dahlia Lithwick
And so what I think she's doing, I love the language you used is like, if you feel like you're going crazy, I think she is writing from that. That place of, like, you are not going crazy, because I see what you see. And I think that there is this kind of existential question for the court about her talking this way. You know, she gave a speech where she was like, I lie awake at night and I worry about the future of democracy. And I think that there is this really hard question to which I actually don't know that I have the answer, which is, is she saving the court, or is she burning it down? And, you know, I don't know, but I think that for her to be writing and speaking the way she is right now and saying, I see patterns. I see who wins on the shadow docket every time I see that the Trump administration lies in the lower court and then is rewarded by this court. What she's trying to tell you is that the patterns you and I have been describing in this conversation are as visible to her as they are to you and me.
- [50:09]
Lee McGowan
Yeah. Like, I don't think she's necessarily writing for herself. I always think she's writing to bypass the legal wonks. Right. She's writing for the public. She's talking to the people who aren't lawyers and judges. She's telling us it's not wrong to question our faith in the court. There was a balls and strikes article that came out about her recently, which is like a legal paper for people who are, you know, in the legal world. And they basically said, and maybe most importantly, Justice Ketanji Brown Jackson is urging people to be skeptical of the story the Court loves to tell about itself, that its task of, you know, interpreting the law is not political, because that has always been wrong, and it's always had politics tied into it. Like, they are not above politics. They have actually always been entrenched in politics. And she's the first person to come this close to is saying it out loud. And I feel like that's super important. Like, I've read a bunch of opinion pieces about her that basically are like, she's either the DEI hire if you read that opinion piece, or she's the conscience of the Supreme Court. Right. And I'm on the conscience side because it seems like she's the only one who is just saying what needs to be said, no matter the tradition or what other justices say or what other, you know, years would have dictated. And I feel like that's so essential. Like, I think about the court out here saying, yeah, go ahead, destroy, you know, all our federal agencies. It was basically like, like a two page paper that they threw out there. Like, yeah, go ahead, fire whoever you want. And she wrote like a 15 page dissent on that, that tiny, that little sort of throwaway they did that allows it. And she said the balls and strikes writer put it, well, he said it came as close as a Supreme Court justice will ever get to characterizing their colleagues as breathtakingly full of shit. And I thought that was so well said because I was like, we need that, otherwise we're gonna be like, well, what can we do? Because I mean, when you were here last year, you said this idea that there's nothing we can do about this horribly corrupt Supreme Court is wrong. Like, that's bullshit. If you get cancer, you don't just say, well, well, I have cancer. Like, I guess that's what happens. And I guess this is what, you know. No, you fight it, right? You go to the experts, you find a way to get the best outcome possible. And that's what we have to do with our courts. We can't just allow these people to burn down 250 years of self rule without any pushback, right? And now we had that conversation last year before the election when we totally blew it, but we have handed the keys to this castle over to like, this narcissistic sociopath and the puppet masters that run him. So are you still feeling hopeful or should we all just, you know, pitch ourselves off a cliff?
- [52:56]
Dahlia Lithwick
I love that question. This is one of the reasons I love coming on your show is like you, I feel like we can talk about, you know, the footnotes of the dissents in these opinions until the cows come home. And it doesn't change the kind of learned helplessness which is, oh, well, there's nothing we can do. And the reason I love the way you just put that is that, and I probably said this on your show last year, the court has no actual power. It is by design, right? It is the weakest branch of government. Go back and read the Federalist Papers, my friends. It has neither the purse nor the sword. It has no army. It has nothing except public reliance upon the court as an institution that does its job right, with like, integrity and with dignity and with honesty. And so when we get in this weird posture which is like, well, you know, the emperor has no clothes and has no actual power, but instead of saying that, we're just going to be like, oh, we couldn't expand the court Right. We couldn't change the court. We couldn't do structural court reform. Right. We had a lot of years in which we were having conversations, including you and I having conversations about we need to add seats to the court. We need to have age limits. We need to have. Right. Every other constitutional court in the world has either term limits or age limits or jurisdiction limits or. Right.
- [54:31]
Lee McGowan
Ethics rules.
- [54:32]
Dahlia Lithwick
Ethics rules. And right around the time you and I talked last year, you will appreciate I interviewed former Justice Rosalie Abella from the Canadian Supreme Court, who is a legend. And the show that we had was so crazy because she was like, no other court would ever have no guard. And the Canadian Supreme Court, she was like, you know why I'm not in the court? Because we have age limits. You know why, like, people don't do what. What Alito and Thomas do? Because there's ethics rules. So, like, this is a choice. We have made a choice to say we are helpless. And a. We are not helpless. There are things to be done, and for all the people who are like, well, Dalia, we can't do them now. I just want to really sort of upend the paradigm because I always say, and I've probably said it on your show, our job right now is to be a little bit bigger than we are. Our job right now is to be. You know, I always joke when you're camping at Yellowstone park and they put up the sign that's like, if you see a brown bear, be bigger than you are. And you're always like, dude, I can't be bigger than I am. Like, the laws of physics militating. There you go. Look at. Look at you.
- [55:41]
Lee McGowan
This is me being bigger than I am.
- [55:42]
Dahlia Lithwick
You are. Exactly. Our job right now is to be bigger than we are. And you know what the court is trying to do right now? The court is trying to be bigger than it is. A court that hands down a three sentence shadow docket decision that doesn't explain itself but just says, we're the boss of you, is a court that has no actual power but is trying to be bigger than it is. And by the way, Donald Trump, who is trying to be bigger than he is, right, he doesn't have the power to change the law by way of executive order. He can't scupper what Congress has put into effect and say, I'm just gonna. I'm just gonna end the Department of Education. He doesn't have the power to do that. So the court is conferring upon itself and upon this president the power to be bigger. Than they are. And so what I want to say is we can choose to say, oh, those. That court is huge. That court is the all powerful. Oz. This president is huge. He is the all powerful, you know, executive maximalist, like unitary executive of all time. There's nothing we can do. But, you know, who actually is sovereign? Not them. Not them. You being a big bear, like, being bigger than you are. And so I really think, just to link it back both to what Justice Jackson is doing and what you're asking is, I think this is a really good moment to say what Jackson is saying is, I'm going to be bigger than I am. I am one of nine justices. I am one of three dissenters. I'm just losing all the time. But I am not going to just kind of like, mince off into the night and be sad at home. I am going to be huge because that is the power I have. And what she's saying is that the. This court is actually behaving in ways that are very small. And so we have to make choices, and they're huge structural choices about democracy and about gerrymandering and about how voting is going to work. And all those things are work, and they are a lifetime of work. I'm not going to, like, lie and say this is fixed in the next election or the election after.
- [57:52]
Lee McGowan
Nope.
- [57:53]
Dahlia Lithwick
We are big enough to do this. We've done it before. You know who's not big enough to be vast and capacious and unassailable? The US Supreme Court. And that's what Jackson is reminding us, and that's what we need to understand. The power in here's not in nine justices who don't have an army and don't have a purse. The power in here's in the sovereign citizens. Who can choose to say that court is vast or who can choose to say. Say we are vast.
- [58:26]
Lee McGowan
Dahlia, that's amazing.
- [58:28]
Dahlia Lithwick
Yes, ma'.
- [58:29]
Lee McGowan
Am. Thank you so much for that. I mean, listen, if people are thinking like, but what do we do? I want you to know, like, let me remind you, Supreme Court justices can be impeached. They can be impeached. That's not an easy fix. But we should have already done it with two of them that are taking bribes. I should remind people that Congress can fix a lot of these interpretations that they have done through legislation. Congress can change a lot of the executive orders by making legislation that just negates it. The next president, if it wasn't, you know, a Donald Trump acolyte or someone that was following the Heritage Foundation's playbook could get rid of every executive order Donald Trump ever signed. That's why we don't make laws by executive orders. We could protect the women's right to bodily autonomy. We could protect the Voting Rights Act. We could sign the for the People's act and the John Lewis Voting Rights act, which already exists. The majority of damage, damage these activist right wing justices have done can be reversed by a Democratic controlled Congress and a Democratic president and then by expanding the court and stop pretending that they're not broken, because they are. And we have to look at it differently and we have to say, you know what, if anything, the Democrats should be running on fixing the courts. That should be a huge thing that they run on. So don't act like we are helpless. We're not. It sucks. It's terrible. They are very scary right now. But it does not mean that we have to get ourselves smaller like you're saying. We must just get bigger. I want to thank you so much for joining us today, Dalia. I love you. Thank you for being so smart and helping us understand all this. Please tell people how they can follow your work moving forward because you add so much to the conversation.
- [60:00]
Dahlia Lithwick
I write about the courts and the law at Slate and I'm a contributor at msnbc and my podcast is called Amicus. And a lot of the stuff you and I have talked about today, I've really been thinking about in real time in the last couple of weeks on the show. I mean, we are very, very, very vulnerable on the show about how immense the structural problems are and also about how, like, we can't. I know you get these letters, too. We cannot get letters from people saying, I give up or I'm just gonna, like, take care of my parochial interests and make sure my kids are okay. Because, like, I, I'm tempted to do the same thing. But I always say, like, every time you do that, Stephen Miller gets new wings. Like, we are not in the business of giving up. And, and so I just really, it's one of the reasons I always love to talk to you, I think, again, particularly as women, you know, in a moment where it just feels like we're being sidelined and diminished and, like, replaced with, like, weird, you know, Barbie, Barbie, Homeland Security people that, you know, we are unbelievably powerful and that, like, I think we have to just understand that this is going to be, you know, for your kids and for my kids and for everyone's kids, like, this is the work of a generation. But, like, no ability, I think to desist. So I'm so grateful for you and what you do every single day. It's extraordinary. So thank you for having me.
- [61:31]
Lee McGowan
Thank you for coming. The feeling is entirely mutual. So that was Dahlia Lithwick reminding us that our job right now is to be bigger than we are, that we are big enough to fight back because we have done it before. The court itself has no real power, not of the purse or the sword. Their power is derived fundamentally from our belief in their power. So even if it comes to a corrupt administration supported by a corrupted Supreme Court, we cannot default to helplessness. They are not the all powerful. Oz, just like Trump himself is not some all powerful king. We are living in dangerous and lawless times, but we cannot allow these people to keep telling us who counts, who matters, and who is an American. Because we all count and we all matter and the American public have to flex our power at all times. I want to thank Dalia for joining us today and you for caring enough about democracy to be here. Now go download amicus for a weekly gift of Dalia's insight on the courts. Because the more we know, the better prepared we are to change what's wrong. Until next week, pgm. Before you go, are you interested in getting this podcast ad free delivered directly to your inbox along with my kitchen rants? Then please consider becoming a member of Politics Girl Premium by going to politicsgirl.com and signing up. If you are already a premium member of this podcast, thank you so much for your support. And if you're not a member, please consider becoming a patron of my work. Mainstream news is only giving you some version of billionaire backed propaganda at this point, so if you really want real knowledge, it's essential to support those of us out here still bringing it to you. There is a link to sign up in the bio of this episode, but also on politicsgirl.com and as always, please like and share this podcast so we can grow our audience because the more people who have access to this kind of information the better. As always, thank you for your time and support. The Politics Girl Podcast is written and performed by me, Lee McGowan and produced and edited by Happy Warrior Entertainment. All rights reserved.