The Term the Court Stopped Pretending

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This is Amicus Slate's podcast about the courts, the law, and the Supreme Court. I'm Dahlia Lithwick. And I'm Mark Joseph Stern. The court has just torn all of these really important federal statutes down. And so we're entering the midterms this fall in a really dangerous place. It is absolutely stunning and horrifying in its scope, in its hubris, in its destructiveness, and in the catastrophic and outrageous way that it countermans the work of extraordinary people. who had come together when this country was at its most broken to figure out what was the constitutional infrastructure needed to stitch it back together. That, to me, is what makes this term different from the immunity term or the Dobbs-Bruin term or other catastrophic terms of the last 15, 20 years. It's almost like they don't think they have to try to convince anyone anymore that there are principles behind these decisions. And what it comes down to is... John Roberts likes the Fed, and John Roberts does not like the Federal Trade Commission. That's it. Welcome to our annual end of Supreme Court term all-star roundtable. That we also call the breakfast table. Real amicus heads know why we call it that. And if anyone in our live online audience knows why, pop your answer in the chat now. So we can explain all at the end of this episode. Let's jump right in and introduce our panelists. Sherilyn Eiffel is a civil rights lawyer and founding director of the 14th Amendment Center for Law and Democracy at the Howard University School of Law. From 2013 to 2022, Sherilyn served as the president and director counsel of the NAACP Legal Defense and Educational Fund Incorporated, LDF, the nation's premier civil rights law organization fighting for racial justice and equality. Welcome, Sherilyn. Thank you. Nicholas Bowie is the Louis de Brandeis Professor of Law at Harvard Law School. He is a historian who teaches courses in federal constitutional law, state constitutional law, and local government law. His research focuses on critical legal histories of democracy in the United States. With Daphna Rennon, he is the author of the forthcoming book, Supremacy, How Rule by the Court, replaced government by the people, which will come out in September. Welcome to the podcast, Nico. Thanks for having me. Stephen Vladick is a professor of law at the Georgetown University Law Center and is a nationally recognized expert on the federal courts, the Supreme Court, National Security Law, and Military Justice. Steve is author of the New York Times bestselling book, The Shadow Docket, How the Supreme Court uses stealth rulings to amass power and undermine the republic. And he also writes an indispensable newsletter. One first, welcome, Steve. Thanks for having me. So.

I think I want to start by suggesting that I've heard a lot of pundits saying that this is the worst term since the immunity decision. Some say it's the worst term since Dobbs. I've heard folks say this is the worst term since Dred Scott. And I actually don't even know how one measures worst. termness, but I'm pretty sure that the announcement in the birthright citizenship case on the very last day blunted some of the impacts of how really serious this term was. So I want to put aside the case that shockingly upheld a core constitutional guarantee by a five to four vote and ask each of you, maybe we'll start with you, Sherilyn, how bad was this past term in the aggregate? Plenty bad. This was very bad. And I think it's important, you know, I actually don't leave out the birthright citizenship case. Because to understand how bad this term was, you can't just count up the decisions. You have to also look at the how, how the court decided these cases. You know, what was the split if there was a split? And what were the, I can't think of the word, the license that the court. took to get to the decisions that they made. And actually, that's what, to me, kind of takes this term really off into the stratosphere. Some of the decisions are catastrophic and terrible. But much of the reasoning of even the decisions that seem to be okay demonstrate that this court has separated itself from any sense of the need for consistency for respecting stare decisis. for judicial restraint, for discipline, for unanimity, all of the things that we think of as virtues of judicial decision-making that would cabin judges from being able to exercise the kind of extraordinary power that they do in an abusive way. How about you, Niko? Yeah, I agree with Charlene that in order to understand how bad this term was, we need to have a sense of like what should the Supreme Court be doing in the first place. And the book that I've written with my colleague Daffner-Anon, called Supremacy, goes through the history of the court's power as well as what did people think of it, from abolitionists through the civil rights movement and to the present. And we drew a lot of inspiration from the Congresses that wrote the 13th, 14th, and 15th amendments after the Civil War. And one of their arguments at the time was that the role of the Supreme Court. is to enforce federal law. It is not to defy federal law. The people who wrote the 14th Amendment wanted federal courts to go out and enforce that amendment against states or... presidents or anyone else who would defy it, but they did not want the court itself interrupting or striking down Congress's legislation. And I think that that understanding, that the point of the federal judiciary is to enforce Congress's understanding of what the Constitution means.

is a good way of understanding the cases this term. It actually maps on pretty cleanly because a lot of the cases that, you know, people really like that the court has done involves the court enforcing federal legislation. So. The learning resources decision, end of last year, that enforced the federal law governing tariffs and said it did not permit the president unilaterally to impose tariffs on the entire planet. The National Guard statute that the court interpreted to say the president can't just deploy the National Guard where he sees fit, as well as the birthright citizenship case, which, you know, Congress for years has interpreted the 14th Amendment to say everyone born here basically is a citizen. And when President Trump said no, he was not just defying the 14th Amendment, he was also acting in defiance of these federal laws. But the real damage that the court has done this year involves the court taking federal legislation and just saying, I don't care. So the Voting Rights Act, the most important civil rights statute in U.S. history. The court's saying, even though we understand what Congress meant by that statute, we're just going to interpret it differently and say it can't be interpreted the way Congress thinks. So now we have this crazy system where states are passing laws trying to make it as difficult as possible to vote. And Congress has said, don't do that, but the court's acting as if that statute doesn't exist. Same with statutes protecting federal officials from being fired, statutes that prevent people from just spending billions of dollars in elections. The court has just torn all of these really important federal statutes down. And so we're entering the midterms this fall in a really dangerous place where all of these laws Congress has passed to protect democracy, laws that Congress has thought was constitutional, laws that date, you know, hundreds of years. All of these laws are just now sitting in the library stacks as if they don't exist because five or six justices this term said they don't like them. And the constitutional interpretation that the court is applying is not consistent, it's not objective. It's really policy-driven. And that's the real danger of judicial supremacy that this court has really unleashed this term. Steve, anything to add? Just really quickly. I mean, I think the common themes in what both Nico and Sherilyn said, first, you know, denominators matter. And so for all of the folks out there on the right and who try to defend the court who say, well, look at birthright citizenship, look at terrorists, look at the National Guard case, you know, that's three in a term in which, you know, I can count 25, 30, 35 rulings that I think were deeply problematic from a institutionalist perspective from the perspective Nico mentioned. So, you know, one, let's do basic statistics again. But two, to pick up on Nico's last point, there's a shamelessness.

to how the court behaved this term that, you know, I'm sure lots of folks sort of thought they felt in prior terms, but that, you know, almost like they weren't even trying to persuade people who weren't already persuaded anymore. And, you know, the best example of that to me is the sort of complete lack of humility in Chief John Roberts' opinion in the slaughter case about just how big of a whole the cook. case handed down at the exact same moment blows in the slaughter case. So in Slaughter, the court says the president has to have all of the executive power, period, full stop, end of story. Therefore, he can fire everybody. And at the exact same moment, the court says, oh, but the Federal Reserve is different for all of these interesting and questionable, dubious historical reasons. You don't have to be a law professor to understand the logical. tension there, and yet John Roberts really didn't try very hard to persuade anyone that that was a reasonable distinction. So you multiply that, right? One other flashpoint, just to sort of show where we are, the Texas redistricting case, which got sort of run over by Calais and Alabama, the court writes five paragraphs in November or December to justify freezing a Trump-appointed district judge's 200-page decision about why Texas had acted with, you know, racially discriminatory intent in how it redrew its maps last summer. And the Supreme Court, first of all, sort of pauses that with five paragraphs, only two of which were analysis. And then on the merits in April says, oh, well, now that we have the full case before us, we're just going to summarily reverse the district court for the reason set forth in our, you know, five-paragraph scribble. in December. Like, it's the hubris of this. It's the shamelessness of this. And, you know, it's not the bottom lines. It's really just sort of the behavior of the justices after Clay rushing to put all those decisions into immediate effect. That to me is what makes this term different from the immunity term or the Dobbs-Bruin term or other catastrophic terms of the last 15, 20 years because it's almost like they don't think they have to try to. convince anyone anymore that there are principles behind these decisions. So let's Start with the intangibles and then work our way down to the actual stakes on the ground. Absolutely foundational restructuring again this year of how the government works. Shrinking of congressional authority, as Nico pointed out, sanding down judicial review, disempowering blue states while letting red states go hog wild, aggrandizing the executive, diminishing the regulatory state, disempowering lower courts. I could go on. We will go on in the course of this conversation. But Steve, just to stick with you for a moment, what sort of. leaps out here that you might want to flag as a top line takeaway? I mean, it's all about judicial power and not just judicial power in general, but the Supreme Court's power in particular. I mean, right, you have the court in the same series of rulings, seizing power for itself while undermining federal district courts. Federal district courts, who, by the way, are on the front lines, right, of an unprecedented flood of really high stakes, really important, really messy cases where you have judges from across the ideological spectrum pushing back against this administration.

And the Supreme Court's like, no, we're good. You know, I know it's very easy for folks to sort of say, no, it's all about executive power. But again, I'm going to beat this horse a couple times today. You know, Slaughter and Cook is actually the perfect embodiment of how it's not about executive power. It's about the Supreme Court's authority for executive power, where, hey, we'll give the executive branch all this power it's never, never had before, but we'll also say, not so fast with the Federal Reserve. So, Mark, to me, it's the power dynamic here. As you say, disempower and Congress, disempowering lower courts, empowering the executive, but only as sort of the only branch that's left, but really preserving for the court. And there's one other sort of really small example of this. This case got totally run over by everything that's happened since. But the court had this really technical case in the fall about standing to challenge election rules, a case called boss. And the court just makes up a new rule that says, oh, um, If you're a candidate for office, you automatically have standing to challenge how the votes are counted, even if, like, you are, you know, a right-in candidate who got 27 votes in a 10 million vote election, right? Like, why? Mark, to empower the courts, to give courts the ability and the Supreme Court in particular the ability to do what it wants when it wants. And I think this is the real overarching theme here, which is this is a court that just doesn't care. It's not looking over its shoulder. It can do what it wants. You know, Leah Lippman's right. Yolo really is, I think, the court that only lives once and doesn't seem to mind that, you know, others will try to live after it. This was also just a remarkable term for either rewriting or racing or just calling time on the reconstruction amendments. And I'm thinking specifically about Calais and Milligan this term, but following on from the affirmative action decision a few years back. We've moved to this new era, this quote unquote, colorblind era. And this was decided along purely ideological lines by a Republican appointed supermajority that includes, let's just say, at a stolen seat on an unelected court. And I wonder, Sherilyn, if you can kind of pan back and describe what the court's decisions declaring America to be. Blind to race now and blind to racism now entailed and what the implications are. Yeah, I actually think that Calais and Ellen versus Milligan are at the same time an assault on the reconstruction amendments and on our entire system of litigation and law. Some of it in the ways that Steve has already described, right, taking power unto themselves. But let's think about what they did. First of all, this court has taken upon itself the power and authority to say what the reconstruction amendments mean and to say whether and how, if at all, they have continuing relevance to the landscape.

of this country. And they started doing that already in Shelby County versus Holder, right? When they decided that the South has changed, these are not empirical findings, right? This is the sense they have the hunch. And we see them doing it in Calais and Milligan as well. They're saying once again that, you know, racism is not what it was. The South has changed. Black voters have a chance to elect representatives of choice. Party seems to be just as important as race. All of these things are not findings. And when you're reading Samuel Alito's decision in Calais and he, you know, is cited. their musings in earlier cases, sometimes dissents, just about like what they feel. So the first thing, and I want to emphasize this because we talked about district courts and we talked about Congress, taking the power actually away from us, from litigators. from those who bring these challenges in court. The reason why, and you know this, Dahlia, I've always emphasized the importance of district court judges is because particularly when you're bringing cases on behalf of disfavored clients, you're bringing claims that most of the judges that you're bringing them before know absolutely nothing about. And you have to actually present to them this world in which these kinds of things can happen, in which on a job a supervisor can call a black man boy and think that it's fine, right? in which, you know, legislators can meet in a room and decide that they're going to carve out this many black voters to make this district less viable for black voters to be able to elect a candidate of choice. You have to convince them of that. And how do you convince some of that with just, you know, being earnest and passionate? No, if you were bringing a claim under the Voting Rights Act, you have a historical expert, you have... Usually two political scientists, experts, one of whom has done a pretty serious regression analysis of elections to determine that voting is racially polarized. And you've got a demographer who has looked over the maps and who has determined that black voters would have a chance to elect the candidate of choice in a fairly drawn district. So you put all of that together, then you put the witnesses on who are my clients, right? The people from the communities that we represent who tell the story about how power operates, about what they saw, about what they learned, about their effort. to elect candidates of their choice. You may put candidates on who were unable to get elected and so on and so forth. Because the Voting Rights Act, in accordance with the test that is included in the Senate report, but also reiterated in the court's cases, is that you're doing a searching practical evaluation of the local, political, social, and cultural reality in that community. That's actually what is required. So that's what you're putting on. You know, this is what you're taking weeks out of your life to present before a district court. And then the district court is taking weeks out of his or her schedule to make a determination about whether you met the mark. And so when we say that this court is taking power away from the district courts, they're also taking power away from the concept of the litigation system, which is designed to educate the judge about something they don't know or the jury about something they don't know.

And they're taking that away from us because they have a feeling that racism is not. the same as it was. They have a feeling that Asian Americans may be discriminated against in race conscious admissions. They have a feeling that the South has changed. They have a feeling that we're punishing the South. All of these are hunches that they are bringing to the table for the world that they want. I want to make sure we just like center that because we're about to be obsolete. There's no point in litigating these cases if the Supreme Court's just going to, on their own hunch, decide all the stuff that you took all the effort to prove. And I say this as a civil rights lawyer. We never have any money. So we're paying. We got to pay the experts. We got to, you know, we got to pay for transcripts, depositions, all that stuff for it to just, as you all said, evaporate into thin air because of the court's own feeling. Not because our opponents put on a case with better facts. That's not what they're relying on. They're relying on their own feelings. So that's one. Two, the piece about Congress is really important because These three amendments, the 13th, 14th and 15th amendments, the 13th Amendment abolishing slavery, the 14th Amendment ensuring birthright citizenship and equal protection of laws and creating a complex system to try and tamp down and cabin the forces of insurrection that they recognized exist in this country. The 15th Amendment saying that you cannot abridge the right to vote based on race, color, or previous condition of servitude, you know, have clauses in them that are designed to focus on who has the power. to actually enforce these amendments. There are enforcement clauses that says Congress shall have the power in the 14th and 15th Amendment to enforce, right, the rights that are guaranteed in these provisions. So it doesn't get more explicit than that, right? In a constitutional amendment, we're saying, who has the power? And the Supreme Court has arrogated to themselves the power to decide what that actually means because Congress did it. And so. Calais and Milligan are really important because they involved the amendments to Section 2 of the Voting Rights Act that was amended in 1982. It was amended in 1982 in response to a Supreme Court decision that erroneously interpreted the Voting Rights Act and Section 2 of the Voting Rights Act. So in 1980 in Mobile v. Bolden, the Supreme Court said you have to prove intentional discrimination. And this had not been the lay of the land in terms of litigating Section 2 cases until Mobile versus Bolden. And so civil rights activists came together and presented to Congress this effort. And Nico knows how Herculean this effort was to amend the Voting Rights Act, which actually happened, once again, overwhelmingly bipartisan, signed by President Reagan. Now President Reagan didn't want to sign it. And he didn't want to sign it because he had lawyers like Ed Meese and young lawyers in the Department of Justice, the point person being John Roberts. telling him that this was an absolute usurpation of power, that this could not go forward, that this was a quota system.

And all of the internal emails are there in which John Roberts is just saying we have to stop this. Even after the House votes overwhelmingly for it on a bipartisan basis, John Roberts is undaunted in his efforts to kill these 1980 amendments. But he can't do it. And so we get this amendment to the Voting Rights Act. The Voting Rights Act is a statute. Congress can amend their own statute. They can tell you, no, we meant this when we passed it, not that. And that's what they do when they amend the Voting Rights Act. And then... To just put a cherry on it, of course, that amendment is challenged. And when it gets to the Supreme Court, the Supreme Court upholds the amendment in Thornburg v. Jingles in 1986 and really sets out the test that I was describing earlier that you used to litigate these cases. I started as a voting rights lawyer in 1988, not knowing what I was doing, but I had the guidance, right, of these tests. And I had at my back a recent amendment, right, to the Act and the Supreme Court affirming, right, the constitutionality of that amendment. So that's how these cases have been litigated since 1982 and 1986. And now we come to the court and they tell you that they are updating. You know, it's like when you see a person, a woman or a man who's had like a radical facelift and they say, oh, I just did some tweaks. You know, just freshened up, right? They said, we're just updating the formula. They create a whole new formula. They rewrite it. They rewrite what Congress did. They essentially strike down the 1982 amendments and they strike down their own precedent in Thornburg v. Jingles. And to make matters worse, to go back to Steve's point about the shamelessness, they say explicitly, we're not striking down Thornberg versus Jingles. We're not striking down the 1982 amendments. We're just updating them. We're tweaking them. This is what Jingles really meant. It is this just outrageous conduct and behavior in which they not only arrogate to themselves the power but shamelessly tell you and gaslight you, you don't see what you see. And the last thing I'll just say is that what they create out of these two cases, because in Allen v. Milligan, you add an actual finding of intentional discrimination, is that they also imperil the ability to bring successfully these claims under the 14th Amendment. They announced that our Constitution is colorblind, which they had announced in the affirmative action case, which is absolutely untrue. There is nothing colorblind about our Constitution, not just about... the Reconstruction Amendments, but from the beginning, right? We've got a three-fifths clause that counts enslaved people as three-fifths of a person. We have the clause in Article 1 that continues the participation in the international slave trade until 1808. Like we've got all kinds of things in the Constitution that are not colorblind. But when you get to the Reconstruction amendments, they are meeting for the express purpose of incorporating 4 million black people as full citizens into the body politic and to destroy the caste system in this country. That's the purpose. That's not colorblind.

But they announce it anyway, our colorblind constitution. And what they mean by that is you can't remedy racial discrimination. Because if you find racial discrimination and then in remedying it, you even think about race as part of that calculation. You think about maybe creating measures on an employment site where there's been discrimination that will increase the number of minorities or women who are hired or who are promoted. then you've thought about race and that's disqualified. And if in creating districts you discover a racial gerrymander and you seek to correct that racial gerrymander and by doing so, you are trying to do what the Voting Rights Act said you had to prove, which is show that black voters can constitute the majority of a fairly drawn district, then you are thinking about rates and that makes you the racist and you are now violating the 14th Amendment. It is stunning. It is absolutely stunning and horrifying in its scope, in its hubris, in its destructiveness, and in the catastrophic and outrageous way that it countermans the work of extraordinary people who had come together when this country was at its most broken to figure out what was the constitutional infrastructure needed to stitch it back together. Not one of these people on this Supreme Court are worthy of overcoming that project. Let's pause to hear from some of our sponsors. This episode is presented by Planned Parenthood Federation of America. Many of the most important legal fights in this country come down to a basic question. Who gets to make decisions about our bodies and our health care? That question isn't theoretical. It's playing out right now. The Trump administration's backers in Congress are trying to permanently defund Planned Parenthood, an effort to shut down health centers and block patients' care, especially from those with low incomes. Together, we have the power to protect and expand affordable care. Visit plannedparenthood.org slash defend and make a gift today. This episode is brought to you by Ground News. Here at Amicus, we read a lot about the Supreme Court, but it's not the only news we consume. And like you, we seek out different sources on the same subject to get the full story. Ground news is a great way to get down to the facts. It's an app and website that makes it easy to compare news sources break free from algorithms and think critically about where you're getting your news. Recently, I went to Ground News to learn more about the resignation of British Prime Minister Keir Starmer. Ground News had rounded up coverage from 40 different sources. According to the platform, 46% of the coverage is center or nonpartisan. But if you click right, you can see right-leaning coverage that claims, quote, And if you click left, you'll see headlines lamenting that Keir Starmer is, quote, the latest casualty of the Downing Street meat grinder. The Nobel Peace Center called Ground News, quote, an excellent way to stay informed, avoid echo chambers, and expand your worldview.

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Let's return now to our end-of-term panel discussion. I want to pick up on that theme of hubris because one of the main sort of lowlights of this term was the court's embrace of the unitary executive and rejection of Congress's conception of how the federal government is meant to be structured. So last week's show, we talked all about the ways that the majority butcher history in Trump v. Slaughter. Steve talked about how Trumpy Slaughter doesn't make sense when held up right next to Trump E. Cook. And the court has just handed Trump all of this power, you know, that the framers never could have imagined with this one. one glaring exception. But, you know, I've noticed over the last two weeks or so we hear a lot of claims that this is actually a fairly modest courts, that this is not a court that overturns precedent all that often and that this is a court that strives to respect Congress's prerogatives. And I hear from defenders of the court, oh, if you have a problem with these decisions, just go to Congress and tell Congress to fix it. Nico, maybe you can sort of walk us through why that response is so naive, if not willfully ignorant of what the court is actually up. to here because I think as Sherilyn and Steve have shown us, the major moves that the court has taken with a few exceptions are all about disempowering Congress, which is supposed to be in the driver's seat of the Reconstruction amendments and in structuring the executive branch and so much else and saying, no, we're the ones who get to decide. And surprise, they always decide they want more power for Donald Trump. Yeah. So. I think one thing I would just add on to what Steve and Sherilyn said, which I totally agree with, is that this judicial supremacy that the court is displaying here, the hubris, the inconsistency, and the sense that, you know, the court has this final say that no one can disagree with is not new or unique to the John Roberts Court. It's longstanding. And it goes back to when the 14th Amendment was written in the first place. So... The authors of the 14th Amendment in 1866 were mainly Republicans. They were part of the first generation of the Republican Party. They founded their party to end the spread of slavery. And in 1857, The Supreme Court said, you can't do that. The Constitution will not allow you to ban the spread of slavery in federal territory. So when Congress was writing the 14th Amendment, as Cheryl Lynn said, they wrote into that amendment. It's up to Congress to enforce this thing, in part because a lot of them were very skeptical of the court's interpretation of the Constitution. thought if you will give the court free reign, they're just going to override us. And that generation of Congress passed the first voting rights acts, the first civil rights acts. And what the court did to those was strike them down as soon as it could and said, among other things, the 15th Amendment.

In the 14th Amendment, they don't prohibit all discrimination. They just prohibit discrimination that you can prove was done intentionally, that you can show me the election registrar who's denying these people the right to vote and, like, point out where he said, I am a racist, I am doing this because I don't like black people. And absent that, you know, the amendments do nothing, even when litigants. went to the court to say, Alabama has rewritten its entire constitution. If you look at the front page of like the Montgomery advertiser, they're saying, we're doing this to protect white supremacy. And the court said, what do you expect us to do about this? It's not up to us. Go to Congress. And when Congress looked at this situation in which the court had been upholding all of these crazy things, including literacy tests, Congress with the Voting Rights Act said, no, we are interpreting the 15th and the 14th Amendment to ban these things. The court has got it wrong. And as Sherilyn said, the court for a little while said, I think Congress has this right here. But in 1980, the court said, no, no, no, it's an intent test. It is not what you are saying. Congress overrode that in 1982, and now this term in Calais, the court is doing the same thing again, saying, no, no, no, it's an intent test. Congress has it wrong. So the idea that Congress can just, you know, come back and fix the problem that the court is creating, that doesn't make any sense because so long as we live in this system and accept that the court should be supreme. It's just up to the court to decide what kinds of laws it likes and what kinds of laws it's going to strike down. And this really illustrates why the hubris that Stephen Sherlin are talking about is so important. Because to the extent we accept that these justices should have the final say, it might be one thing to accept that if the court was just applying these like really objective rules. Although, you know, the World Cup is happening now. The off-sides rule is objective. The rule governing red cards is objective. But I think we've seen how, you know, even these sort of objective rules can really be manipulated quite a bit. But... Even if the court's rules were objective, we might think like, oh, okay, you know, maybe we can accept this idea, but the court's rules are not objective at all. And one of the things the court is really leaning into now is a real lack of consistency in how it is applying the rules that it says it is applying. So Steve mentioned slaughter versus cook. I mean, I think these decisions may be just hard for ordinary people to understand, but just imagine. that you want a federal agency to supervise elections free from partisan interference. You know, imagine that you want just somebody who's neutrally looking at elections and asking, you know, is this rule fair or not? You might not want, you know, just a president randomly telling the commissioners or whoever is running it, I would like you to do something completely different. Forget your nonpartisan nature. Forget fairness. I want me to win.

Do whatever it takes for me to win. And Congress has created all of these agencies with rules in place saying, do your jobs. Do not just listen to whatever the president says, do your job. And you can only be removed for cause. You can only be removed if you are not doing your job. And what the court said in slaughter is that protection no longer exists. We're just going to allow the president to ignore it. And so, you know, the president just fired all of the Democratic members of an independent election board because he now can. A lot of the sort of presidential authoritarianism we've seen over the last 18 months or so is the president just taking what the Supreme Court has given him license to do. and say, I see these laws saying I can't act in a way I want to, I am going to ignore them, and I know the court has my back. But where the hubris and inconsistency comes in is the court then saying, but we like the Federal Reserve, so you can't interfere with that. Why? Because the Federal Reserve has like a different historical tradition. And what it comes down to is, you know, John Roberts likes the Fed and John Roberts does not like the Federal Trade Commission. And so, you know, that's it. And so we are in this system where there's just no way out. We could all get together and pass a new law tomorrow that we all agree is constitutional, would protect our democracy, would make things better for everybody. And if five people on the Supreme Court say, I don't like it, then all of that work is just for nothing. There's just no way out absent, really challenging the supremacy. And the court is cultivating for itself. Nico, I promise we're going to talk about the way out. But I want to give, I feel bad for Steve because I feel like every time he goes to a cocktail party, somebody probably leaps out of a closet and yells shadow docket. But I don't think we can not talk about the shadow docket again this term because, look, we knew the outcome of slaughter in advance because the supermajority let Trump get away with this firing months earlier, right, in an emergency order, which telegraphed where they were going. lot of the shadow docket's decisions this past term and the summer before it actually expanded Trump's power in ways that maybe didn't make front page news. And often, as is a recurring theme in this conversation, at the expense of Congress. So I'd love for you to talk for a minute, Steve, about what you make of the court not only reordering the balance of power between the president and Congress, but frequently doing it, and this was the answer to your first question, in these unsigned opinions issued long after a lot of us have gone to sleep. Yeah, I mean, it's interesting, Dahlia, because in one sense, things were a little quieter this term on the emergency docket.

But that's only because it would have been impossible for them to be busier than they were at various points during President Trump's first six months in office last year. I guess I'll pick out just two sets of examples because I think they'll both illustrate the point. The first is, you know, there's a crazy important ruling from late last September. I only know because it came down on my birthday. In a case that got very little attention called AIDS Vaccine Advisory Coalition versus Department of State. And that was the case where folks might have seen the headline that the Supreme Court cleared the way for President Trump to refuse to spend $4 billion in mandatory foreign aid spending. But it was Dalia the way they did it, right? It was, you know, this. cryptic ruling that said, you know, we're not really sure that anyone other than the comptroller general could enforce this statute, the impoundment control act, a theory so ridiculous that, you know, the government hadn't even argued it in the lower courts. And yet that was enough for two paragraphs that basically, Dahlia not only let the court sort of or let President Trump sort of refuse to spend $4 billion, but he's been using that ruling in the, you know, nine months since for all kinds of shenanigans when it comes to the appropriations power. That would usually be checked by Congress. But, you know, as someone wrote right after the Iran war started, it's a good thing Congress isn't alive to see any of this. So, you know, that's, I think, a really good example. And Elena Kagan's dissent in that case, I think is one of her better sort of short descends in this space. The other is, and this is a bit away from Trump, but I think it's actually part of the same point. You can't fully understand the damage the court did to elections and our democracy this term if you just read Calais. Right. You really have to read the five paragraphs the court wrote in the Texas case. The 101 words the court wrote in the Maliatakis case were for the first time. Ever, the court granted emergency relief against a state trial court ruling before the state Supreme Court had had a meaningful opportunity to consider the question. What happened after Calais, with one, immediately issuing the judgment over a dissent from Ketanji Brown Jackson, two, issuing a GVR, a grant, vacate, and remand of a... 280-page ruling by a unanimous three-judge district court in Alabama, a context in which the court had just distinguished Calais, and then three, when that district court moved heaven and earth to reaffirm its analysis in light of Calais, the court comes back and says, nope, not good enough, and wrote like a five-page opinion sort of freezing that ruling. And so, Donnie, the problem is that...

What I've tried to capture really for the better part of eight or nine years now in writing about the course behavior on the emergency docket is it really is a proxy. for, I think, what the court is doing in general, which is, you know, voting the justices preferences and then backfilling some kind of rationalization, which, you know, even when we get the full opinions, aren't always that persuasive and are shockingly unpersuasive in the emergency. I mean, just to take Malia Takas for one second, because this is maybe one of the cases from this term that most gets at my gears. Samuel Alito, who's the only justice in the majority who wrote anything justifying this novel intervention, had to come like this close to lying about the procedural posture of the case to explain in his concurring opinion why the court had the power to do what it did in that case in the first place. That's where we are. I had thought for years that what was happening on the emergency docket was a harbinger of what was coming on the merits docket. I think in a lot of ways that's what this term was. It was like the infection of that. Slaughter started on the emergency docket. The TPS cases, which we haven't talked about yet, which I think are also really, really important, especially in how they whitewash President Trump's racism, right, started on the emergency document. Like, the court. Many of the bad behaviors and pathologies that folks like I have been criticizing on the emergency docket now seem to be seeping their way into more and more merits rulings, and it turns out not for the better. We're going to take a short break. This episode is presented by Planned Parenthood Federation of America. Many of the most important legal fights in this country come down to a basic question. Who gets to make decisions about our bodies and our health care? That question isn't theoretical. It's playing out right now. The Trump administration's backers in Congress are trying to permanently defund Planned Parenthood, an effort to shut down health centers and block patients' care, especially from those with low incomes. Together, we have the power to protect and expand affordable care. Visit plannedparenthood.org slash defend and make a gift today.

There's never been a better time to get outside and experience the benefits of nature. Discover nearby trails and explore the outdoors with all trails. Download the free app today and find your outside. And we are back with Sherilyn Eiffel, Steve Lottick, and Nico Bowie, as we think through this past Supreme Court term with the very best in the biz. One of the predominant themes of the 2025 term, other than disempowering Congress and allowing the pathologies of the shadow docket to infect the merits docket, is recalibrating. what it means to be an American, I think, American identity. You mentioned the TPS case. I think hopefully we'll get to that. But, you know, it was more than TPS. It was the asylum ruling, right? It was the green card ruling, all these cases about immigration. Like, this was the Stephen Miller term where absolutely every effort to make America whiter and more Christian and more inaccessible and more frightening was all thrown at the wall. And with one important exception, we all acknowledged the birthright citizenship ruling, these efforts were blessed. by the court. And so I guess I think it's hard to see this term as anything less than a referendum on what it means to be an American in the MAGA multiverse. And I would love for our panelist thoughts on that. Sherilyn, I will start with you. I will also just convey a note from our producer that we're in the last quarter, so we have to keep answers a little brief. And sorry, this isn't the World Cup, so we don't get hydration breaks. So I think that the birthright citizenship case really is disastrous. And when I say that, I don't mean just the opinion in Trump v. Barbara. I want to take it all the way back to Trump v. Casa, the first iteration of the case. The idea that a presidential executive order could overcome an explicitly written constitutional provision that has been upheld by a more than 100-year Supreme Court precedent was so preposterous that obviously the Supreme Court should have summarily affirmed the findings. or the decisions of multiple district courts that had thrown Trump v. Casa out. But in my view, the court took up Trump v. Casa because they were so hungry to get at the issue that's been bothering them for years, the issue of district courts issuing nationwide injunctions. And so once again, I want to be clear that the court is not, because they frequently say, what can we do? Cases are just coming to us, and we just, then we have to try to figure it out. No, they are quite intentional, quite aggressive, and this was an example of that. They wanted that case because of the posture in which it came to them. So we have now waited more than a year around the question of, as Mark says, who is an American? While the court played around with an issue that matters to them and probably not to, you know, how many Americans are there, 350, probably 345 million Americans don't care about nationwide injunctions. But they did. And so they took this case up. Then they.

creeping into everything that the Supreme Court does. I think in a lot of ways Calais and Milligan were culture war decisions, right? There were also a bunch of other culture war issues on the docket this term that we are not even going to have time to fully flush out, guns, abortion, religion, LGBTQ rights. And I think it really shows you how urgently important the race and nationalism agendas are that these became like B-roll, even though they almost universally went. badly. So Steve and Nico, I know this is a tall order, but I would love if each of you could sort of pick out like the worst of these culture war decisions and talk about them. A dealer's choice, they didn't get as much spotlight as we think they deserved. And we would be remiss if each of you didn't have an opportunity to rant about how bad at least one of them was. I think any of these. could get their own dissertation about what the court's doing and why it's bad. But I guess one that stands out right now is the court's decision in Wolford, which involved Hawaii law that basically set a default rule that you can't bring your gun into a supermarket or a coffee shop unless you have the permission of the owner of the supermarket or coffee shop. The court said that that violates the Second Amendment as... incorporated through the 14th Amendment, it kind of illustrates just how discretionary all of these tests the court is making up are. So a few years ago in Bruin, the Supreme Court said the way we are now going to evaluate gun restrictions for the first time. is you have to point to a historical analog. You have to show how the modern gun restriction is analogous to an older gun restriction, a tradition of gun restrictions. And in the Hawaii case, Hawaii had a really great way of approaching that. They said, well, guess what? When Hawaii was a kingdom in 1833, we banned all guns. Just no guns in Hawaii. And the court looked at that and said, you know, that looks like it was an exception. It's kind of out there. It's not part of the American tradition in the same way as like, let's look at Pennsylvania. And, you know, it's kind of like you can do your best to abide by what the court has said it is looking for. And yet. the court can manufacture an exception to its own rule so that when you're back before the court with your new thing, the court can say, oh, but you know, you really missed this footnote in some opinion from the 30s that we said this is not okay and therefore you lose. And so it does not feel like a fair tribunal to kind of... rigorously apply even what the court is saying. I mean, you know, Charleston talked about the voting cases. I mean, the court had struck down state laws as violations of the Voting Rights Act only a few years earlier. Had it upheld on the shadow docket this year? What's the difference? Three years have passed. The inconsistency makes it just hard to move forward. It's hard to predict as a legislator or as a voter. What are we allowed?

to do. If we want to change something bad that the court has done, how can we do it in a way that complies with the court's vision of the Constitution? For some policy decisions, whether it deals with trans kids or guns or voting or anything else, I just don't think there is any way that Congress or a state can comply with whatever the court has said to the extent that it leads to a policy outcome that the court is upset about. So I just want to... Pickingback on that with my vote for probably the sleeper case of the term, which is a case called Landor versus Louisiana Department of Corrections. So this is ostensibly a religious liberty case. Damon Landor is a Rastafarian Louisiana state prisoner who didn't want to have to shave his dreadlocks as the Louisiana prison policy required him to. He literally had a copy with him in prison of the Fifth Circuit ruling that said he had a right under a statute called the religious land use. an institutionalized persons act, Real Yupa, to not shave his dreadlocks. And the prison officials literally took the ruling and shoved it in the trash and then shaved his head. And what did the Supreme Court say about all that? They said, well, because the religious land use and institutionalized persons act was enacted under Congress's spending power, as opposed to any of its other enumerated powers, the statute has to elicit. consent, not just from Louisiana, which consented by taking the money that it gets under Rilupa, but from the individual officers who had to consent to the possibility that they would be subject to individual damages liability for violating the statute. That is based Mark and Dolly, as you guys know, on such a tendentious reading of the spending clause, one that a, you know, wild district court adopted in 2001 and then law professors and circuit judges spent 20 years laughing at. And yet the Supreme Court adopts it in a six-three majority in a way that doesn't just screw over people like Damon Landor and lots of other members of religious minority groups in prisons. But Mark, in a way that's going to disempower Congress because this is one of its most important enumerated powers. And the Supreme Court has now made it much, much harder for Congress to pass these kinds of statutes in a way that will subject people who violate them to accountability for violating them. And that's just. completely insane. So that's my pick for the cultural war sort of disaster that we haven't paid enough attention to yet. I think by way of the very last question, we've tried to work our way through the big themes of the term, keeping our eye on the stakes, not just the performance, not just the scorecard, but I think the biggest theme. that runs through everything we've talked about is where we started with you, Nico, which is a sense that this court has arrogated unto itself unbelievable power over kind of all things. And more and more, we're hearing a public that is saying, stop.

But also we're hearing a public that is saying, I don't know what we can do about it. And next week, we're going to start our special series here on Amicus by the People, where we explore some of the ways. Americans can reclaim the power over the Constitution, power by the way, that Americans used until pretty recently. But before we get there, and this is going to be a speed round, I'm going to ask each of you. What in your mind is the very first thing at the top of your to-do list to try to kind of get Americans to come together and reign in the court and turn it back towards democracy? And maybe Sherilyn will start with you. My view is that I don't know what the outcome of the fall elections will be. But if the outcome of the fall elections is such that there is a majority in Congress that cares about the rule of law and that has the inclination to try and address some of the excesses of the Supreme Court, that they should be prepared to begin immediately on Supreme Court reform, that it should be the end of January when we get the notice of the hearings that are going to happen. And certainly my colleagues on this discussion should be some of the people who testify at those hearings. But we should begin. And I don't mean hearings just talking and talking and talking. I mean with concrete efforts to understand how this court needs to be reformed. What we are experiencing right now, in my view, is not law. And I say that with some hesitation and frankly with great pain. I was in the court. The last day decisions came down and then I think the penultimate one before that. And there were six cases. And simply by hearing the parties to the case, I could guess who was going to win. And I was right every time. And at the end of that, I thought, okay, well, that's not law. You know, if you can just tell, and, you know, it was like, oh, Rastafarian prisoner versus Department of Corrections, let me guess, Department of Corrections. Torture victim versus, you know, tech company, Cisco, you know, like I literally, it was each one. So I think when we get to that point, it is important to populate into the American public that this is deeply problematic because our public is very cynical right now. And so we need hearings to help people reset and understand that this is unacceptable. And then we need concrete constitutional ideas of change. Yeah. So we are about to have an election. And, you know, there are 435 House seats up for election. And our democracy has corroded to the point where only about 20 of them are competitive. So if you live in, you know, one of 415. seats in this country, you basically already know who your representative is going to be next year because the election is preordained by state legislatures using gerrymandering or by the absence of a voting rights act due to this court. And I think, you know, top of my to do list is Congress needs to... not just protect democracy, it needs to really restructure our country so that it is a democracy. It needs to pass a new version of a Voting Rights Act that eliminates the incentives behind partisan gerrymandering. That uses something like proportional representation for the House that requires states to adopt proportional representation, but that just eliminates this system where...

Representatives are choosing their voters rather than voters choosing their representative. And the necessity is there because of these past Supreme Court decisions, but the way in which this gets to your question is it really just does not matter what Congress does. The Supreme Court is going to invalidate that law. The Supreme Court is going to say, we do not like your change from the status quo. You may point to a billion precedents from past Congresses or Supreme Courts. You got it wrong. There is nothing that you can do to create a better version of our country, a better version of Congress under our watch. So in addition to protecting the ability of people to vote, to turn every voter into a swing voter rather than just the people who live in those 10 districts or 20 districts, Congress also must protect its legislation from the court. It must declare, here is how we, the American people, and our representatives in Congress understand the Constitution. And we do not want Samuel Alito to weigh in and offer his vision because it's wrong. We are in charge of what our governance of the people means. And so when we pass a new voting rights act, We are determining for ourselves how to, among other things, guarantee a Republican form of government in this country as the Constitution vests in Congress to do. So that's my bottom line recommendation and what I'm really pushing for is Congress needs to embrace its constitutional authority and protect it from the court that has shown it does not care about precedent. It just cares about its own policy judgments about what kind of country it wants to see. The way this worked historically was that the court actually had to look over its shoulder. And indeed, sometimes it had to look literally through the ceiling because it was sitting in the basement of the Capitol. And so, you know, in addition to the substantive reforms that Nico is championing, we have to talk about not sort of kneecapping the court, but making the court accountable again, getting to a point where the court can't just interpret a statute to mean completely the opposite of what Congress in. intended without repercussions. Something's happening next week that hasn't happened in seven years. Justices are appearing before Congress. Elena Kagan and Amy Coney Barrett are both set to testify in support of the court's budget. That used to be an annual thing. And it was actually sometimes pretty substantive. Congress controlled when the court sat, where the court sat, how the court sat, its budget, the justice's pensions. I mean, there are so many different levers Congress used to pull so that the court could decide what it wanted to decide in individual cases, but it couldn't just spend a whole term, right, thumbing its nose at everybody. And I think that's, to me, we have to reclaim that history and then.

reframe the conversation about how Congress can and should make the court look over its shoulder again, not so that the court does what we want it to do at all times, but so that the court doesn't get so completely divorced from its proper institutional and democratic role in our constitutional system. Yes. Thank you to our esteemed panelists, Steve, Nico, Sherilyn. Thank you so much for joining us. Yep, thanks, guys. Great to be with you. Thank you. This was great. Thank you. Last of all, Dahlia, why do we call it the breakfast table? I'm so glad you asked. Slate used to have in the early days when we used to chisel it like the Flintstones out of like rock with bird beaks, Slate used to have this amazing feature called the breakfast table where you would just have two people and they would write back and forth in like an epistolatory. fashion about whatever was going on. And one of the great, great joys of my life was that we used to, I used to first do it with Walter. Delinger, the former acting solicitor general, and in my head he's always right here at the breakfast table. And then we built it out into our end of the term show with all kinds of amazing guests over the years. And so in a weird, vestigial way, this thing that we do now is what remains of what used to be a beloved, cherished feature called the breakfast table. And to be clear, Even in 1999, there was no breakfast involved at the breakfast table, nor was there a table involved in the breakfast table. So query why it was called that then and also why we still call it now. You know, I had no idea about any of that somehow, Dahlia. Is that true? I'd always assumed it was because we always asked guests to say what they had for breakfast to test their audio and that we had so much audio of guests talking about their breakfast that it could be its own show. But this is a much more satisfying answer. So thank you. It's very meta. It is very meta what you're saying. But this long predated even having a podcast. And as you remember, Mark, we used to do the breakfast table in print often. sweating and crying. And some of our participants only knew how to write emails. They wouldn't submit like Word documents or anything like that. It would just be straight into email and we'd be like, okay, we're printing it. Those days are gone for better or worse. Okay. I think we're going to do, now we're going to do some pluskits with muskets. Amicus Plus members. Mark and I are hosting an after party in the smokeless cigar bar and you're invited. We are answering some of the dozens and dozens of very smart questions that you plusketeers sent in to amicus at slate.com. If you are not a plus member, visit slate.com slash amicusplus to join the joyful ranks of plusketeers. By joining, you support our work and you get loads of extras and add free listening and paywall free reading at slate.com. You can also.

subscribe to Slate Plus directly from the Amicus show page on Apple Podcasts and Spotify. Our bonus episode is available for you to listen to right now. We'll see you there. Thanks so much for listening. And tune in next week for the first in our new series, By the People, How to Reclaim the Constitution and the Law from this monarchic Supreme Court. Sarah Burningham is Amicus' supervising producer. Our producer is Sophie Summergrad. We are so grateful for the additional help this week from senior supervising producer, Joel Meyer. Hilary Fry is Slate's editor-in-chief. Susan Matthews is executive editor, Mia Lobel, is executive producer of Slate Podcasts. And Ben Richmond is our senior director of operations. Take good care, y'all. This episode is presented by Planned Parenthood Federation of America. Many of the most important legal fights in this country come down to a basic question. Who gets to make decisions about our bodies and our health care? That question isn't theoretical. It's playing out right now. The Trump administration's backers in Congress are trying to permanently defund Planned Parenthood, an effort to shut down health centers and block patients' care, especially from those with low incomes. Together, we have the power to protect and expand affordable care. Visit planned parenthood.org slash defend and make a gift today.

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