Yes, Supreme Court Decisions Really Matter

Prime Video offers the best in entertainment. This should be fun. Jason Momoa and Dave Bautista... ...goan completely loose in the hilarious new action film The Wrecking Crew. Inbegrepen by Prime. Yeah, I'm pumped. Find the new Game of Thrones series A Night of the Seven Kingdoms. Based on the bestseller of George R.R. Martin. Look by being a member of HBO Max. So be brave, be just. So whatever you want to find, Prime Video. Here you look at everything. Abonnement is revised. Inputs can be found 18+. The general rules are of use. This is Amicus Slate's podcast about the courts and the law. I'm Dahlia Lithwick. Are they still invited to your State of the Union next week? Yeah, they are invited, barely. They're articulating the idea that, no, we have a rule of law. We're standing up for the rule of law. Three are happily invited. No, no, they're barely, they're barely invited. Honestly, I couldn't care less if they come. We'll even stand up for the rule of law knowing we're going to be criticized and maybe at some risk for doing it. But we're going to do that. Keeping that idea alive and vital and a source of energy is really, really important. The last seven days since last we spoke have seen a pitched battle of dueling op-ed pieces over last week's tariff ruling. and what it does or doesn't tell us about this shifting axis of power and control that exists between the Supreme Court and President Donald Trump, about whether to take the Roberts Court seriously and literally as an institution that can constrain this president, or whether placing, quote unquote, good outcomes from a stacked and captured court into the win column is just hopelessly naive. And while this is by no means going to be a show about the theatrics and the optics of Trump v. the Supreme Court post-tariffs or what we could glean from the longest, most hateful State of the Union speech in history, it is a show about Trump versus the judicial branch and specifically the court that sits at its head. far more consequential than Trump's declaration of the withdrawal of capital letters from SCOTUS or his description of justices on the highest court in the land as fools and lapdogs for failing to be his fools and lapdogs, there is still a meaningful question about whether they can and will stop him and when. So this is the theme along which we are trying to live, and we want to focus in on it this week, where the law really, really matters and where the Supreme Court's decisions also really, really matter, and the president berating justices to their faces also really matters, but where institutional capture and authoritarian creep dressed up as law requires just teetering on the seam somewhere between complete credulousness and total nihilism. I can think of nobody who describes and navigates that space between law and chaos better than Donald B. Verrilli Jr., former Solicitor General of the United States from 2011 till 2016, now a partner with Munger, Tolles & Olson, and the founder of its Washington, D.C. office. Since joining that firm after his government service, Verrilli has handled numerous big cases at the U.S. Supreme Court, including racking up victories in Moore v. Harper, rejecting the independent state legislature theory, and California v. Texas, which upheld the Affordable Care Act. As Solicitor General under Barack Obama, he argued some of the most important cases heard at SCOTUS in that time, including the original Affordable Care Act case and Obergefell, which recognized the right to marriage equality. Don's awards and honors are far too many to mention, but he is also a lecturer in law at Columbia Law School, where he teaches classes on the First Amendment and the Supreme Court. Don Verrilli, welcome back to the podcast. Last time we spoke was about 10 years ago, and we had an exit interview of sorts immediately after you left the SG's office in 2016. Well, thank you, Dahlia. It's great to have a chance to talk with you again. I want to talk about where we are in this moment, because I think, as you know better than most people, we're at a really critical moment. But I thought it might be useful to begin this conversation with where we came from. And as I've said a couple of times, you served as the SG. When we try to say to people we are in a different world, a year and change into the Trump administration, sometimes I think it's hard for people to see how and why. They think it's like a slightly different world. OK, you know, the players are a little different. There's a little more saltiness coming from the SG's office. But, you know, there's still oral arguments. There's amicus briefs. Decisions come down. Some decisions even come down on the merits docket still. And yet the Justice Department is unrecognizable. Some of the arguments that are advanced by the Trump administration in some cases are laughable and dangerous. Every day, in every way, we are through the looking glass at the Supreme Court and the practice of law at the Supreme Court. And also, for most people who are listening, it looks the same. So can you even tell me in some material way, as somebody who took this practice extremely seriously for a lot of years and still does, what's different? Yeah. I don't think the difference is with the court. I think the difference is with the administration, as you suggested. And the way I think about it, it's kind of a simple idea, but it helps illuminate things for me. So much now is just not on the level. It's just not on the level. The administration is doing things that nobody thought presidents and executive branches had the power to do and making arguments that nobody thought you'd see the Justice Department making. And it poses this giant challenge for the Supreme Court and the federal judges generally. What are they supposed to do? They know that things aren't on the level, but if they start saying in case after case, well, this administration's arguments are just a pretext, you know, effectively, that's going to transfer an enormous amount of power from the president and the presidency over to the courts, because they'll be able to second guess almost everything on those kinds of grounds. And they don't want to do that. You know, this came up some in the first Trump administration, I thought. You know, the census case was a pretty good example of that, where the Justice Department claimed that they were using census data to actually help secure voting rights. But we learned instead that they were using it to help Republican states gerrymander the hell out of their congressional districts. And, you know, and kind of the chief justice called them out on that in the opinion. And the DACA case in the first Trump administration was kind of like that, too, where nobody wanted to take responsibility for killing off DACA. And again, the chief justice said, you know, come on, no game playing. But most of the time, they feel like they can't just say, you know, this is not on a level we're not going to countenance it because they think of themselves as, you know, writing rules for the presidency. generally for the future and not just for this one president who you and I think is completely apparent. And I think probably many of the justices also think is, you know, maybe not as apparent as we think, but, you know, somewhat apparent. And so I just think that's a big challenge for them. And that's what many of the cases really are sort of boiled down to. How are they going to deal with that problem? It's interesting that you raise the census case because it was one of those moments where you kind of watch the chief justice just puncture the veil and essentially say, don't come in here and lie to me, or at minimum, lie better. Do a better job of creating a pretextual reason for this, but don't come in here and expect me to just swallow it. Linda Greenhouse had a really thoughtful piece, I thought, this week in the New York Times, where she talked about the ways in which the chief justice had this one paragraph in the tariffs argument where it was really clear by the way he described, you know, and on Tuesday, the tariffs were this and the next day, you know, are we at war with the whole world? You know, the ways in which the chief justice went way beyond what we would call dicta into what felt like simply condemning the Trump tariffs policy. And Linda used it to sort of make the point that has John Sauer lost the chief, you know? And she referenced the oral argument in the Lisa Cook case where Sauer opened his oral argument by describing, quote, deceit or gross negligence by a financial regulator and financial transaction is cause for removal. And you had the chief kind of immediately spit back. You began by talking about deceit. Does what you said after that apply in the case of an inadvertent mistake contradicted by other documents in the record. So again, way outside the bounds of the merits of that case, but just saying, don't come in here and tell me that Lisa Cook is some horrific, you know, malefactor who has to be removed. We've all made mistakes on our documents. And it did raise a question, or I at least think Linda's piece raises the question, that maybe part of what is changing for the chief justice is how seriously he's taking, just to go to your point of taking them at face value, how seriously he's taking the administration's arguments now. I thought that paragraph in the tariff case Linda wrote about and that you just mentioned jumped out at me, too, just jumped right off the page. And he was basically saying, oh, yeah, you used your powers to declare a national emergency based on fentanyl and trade deficits, and then you use tariffs for all these crazy, chaotic reasons that don't seem to have anything to do with the reasons that you call an emergency in the first place. That, to me, was a way of saying, you know, it's obvious that this isn't on the level, but not making that sort of the legal basis for the decision. So, I did think that was really important. I hesitate to go so far as to say that the Solicitor General, John Sauer, has lost the Chief Justice, having sat in that chair for five years, you know, you get second-guessed all the time when you're in that chair. And I'm a little bit loath to do that. I do think, and you know, maybe I'm being unfair to him, but I do think that his boss is putting him in a difficult position because I doubt if it were up to his own judgment that he would have started off his argument in the Lisa Cook case, you know, the Fed official who Trump tried to fire with that sentence. It doesn't seem like it was prudent to do it. And you never want the chief justice jumping you like that. I also think the first page of the government's brief in the tariff case, like, man, when I first read that, I couldn't believe it. It reads like it was written by President Trump himself, and it might well have been, in fact, written by President Trump himself. And, you know, I don't know, man, I would have been tempted to jump off the roof of the Justice Department rather than file a brief with my name on it that had that as its first page. But I don't think that's him. I think he's under a lot of pressure and he's trying to deal with what's probably an exceedingly difficult situation over there. But I do think it poses some risk for the ability of the SG's office to be as persuasive as it can be. Every SG understands that you've got this reservoir of credibility and you're supposed to protect it. So when you think about the kinds of arguments you're going to make and the kind of language you're going to use when you make them, you're thinking about preserving the office's credibility. And I just think President Trump makes that exceedingly difficult for them. I don't know this to be true. I've never had a conversation with anybody there about this, but I feel like that's really what's going on, that they're under all this pressure. They're trying to find a way to satisfy Trump, who's going to be intervening in the process in the way presidents don't, while still preserving as much of their institutional integrity as they can. And I think that's a pretty big challenge. Can you talk for a minute, Don, about who you answered to as SG? Because I think one of the things that's very tricky is it's a really thickety role. It's hard to explain, I think, to a layperson, first and foremost, that you're not the president's lawyer. It's not your job to inhabit the legal world he inhabits. But it is a really tricky role in terms of trying to protect executive prerogatives, right? Can you just try to Venn diagram for me the difference between what people think the SG does and what you were actually doing in that office? Because I think you've done a good job of explaining how doubly tricky it is for John Sauer. But even for you, this is not an easy path. Yeah, no, and it's hard to actually explain it effectively, but sort of the hornbook idea of what a solicitor general should be is that the person occupying that office should be exercising independent judgment to take positions that are in the long-term interests of the United States government. Long-term interests of the government and independent judgment. But, of course, you're also a high-level official in the executive branch, and the president is your boss, and the attorney general is your boss. And so you're always trying to strike a balance between carrying out those responsibilities, the historic responsibilities of the office, and protecting the policy agenda of the president for whom you're serving. And there's no algorithm that one SG leaves in the desk for the next SG to apply to figure out what the right answer is on that. But there are just some times where you know you can't do what the White House wants to do because it would damage the credibility of the administration and the Department of Justice in front of the court too much or be too much of a departure from the norms that the office has tried to live by. There are other times where you make the judgment that, no, the president is seeking a legitimate legal policy objective that the president has the authority to seek, and I'm comfortable carrying that out. And you just manage all that as best you can. I mean I was really lucky I think we actually talked about this some 10 years ago I was really lucky President Obama was incredibly respectful of the office of SG And there was not a single time in my five years where the White House overruled me on anything I didn have regular meetings with the president or the White House counsel or anybody else over there Something was a little bit controversial. I might call them up and give them a heads up of what I was planning. And, of course, they could theoretically have told me not to do it, but they never did. So I was able to operate with a lot of free space around me to make judgments that I thought were the right ones for the administration in the country. You know, that varies, I think, some from presidency to presidency. It just seems evident to me that that kind of respect for the institutional autonomy of the Department of Justice and the SG's office is completely gone right now. Let's pause now to hear from some of our sponsors. More now with former Solicitor General of the United States, Don Varelli. I want to ask you one more big brain question, and then I'll just ask easier questions about the tariffs case. But one of the things I really wanted to think through with you is a riff on something that actually came up last week immediately when the decision came down and Mark Stern and I were responding to it in the moment. I've heard you talk about this as well. Well, the court is by design insulated from the world, right? It's covered in bubble wrap, lifetime tenure, don't care what you think, don't care what you're doing out there on the plaza, brains in a vat. And this made me actually crazy during the insurrection case two terms ago, because if you listen to the oral arguments, which we did, you might never know that the insurrectionists were planning to, I don't know, hang Mike Pence across the street from where the court sits. Just didn't come up. We were talking about deep state actors at the DOJ as though that was more real than what literally physically happened across the street. And last week, there was this interesting turn where we kind of saw that dynamic flip completely on its head. So here are the justices in the majority who seem completely unbothered that Donald Trump has been leveling threats against them, real genuine threats against them for months. And they just did, I don't know, a series of dueling law review articles on the major questions doctrine. It was like they couldn't have cared less about what was happening in the world. These are tangible threats to their families, their safety. And it raises the question of if this is worth a second look. Yes, the court is clueless and out of touch about what happens in the world. But sometimes that judicial independence and lifetime tenure is a good thing. And this is part of this larger question I have of the John Roberts glow up that we got this week where everybody's in love with him again. Great, serious leader. But he didn't just mouth platitudes about judicial independence last week, right? The court did stand up for it, even day late, dollar short. And is this maybe a case of credit where it's due? I should take more seriously the notion that they're insulated from the world. I think I agree with you. I worry that he may gravely disappoint you within months on some other matter on this very thing. Let's call it weeks, Don. Yeah, okay, weeks. Let's call it weeks. Okay, fair enough. But I do think, you know, some people have looked at the tariff case, for example, and said, ah, they're just voting their pocketbooks. You know, they are worried about the stock market, etc. I don't think that's the case. I just don't think that's the way the chief justice or anybody else is thinking about it. I do think that they acted good faith. I disagree a lot with the exercise of judgment that that good faith produces, but I do think they're acting good faith. And I think this was a case in which I think they understood that if they were going to uphold the president's use of the statutory authority to do these tariffs, that they were just blessing a wholesale transfer of a massive amount of power from Congress to the president and that they just weren't going to do that. Seeing the capricious way in which that power was being abused by the president, they just weren't going to do it. So, I think it's both that they were actually cognizant of what was going on in the real world and exercising the independence that life tenure, et cetera, gives to them. I think both things were going on at the same time in that case. To me, what was heartening about it was actually the first part of it, that they did seem cognizant. And based on that paragraph we were talking about earlier in the chief's opinion, they did seem cognizant about what was happening in the real world. that wasn't just a theoretical sort of law school seminar exercise, at least in the chief's opinion. I will say I thought Justice Gorsuch's opinion in that case was basically a law school seminar exercise. And, you know, you got a lot of praise for it. You know, I don't know. In a case like that where this really is a major, major confrontation between the court and the president, you know, I think you'd want to not use that as the occasion to have this extended academic debate about, you know, specific five points of legal doctrine. But anyway, be that as it may, he did vote with them. So, you know, I do think both things are going on and that is heartening to me because I think what's important in this case, I think it's going to be important over the next three years. I mean, like, it seems probable to me that other crazy things are going to happen over the next three years and they're going to test the court. And the court's going to need to think not just about the abstract principles that apply to the presidency in the future, but about the balance of power and the ability of our constitutional structure to endure in the here and now, they're going to have to be thinking about that in concrete terms. And so I kind of felt heartened that they seem to be doing that in this case. I did think Richard Primas had a kind of smart observation this week that not only did this take a really, really, really long time to come down, but it slightly felt as though the reason it took a really, really, really long time to come down is that some of the justices were, you know, honing their dunking on each other and their like smart-alecky responses. And that there was a little bit of that, you know, the quality that used to make us nervous in Justice Scalia, you know, the sort of flapping their dirty laundry and making a point about who the smartest person in the room was. I remember Erwin Chemerinsky years ago warning that the judicial tone was coarsening and it was sort of starting to inflect on how law professors thought and wrote and law students thought and wrote. Is it fair to say that every single day that that opinion was being held back? It does seem as though we knew this from arguments that it was going to come down this way. Every day that it was held back, harms accrued, not to the justices. Is it fair to say this should of come out quick and clean in the interest of the people? Or is there some merit in the degree of sort of internecine face booping that happened throughout these opinions? I think there's zero merit, Matt. Okay. For a couple of reasons. One is the one you said this case was considered on an expedited basis in full recognition that every day that the case went unresolved, more and more tariff money was coming into the federal treasury, meaning that there was a bigger and bigger problem every day. Like, that's a serious practical thing. But there was something even more serious to me, which was that this was a major confrontation between the president and the Supreme Court. And, you know, it's an issue of great consequence. This was Trump's most important policy initiative, domestic policy and really foreign policy to him anyways. And the court was telling him it was unlawful. lawful. And it didn't seem like the right occasion to me for a lot of extended discourse with a lot of sort of snipey back and forth about what the major questions doctrine should call for. I mean, if you actually think about it, what Justice Barrett said, what Justice Gorsuch said, what Justice Kagan said, and her concurrence on what the chief said, there was kind of a common core to it, which is like, you know, use your common sense, man. There's no possible way that Congress meant to effectuate a wholesale transfer of all of this power to the president to basically decide how the federal government was going to be funded and what our international relations were going to be all through tariffs. It was like no way that that's what Congress intended. And all four of the opinions kind of focused on that. And there was actually an opportunity for kind of commonality there. And it seemed unfortunate to me that the court didn't speak with a more unified voice, given the momentous stakes in the case. Now, having said that, you know, Justice Jackson made himself famous for writing a concurrence in a similar kind of case, the steel seizure case, Youngstown, in which- We should be clear. Yeah, not Justice Ketanji Jackson. Justice Robert Jackson. So thank you. Right. In the 1950s, in this, you know, great confrontation between the Supreme Court and the president over the president's exercise of unilateral power, That was a moment for unanimity, too. But, you know, Jackson spoke separately and that was his separate opinion that sort of had guided the way people think about these important issues now for 70 years. And so I guess the temptation was to try to do something like that in this case. But I think if you're going to do something like that, you better hit a home run the way Robert Jackson did in the steel seizure case. Wait, does that mean this was a home run for all intents and purposes? Do you feel like the opinion written by the chief justice was pretty close to that kind of magisterial Jacksonian? I thought it was one of his best opinions. Yeah, I really did think it was one of his best opinions. You know, it was thoughtful, it was careful, but it was also resolute. And that was really important, I thought. It does lead me to wonder, and I think for me, this is the most important question that I pull out of the discourse around the tariffs ruling. I mean, yes, we're going to be litigating, you know, whatever the fallout is for years to come. But I think a lot of very smart lawyers have been trying to draw from the opinions, you know, Youngstown citations and, you know, whatever this says about the future of the major questions doctrine. I think the only important question is exactly what you just said. What's happening in the next weeks and months? You know, what's happening in Calais, the voting rights case? You know, is there a profound shift in how Amy Coney Barrett is going to deal with the major questions doctrine? And then a really interesting sort of set of sub-questions about not just the remainder of the term, but the remainder of the presidency and whether and how we think about Trump and executive power and foreign relations. All of that, for me, is just a huge question mark. It seems like some things have changed. And you can telegraph from some of those things that may have changed what might change in the future. But is there any straight line you can draw between something that changed not just in terms of tariffs, but how the court wants to approach this executive and this theory of executive power going forward that you can project onto other cases? It's really hard. You know, I'd like to. But I think the chief justice is subject to some real conflicting impulses here. And I think that's probably true about Justice Barrett and Justice Kavanaugh, maybe even Justice Gorsuch, in that they have believed their whole lives, their whole professional lives, that there should be a really strong executive. I think for John Roberts and Sam Alito, they kind of came of age about the same time I did, you know, in the Reagan years where they saw the way in which Congress asserted itself to put fetters on the presidency in all kinds of ways. And they thought that was terrible. And those ideas, I think, solidified in their minds 40-some odd years ago. And they've been trying to implement them ever since. And they're trying to implement them now. and they're, you know, in the slaughter case about the so-called unitary executive theory, they're probably going to implement. And so I think on the one hand, you've got that impulse. On the other hand, I think it's impossible for them not to appreciate the risks of unchecked presidential power in the hands of this president. And so how they're going to work all that out, I don't know. I don't think there's a straight line through it. But what I'm heartened by is that they do seem cognizant of the second thing and not just so wedded to those ideas about executive power that they first came to believe during the formative stage of their career. There's sort of enough of a sense of what's going on in the real world, I think, that they're bringing some balance to it. And so, I mean, Harton may be too strong a word, you know, but I think it's not nearly as bad as it could be. And you're not saying, I just want to be precise. You're in no way saying that you read the tariffs majority opinions in totality, the majority in the concurrences to mean that this is the court having massive second thoughts about the immunity decision. It is emphatically not that. No, no. It's something much, much subtler that anybody who thinks this is buyer's remorse or you broke it, you bought it, is absolutely wrong about that. That's not what happened. I don't see any sense of regret about the immunity decision. That may come. You know, we have three more years of this. And so that may come, but I don't see it yet. I don't see it. You mentioned, and I think this was a good and subtle point, that the court knew what was happening outside the building, you know, up to and including which countries got tariffed and why. And also seemingly felt pretty immune from Donald Trump's threats, you know, to impeach them and remove them and whatever. But one of the real world things that seemed not to bother them at all in tariffs was the remedy problem. How are we going to fix this? Which is, I think, where, you know, Justice Kavanaugh was sort of actually speaking for a lot of Americans who were like, wait, show me the money. Do the court have an obligation to delve into a remedy and how to fix this, or did they do exactly what they needed to do and no more? They have received some criticism for not at least signaling what they think about the remedies. I actually think that's prudent. They had to understand that there was going to be a tsunami of litigation. And we have this thing called the Court of International Trade, which nobody's ever heard of, but now everybody's going to know all about because that's the specialized court that's going to have to deal with all these claims for tariff refunds. And that going to play itself out in ways that I don think they can really understand in advance There really wasn very much in the briefing about this remedies issue And so my view of that was that it would have been unwise for them to say anything. You know, I thought the chief justice put that footnote in his opinion saying, you know what, this comes later, we'll deal with it later. And I thought that was a wise thing to do. You know, at some point, it's hard to imagine it happening in this presidency, but it feels like the kind of thing, and maybe it'll be three or four years from now where Congress should step in and, you know, enact some legislation that kind of cleans everything up and won't make everybody entirely whole, but we'll deal with it. But I don't think that's going to happen in the next three years. And so, you know, given that, you got to let the process play out. And, you know, and I think it was good for them to hold their fire on that. So I started this conversation, Dawn, by saying that there's a huge temptation for the people who live outside of the world of the Supreme Court to just say, nothing matters. Roberts Court is dead to me. Why are we bothering with any of this? And I think part of why we're having this conversation is that sometimes that is too cynical. And sometimes, as was the case with the tariffs case, it just is wrong. There isn't another place to go. You don't have an alternate Supreme Court where you can take your appeals if you don't like these ones. And I would love for your theory of the case of how you think through holding these two thoughts. I feel like this could be the theme song of amicus. But how do you hold these two thoughts in your head at once? We cannot overstate how much people have been harmed by what has happened at the court in the past year, often on the shadow docket in ways that we don't even understand the reasoning. And at the same time, that this entire project still matters, that taking cases to the court matters, that finding plaintiffs as they did brilliantly in this case still matters and being vindicated in this court still matters. Is there a way that you think about how this balances out in terms of how to approach the court in a both clear-eyed and sober way, but also not a way that is, you know, this is utterly useless, burn it all down? So rather than talk about that in the abstract, maybe talk about something concrete. When I was a young lawyer, right after I finished clerking, the Supreme Court decided Bowers versus Hardwick, which was a case that rejected the idea that there was any constitutional protection for same-sex relationships. And rejected it in an opinion that was sort of bitter in tone, frankly, and demeaning in tone. And that was the mid-1980s. It was a devastating blow for a lot of people. And I remember for a very long time after that, people saying, well, there's no possible way the Supreme Court is ever going to recognize any kind of dignitary equality for gay and lesbian people. It's never going to happen. A lot of people believe that. And, you know, maybe I was one of them. But then, you know, you watch there was a movement out there in the country. And it was a bottom-up movement, really, and all kinds of organizing and people deciding to bring lawsuits and find plaintiffs and engage in scholarship and do all that kind of work. And it led, you know, in the first phase of it to the overruling of Bowers in the Lawrence case, which my friend and then colleague Paul Smith did, then, you know, progressed from there to Obergefell some years later. And so, I mean, the court that decided Lawrence was by no stretch of the imagination a liberal court. It wasn't the Warren court, you know, it was the Rehnquist court. And the court that decided Obergefell was by no stretch of the imagination a liberal court either. And yet, look what happened. It was because people maintain their commitment. It's a form of faith, I think. It's not a naive faith. It's a faith that recognizes that this is going to be a long fight, an uphill fight. We're going to lose things along the way. You know, maybe borrowing from something you said, like, what choice do we have? It's either this or give up entirely. And enough good things have happened when people decided not to give up entirely that, you know, it means having that kind of, you know, hard-nosed faith, but faith. supported. You know, think back to the people who founded the NAACP in the first part of the 20th century. Man, those people lost so many cases for so many decades. You know, we like to think about Thurgood Marshall in 1954, but think about all the decades of struggle and loss that preceded that. And yet they kept faith. It was a hard-nosed faith, but they kept faith. And they got to Brown v. Board of Education. And, you know, a lot of the people who started that fight in the early part of the 20th century never lived to see the result in Brown. But they fought anyway, because they had that kind of commitment. And to me, that's the right way to think about it. It's the right way to think about it now. I mean, a lot of stuff is bleak now. And I think a lot of huge damage has been done by the administration. And the court has given a lot of it a green light on the shadow docket. And I find that quite distressing. Nevertheless, I look at the course of our history. And I feel like there's reason to keep the faith. I love what you're saying. It's been a sort of a substratum of everything we've worked on on the show for the last year is trying to think through the idea that just because the court says a thing doesn't make it the law. We get to be a part of that, too. And I think the more you sort of sit back, whether you're sort of popping popcorn and gossiping or just writing off the whole project, the more you're taking yourself out of that conversation, right? And both of those are forms of learned helplessness, you know, cynicism or frivolousness. And I love what you're saying because what you're saying is, and I was sitting in the court when Obergefell came down, I remember that feeling of everybody in the room made that happen. You know, they made that happen by putting, you know, their own skin in the game. We're going to take a short break. Let's return now to my conversation with Donald Varelli, former U.S. Solicitor General. David French had an interesting piece in The New York Times this week, I'm sure you read it, declaring that tariffs was the most important case of the century. I'm probably not there. I don't definitely make declamations about the century within a week of things. But he did offer one helpful, I think, fix to this same problem you're describing in terms of the sentiment that, you know, the courts just don't matter anymore. And he wrote this, quote, During Trump's second term, I've likened the judiciary to the rear guard of a retreating army. A valiant, delaying action can give the army a chance to reinforce, reorganize, and strike back. But if the army can't strike back, then rear guards merely delay defeat. The judiciary isn't perfect, but it is performing its core constitutional function. It is preserving the foundation of America's constitutional structure. Not even the Supreme Court can save Americans from themselves, end quote. And it, again, a lot of those premises I'm not sure I'm all on board with, but I sort of am on board with the idea. And we had the wonderful Kim Lane Shepley on at the beginning of the second Trump term. She just talked about this in terms of sand in the gears, throw sand in the gears, make things take a long time, get attention, is some of the way you are thinking about the courts, which, let's say it again, has no purse, has no sword, has no army, cannot enforce their own decisions, judges around the country being threatened with impeachment and doxed and their families threatened. And yet there is a piece of the courts that is doing a bang up job of sand in the gears rear guard action right now. It shouldn't be trivialized. Yeah. So I think it's even more than sand in the gears. And it's probably still a rear guard action, but maybe even more than that. You know, I think about this in terms of the executive order cases against the law firms, which I've been involved in. Okay. So one way of looking at that, cynical, not unfairly cynical, but cynical is that, well, Trump won that. All these law firms cut deals. Most law firms wouldn't stand up and fight. But some law firms stood up and fought and they got rulings that said that this kind of conduct by a president is antithetical to the rule of law. And what if they hadn't? That's, I think, the way to think about it. What if those fights hadn't been fought? What if those judges hadn't issued those rulings. What would the world look like then? You know, you would have an executive that was just on the rampage with no one willing to stand up. And I see that in federal district judges and a lot of court of appeals judges too, over and over and over again, really in hundreds of cases, saying, no, no, rule of law matters. And I think it's really important, this book that everybody's talking about now, Ernest Frankel's Nazi Germany and the Prerogative State, and the idea being that there were basically two systems of law. There was the normative law in which all the regular rules applied and everybody went to court and sued over breach of contract, et cetera. And then there was the so-called prerogative law in which the Nazi regime could work all of its depredations without anybody in the legal profession or the judiciary having the guts to stand up to them. And, you know, that prerogative law thing is, you know, it could happen here. And we've been on our way to having it happen if these federal district judges hadn't shown the courage they had shown in all of these hundreds of cases. I think that's really important. Maybe the right way to think about it is as a rear guard action, but I think it's more than just slowing down the stampeding progress of the president and the executive branch, because I think they're articulating a principle that matters. They're articulating the idea that, no, we have a rule of law. We're standing up for the rule of law. We'll even stand up for the rule of law knowing we're going to be criticized and maybe at some risk for doing it, But we're going to do that. And I think keeping that idea alive and vital and a source of energy is really, really important. I have two more questions. And one is the Justice Department question, because I've got, in addition to an Ernest Frankel fetish, I have an A.O. Hirschman fetish. And, you know, that sort of classic exit loyalty voice problem that has really plagued me since the first Trump administration. These really, I find to be intractable, insoluble questions about what you do inside an organization when you're having to choose between sticking around and doing harm, sticking around and trying to mitigate harm as best you can, you know, quiet quitting and whistleblowing and, you know, saying I didn't go to law school for this. And we are watching lawyers, particularly Don Young lawyers, and I know you teach law students and think about, you know, that generation that's coming up. And we're watching them around the country struggling to decide these questions right now, particularly painfully, right, in the Justice Department. Oh, man, yes. And I don't even know how to think about, you know, the JAG attorney who's suddenly been conscripted into deportation, unwinnable, you know, masses of deportation cases or young attorneys saying, like, please sanction me, judge, so I can go home and sleep. I can't live like this anymore. Something is collapsing in on itself. And, you know, you mentioned your work representing the law firms that fought back. It was, for me, such a clarion lesson. And, you know, your amicus brief, which folks should read, you know, reminded us what it means to say no as a young lawyer. I would just love your thoughts on how you are talking to attorneys who are living on a different scene than the one you've been talking about. But this scene between do I cooperate? Do I leave? Do I stay? Do I try to be ethical in this shattered system? Or do I just like go, you know, protest in Minnesota? How are you getting them through this moment, particularly at the DOJ? I think it's a brutal question because there's a human dimension to it as well. You know, you have these young lawyers. They may have just gotten married and have young kids and have a mortgage and they need an income. And it's not like they're going to easily find jobs if half of the people leave the Justice Department. Of course, in some divisions of DOJ, half of the people or more have left. So I think, you know, I try to extend some grace to the individuals involved because I think they're in terrible circumstances. And I think most of them are in the category you described of people who are trying to do their best to preserve their integrity, to mitigate harm when they can, and to decide where their line is, you know, and whether it's been crossed. And I just have a lot of sympathy for people in that situation. But I don't think it should be lost on anybody that when you have the branch of the Justice Department that defends the United States and all civil litigation, the federal programs branch, and more than half of the people have left, that there's something that's deeply wrong. That's just deeply wrong. And the saddest part is that it ought to be a sense of pride. Every day I worked in that building and walked in that building, my two jobs there, I felt real pride that I was there. You want people to be feeling that every day. And I just think it's so sad that that's been drained out. It's just been drained out. But for the individuals involved, people feel like they're in a position where they can take a stand. God bless them. I'm glad that they do. I think it's important that they do. But I've got a lot of grace for people who feel like they just can't do that. I'm very sympathetic to that. I don't think of them as, in the main, exhibiting a degree of complicity that we should condemn. I just think it's too hard a situation for them. You know, one of my sons is an avid listener to this show, and I forget that for pretty much his entire life, all he's known is the Trump world. Yeah, that's true about my students now, too. Yeah. Yeah. And that the only court he's known is not the court I started covering 25 years ago. And I guess I find myself wanting to ask you about clerking for Justice Brennan. You clerked for him in 1984. You just mentioned Bowers versus Hardwick, which was a brutal setback for a long time. But I would love to hear you talk for a moment, if you would, about Justice Brennan, because I think we have a lot of listeners who think that, you know, he's consigned to someplace in history 500 years ago. And that's not right. What he did at the court was extraordinary and doable and could be done again And I love to hear just personally what you learned from him how you thought about the way he approached the law and maybe more importantly, how you think about his legacy at a moment when a lot of the things that he fought for couldn't probably get three votes at this court, and yet we press on. I consider it one of the great blessings of my life that I had a chance to clerk for Justice Brennan. And I clerked for him rather late in his career. He was only on the court a few more years after I clerked for him. And of course, if you think about the arc of his career, he was the real architect of the Warren Court's legal revolution. I wasn't alone in that, but he played a huge role in that and authored many of the Warren Court's most important cases and worked behind the scenes to find consensus that allowed the achievement of the rest of them. I mean, it was extraordinary. But by the time I was clerking for him, he was not in a position to do anything like that. It was the Berger Court, and it was thought to be a very conservative court. We had sort of no idea what a really conservative court was at that time, but it felt like it was back then. And Justice Brennan was in dissent a lot, but he was not bitter. He was always optimistic. He was always energetic, even at 79 years old as he was. He kept at it. He realized that there were victories to be had, that they might require him to trim his sails a little bit. It required maybe a lot of interpersonal diplomacy, but he was willing to put it in to find the victories he could find and to mitigate the losses that he suffered so that they weren't as bad as they might have been from his point of view. And he was just an optimistic person, even in those difficult circumstances. That's a lesson that I took from that was really important. And the other thing that I took from it that was really important was he had a vision of the Constitution. His vision was that the essence of our Constitution, you know, thinking both in terms of its structural components and its protection of individual rights, was to preserve and value and elevate human dignity. And when we think about how the Constitution should be interpreted, it should be through that lens. And that really animated everything he did. You know, people said, oh, well, that's, you know, just making policy as a judge. I didn't think that at all. There were things that he thought you couldn't do under the Constitution because the authority wasn't there. But he understood that there were things that courts could do that would preserve human dignity and would make a difference in the lives of the citizens and in the health of the democracy. And he was very committed to that. And he organized everything intellectually around those ideas. And I found it inspiring then. I find it inspiring now. Donald B. Verrilli Jr., former Solicitor General of the United States, serving from 2011 to 2016, and now a partner with Munger-Tolls and the founder of its Washington, D.C. office. Cases that he argued at the Supreme Court as SG included the Obamacare case, which he won, and Obergefell, which he won. And he's currently also a lecturer at Columbia Law School. Donna, I'm not sure this is the conversation I thought we were going to have today, but it is so emphatically the conversation I needed to have today. And I'm so grateful for you and the optimism and also the sort of hard-nosed bracing truth of what you bring, not just to your work in the law, but to the ways I need to think about the law every day. Thank you for your time. Oh, thank you. This was wonderful. Really appreciate it, Dahlia. Right. Before we close out this particular episode of Amicus, I have a special extra for everybody. Mark Joseph Stern has swung by on his way to the Amicus Plus Smokeless Cigar Bar, and he's brought somebody with him. It's a special guest. Mark is, of course, my Amicus co-host and a Slate senior writer. Mark, I'm so excited. Hi. Hi, Dahlia. And with you is our colleague and sorceress and amazing Slate staff writer, Sharin Ali, who's making her Amicus debut this week, joining the Amicus universe of superheroes, if you will. Hi, Sharin. Hi, super excited to be here. And we are all of us here to talk about a couple of big things. First, the extraordinary actions of one very, very special Florida jurist, Judge Eileen Cannon. And secondly, very related to, firstly, our new jurisprudence newsletter, Executive Dysfunction, which has just launched. So maybe we start with Judge Cannon and why she is back in the news this week. It's a transparency question. It's also a Supreme Court audition. It all gets an extra slick gloss of lawlessness because, you know, Eileen, come on, Eileen. Mark, can you, before we bring Sharon in with all the research she did this week, can you give us the bare bones of what happened this week? So Judge Cannon issued a new ruling that permanently prohibits the Department of Justice from ever releasing or sharing Volume 2 of Special Counsel Jack Smith's report on his prosecution of Donald Trump. Volume 2 would cover all of the classified documents case. That's the prosecution that Judge Cannon slow walked and then thwarted through a series of completely indefensible decisions. And she has now gagged a co-equal branch of government, the executive branch, from releasing it seemingly forever, even from sharing it with Congress. And of course, she said, oh, well, this shouldn't be controversial because the Justice Department agrees that it shouldn't ever release this report. But the Justice Department is controlled by Donald Trump. So of course, it agrees that this, I think, as we all can guess, like damning indictments of Donald Trump in the rhetorical sense and all of his lawless behavior around the theft and cover up of classified documents, of course, that should never see the light of day and nobody should ever learn about it in any great detail. And Shuren was tasked with, as we launch Executive Dysfunction, our new newsletter, tragically with having to go down the rabbit hole on this like deeply shocking story. And what you found is that even though everyone thinks this is super, super bad and unprecedented, it's kind of worse. Yeah, absolutely. So in this week's edition of Executive Dysfunction, I get into Judge Cannon's latest order and how by banning the Justice Department from releasing Jack Smith's final report, she's pretty transparently using her power to pander to President Trump. So I'll kind of explain why. If you take a closer look at her argument within this order, she's repeating the point that she believes that, you know, Smith was wrongfully appointed as special counsel. It's the same reasoning she used to dismiss the classified documents case two years ago now. And it's an argument that no other court has backed, but nevertheless, she makes it. And she also suggests that Smith was sort of manipulating the spirit of her previous order by even putting a report together at all, which is a pretty crazy thing to say, considering that, you know, making a final report on an investigation is something that is afforded to special counsels via federal regulation that Republican and Democratic administrations have honored. And so the icing on top of all of this is the fact that technically Cannon doesn't have jurisdiction to even rule on this question on the release of the final report. And that's because the Knight First Amendment Institute of Columbia University, they've been challenging her rulings on this case since last year. And just recently, it was taken up by the 11th Circuit Court of Appeals, which means that the question of the report has essentially changed hands, and it's plain and simple not in front of Cannon's court anymore. And so what all of this really suggests is that Cannon put out this order knowing that the president despises Jack Smith. We've seen the horrid truth social posts he's made about him in the past, and he doesn't want this classified documents final report to ever see the light of day. And so as you both discussed on Amicus Plus last week, Cannon's order conveniently came out shortly after rumors began swirling that Supreme Court Justice Sammy Alito might be retiring soon. By releasing this order, it kind of seems like Cannon has made a not-so-subtle play for that seat. And Sharon, it's especially, I think, brazen because Judge Cannon has all this reasoning where she's like, we have to protect Trump's reputation. Like we have to shield his good standing and presumption of innocence by gagging the Justice Department from releasing this report that might make him look bad. And I mean, to my eyes, that is not even really a legal argument. Like the presumption of innocence is a real thing. It applies at trial when prosecutors are trying to prove someone guilty beyond a reasonable doubt. It is not this sort of freestanding, free floating thing that a defendant can just assert as a reason to prevent prosecutors from revealing their findings. And in fact, as you said, like every past special counsel has issued a report. The report has been issued to the public, sometimes with redactions, but we get to see it. And that is just how the system works. Like prosecutors get to reveal bad things about criminal defendants that they discovered in the course of an investigation, even if they didn't secure a conviction against that defendant at the end of the day for whatever reason. So this just seems like special treatment for one for Trump that nobody gets to read bad stuff about him because he just deserves better. And I cannot read that as anything other than please pick me for the Supreme Court. I will do all of your bidding for all time. Yeah, absolutely. And to your point, you know, we've had former special counsels that have released reports that didn't result in a guilty conviction. I mean, you can look back to the Robert Mueller final report, which was released by a Trump Justice Department, by former Attorney General Bill Barr. So on all fronts, Cannon's order is just completely unprecedented and inappropriate, honestly. Sharyn, connect up what you just said and what you've been reporting to the ideas animating why we're doing the new newsletter and what kind of things that you're looking for when you pick stories and what kind of rabbit holes you're going to try to go down for us. Yeah, absolutely. So when we set out to create executive dysfunction, we wanted to help people cut through the noise by highlighting one piece of news that we really believe they need to know about. Especially right now, we have such a chaotic and overwhelming news cycle. It can feel daunting to figure out what to read and what to pay attention to. So executive dysfunction, we're going to be very intentionally doing that grunt work for readers so that you know one legal story that we think is particularly important that represents how the Trump administration is manipulating our laws. and or how the law is fighting back, because we recognize that ever since the president began his second term, it has just been a absolute deluge of lawlessness. And it's incredibly overwhelming. And executive dysfunction is there to kind of help guide readers through that chaos. And how do folks sign up? So you can go to slate.com slash dysfunction, or you can also find us on Substack through slate.substack.com. We're going to put all of that on the show notes, but we really want to encourage y'all who are fans and who are listeners and who have so many good questions to get involved and talk to us and talk to Sharyn about what it is that you want to see. We're coming to the end of this main episode. Mark, you and I are going to hang out for the bonus episode. Can you talk for a minute about what we are cooking up for the good people on Plus this week? Oh, we've got so much. We've got more federal judges slamming the Trump administration for violating court orders. Judge Brian Murphy shooting down the outrageous third country deportation policy and basically just jumping up and down, waving his arms, telling the Supreme Court all of the ways that the Trump administration lied to him and violated his earlier orders. We'll see if the justices care. We're going to talk about the U.S. Conference of Catholic bishops telling the Supreme Court that the Trump administration's ban on birthright citizenship is a hideous, immoral monstrosity that violates the most fundamental principles of Catholic teaching that one can imagine. And I think we're also going to touch on four justices' humiliation theater attending the State of the Union just to be insulted to their faces. Thank you, Mark. Thank you, Sharon. Our bonus episode is exclusive to our Slate Plus members. Sign up, please, at slate.com slash amicusplus to listen. Thank you for supporting our work. Your support, as you know, keeps the lights on around here. But it also really does mean we get to do cool new stuff like our brand new newsletter, Executive Dysfunction. Thank you, Mark. See you in a minute. Thank you, Sharyn. Congratulations. It's an amazing project. Thank you so much. And that is all for this episode. Thank you so much for listening. Thank you so much for your letters and your questions and your comments. Please keep them coming. We are reachable by email at amicusitslate.com and you can find us at facebook.com slash amicus podcast. You can also leave a comment if you're listening on Spotify or YouTube or rate us and review us on Apple Podcasts. Sarah Burningham is Amicus's senior producer. Our producer is Sophie Summergrad. Hilary Fry is Slate's editor-in-chief. Susan Matthews' executive editor. Mia Lobel is executive producer of Slate Podcasts. And Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week. Until then, take good care.