Making Sense of the Supreme Court’s “Extreme Dysfunction” With Dahlia Lithwick

A show about the law and the nine Supreme Court justices who interpret it for the rest of America.

Dahlia Lithwick: “The Supreme Court’s conservatives are using the shadow docket to fast-track the right wing legal movement’s pet projects. While the shadow docket is supposed to be used for emergency appeals where time is of the essence, it is now being used to leapfrog past the time-consuming deliberations of oral arguments and signed opinions to quickly impose conservative positions. Case in point, the Court’s order allowing Texas to enforce a near-total ban on abortions. Serwer writes that by allowing Texas’ law to stay in effect, ‘five conservative justices told Republican-controlled states they could disregard Roe while insisting that wasn’t what they were doing at all.’”

DL: “The Supreme Court’s shadow docket ruling on Alabama’s racially gerrymandered congressional maps is a key example of the rise of the shadow docket, and why that’s a big problem for the court and our democracy. As Vladek writes, ‘The court routinely flouts its own procedural standards to change substantive law in unexplained and inconsistent rulings.’ Not only has the Court increased its usage of the shadow docket in recent years, the Alabama case underscores the frightening ways its use has changed.”

DL: “Rick Hasen has been consistently ringing the alarm bell about threats to the integrity of American elections for years. In this essay, he lays out mechanisms by which the 2024 election could be stolen, such as state legislatures overruling the will of the voters (possibly with an assist from the conservative Supree Court) and election officials manipulating the vote count. The possibilities are chilling, but forewarned is forearmed, and Hasen also proposes possible legal and political remedies to avert such crises.”

DL: “While the right often sneers at identity politics, Amy Coney Barrett’s identity as a woman and a mother has been an asset for the court’s conservatives, especially on the issue of abortion. Murray analyzes how Barrett herself, as a working mom of seven, brings that experience to her jurisprudence and changes the perception of the Court’s conservative bloc. A group of all men overturning Roe smacks of paternalism, but Barrett’s presence provides some symbolic cover and legitimacy to the Court’s anti-abortion project.”

DL: “The Supreme Court is poised to invert the meaning of religious freedom, recasting government neutrality on religion as unconstitutional anti-Christian discrimination. The case Kennedy v. Bremerton School District could unravel over 50 years of precedent protecting students from mandated school prayer. The case centers on Joe Kennedy, a former football coach in Washington who led student athletes in explicitly religious prayer circles after games. Although the state tried to accommodate Kennedy’s beliefs without infringing on his students’ First Amendment rights, Kennedy went on the offensive, launching a media campaign arguing that he was being persecuted for practicing his religion. Kennedy’s strategy will likely succeed at the Supreme Court, ‘because proponents of school prayer have perfected a tactic that reverses the victim and offender.’ The Supreme Court’s decision will be more than a reversal of doctrine: it’s proof of the success of a conservative religious movement that aims to erase the separation of church.”

DL: “What will it take for Democrats to take the Supreme Court’s partisan agenda seriously? During the Senate confirmation hearings for Ketanji Brown Jackson, the Democrats were listless, failing to make their case to the American people about the threats to their constitutional rights and freedoms—and leaving Jackson to be torn apart by their GOP counterparts. Instead of using the hearings as an opportunity to hammer home the stakes of this fight, the Democratic senators acted without a sense of urgency.”

DL: “The supremacy of the Supreme Court over the other branches of government is not inherent to America’s Constitution. Instead, it can be traced back to an anti-democratic backlash against the multiracial reforms instituted during Reconstruction. Before the Civil War, the balance of power in Washington favored Congress and not the Court. After the war, Republicans in Congress worked to expand civil rights and freedoms for all Americans. In the mid-1870s, when the Republicans lost control of Congress, the Court took steps to wrest power from the legislative branch, establishing a new judicial order in which ultimate decisionmaking power rests in the hands of a few unelected justices instead of with the citizens. As Bowie and Renan put it, ‘the Court’s assertion of the power to invalidate federal laws has stripped Americans of the expectation, once widely shared, that the most important interpretations of the Constitution are expressed not by judicial decree but by the participation of “We, the People,” in enacting national legislation.’”

The new season of Slate’s Slow Burn podcast investigates how the pro-life movement found its footing in the years before Roe v. Wade. Here, host Susan Matthews shares a reading list for understanding the context around the historic decision.