Amicus With Dahlia Lithwick | Law, justice, and the courts

This Supreme Court term has seen threats against the Justices – from the President, a slew of game-changing shadow docket opinions, justices sparring in public, and some of the most consequential cases of our lifetimes. If you’re feeling a little disoriented by it all, join Dahlia Lithwick and Mark Joseph Stern on this week’s show for a clearer understanding of what’s going on at One, First Street. They discuss the big immigration case the court took up just this week that will be crammed into the last week of arguments, Justice Ketanji Brown Jackson’s courage at a public event, and what it means when a justice steps out of the four corners of her opinions to voice urgent concerns about the shadow docket in public, and why, when it comes to threats to judges, the Chief Justice is meekly asking Trump knock it off, while taking no responsibility for his court’s role in it all.

Supplemental reading:
The Constitutional Accountability Center on the history of mail-in ballots
This week’s Executive Dysfunction newsletter from Slate’s jurisprudence team is a must-read: slate.com/dysfunction

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Next month, the Supreme Court will hear arguments in the birthright citizenship case, Trump v. Barbara. It’s still somewhat unbelievable that the high court will entertain arguments in favor of gutting an utterly clear constitutional commitment. Nonetheless, our motto on Amicus is “legal knowledge is power,” and in this case, historical understanding of legal knowledge … is power. On this week’s show, Dahlia Lithwick interviews constitutional and immigration scholar Anna O. Law about her forthcoming book, Migration and the Origins of American Citizenship.

In preparation for a lot of very bad originalist takes, Lithwick and Law discuss how immigration actually worked in the colonial and pre-Civil War eras and why the framers of the Reconstruction Amendments (including the birthright citizenship clause of the 14th Amendment) meant exactly what they said and said exactly what they meant. Law also explains how and why Wong Kim Ark affirmed birthright citizenship for children of Chinese immigrants, and emphasizes that the words “subject to the jurisdiction” had narrow historical exceptions. Finally, a reminder that the framers of the 14th Amendment chose to constitutionalize citizenship rather than establish it in statute—in anticipation of exactly the situation America finds itself in today.

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On this week’s Amicus, Dahlia Lithwick explores the rise of Christian nationalism in America, its influence on the Supreme Court , and the implications for democracy and civil rights. Featuring Rachel Laser, CEO of Americans United for Separation of Church and State, their discussion delves into the historical roots, recent legal cases, and the ongoing fight to uphold the separation of church and state in a country that survived two centuries as an open, pluralist refuge for all religions, and then became a Christian nation, seemingly overnight.

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Trump’s actions in Iran have massive global impacts, but they also have serious legal implications. On this extra episode of Amicus, exclusive to our Plus members, Mark Joseph Stern is joined by military law expert Eugene Fidell, a visiting lecturer and senior research scholar at Yale Law School. Their conversation focuses on constitutional constraints, the role of Congress, and the principles of international law, and emphasizes the need for Congress to reclaim its war powers. While it seems like real consequences are unlikely for those responsible for flouting these laws, there are serious implications for American democracy. Fidell explains why he’s calling for impeachment as a response to these unconstitutional actions––even if such a move is very unlikely to succeed.
This episode is member-exclusive. Listen to it now by subscribing to Slate Plus. By joining, not only will you unlock weekly bonus episodes of Amicus—you’ll also access ad-free listening across all your favorite Slate podcasts. You can subscribe directly from the Amicus show page on Apple Podcasts and Spotify. Or, visit slate.com/amicusplus to get access wherever you listen.

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“Not on the level” is how Donald Verrilli Jr. describes the Trump administration’s general, current Supreme Court practices. The former United States Solicitor General joins Dahlia Lithwick to discuss the ways this radical new posture is forcing judges to confront arguments and asserted powers previously seen as far beyond presidential authority, while still trying not to shift excessive power to courts by routinely declaring everything a pretext. They discuss whether Chief Justice John Roberts is at last signalling skepticism about Trump’s chaotic policymaking, whether the DOJ’s fluid relationship with facts is taking a toll on its credibility, and they debate the costs of delayed, splintered opinions in the major confrontation over executive power evident in the tariffs case. Don Verrilli also reflects on his deep and broad experience over decades of Supreme Court litigation, beginning with a clerkship for Justice Brennan in the 1980s, through his service in government under President Obama, to recent wins arguing before SCOTUS, to provide a truly clarifying perspective on the scale of the challenges facing the rule of law, and the “hard-nosed faith” required to overcome them.

And… introducing… Executive Dysfunction. A brand new newsletter from Slate’s jurisprudence team that surfaces under-the-radar stories about what Trump is doing to the law –– and how the law is pushing back. There’s always some story buried in court filings, hidden in regulatory fine print, happening in some courthouse you may not have heard of that actually matters. Every week, Executive Dysfunction will feature one story that cuts through it all, plus updates from the Slate Jurisprudence team. Go to slate.com/dysfunction to sign up.

Want more Amicus? Join Slate Plus to unlock weekly bonus episodes with exclusive legal analysis. Plus, you’ll access ad-free listening across all your favorite Slate podcasts. You can subscribe directly from the Amicus show page on Apple Podcasts and Spotify. Or, visit slate.com/amicusplus to get access wherever you listen.
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