This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
On this Saturday’s Amicus podcast, Dahlia Lithwick convened her annual end-of-term breakfast table to discuss the big themes, controversies, and surprises that mark the end of the Supreme Court’s term. She was joined by Slate senior writer Mark Joseph Stern; Mary Anne Franks, a professor at the George Washington University Law School; and Steve Vladeck, a professor at Georgetown University Law Center. An excerpt of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: I wanted to gauge where everyone’s head is at. We’ve all had time to read the immunity decision a few times, and the effect is seismic. But I’m just sitting with what this decision signals about how six members of this Supreme Court look at the Trump presidency, the events of Jan. 6, 2021, the threats Trump speaks aloud every single day, Project 2025 and the separation of powers. We got hyperfocused in this media cycle on Donald Trump himself, but I would like to talk about what all this says about the court.
Steve Vladeck: When we did the breakfast table last year, we talked about how the word of the term was arrogance. I think we’ve gone from arrogance to DGAF. That is my term for this term. Not just because of the Trump case, but because of the message the court has sent, in almost all of its major rulings, that it just doesn’t care about how half the country perceives it. In the Fischer case, for example: that its decision is going to be held out as some kind of massive victory and exoneration of the Jan. 6 defendants. The court doesn’t care, in the administrative law cases, that it’s going back on things that have been taken for granted for 30, 40, 50 years. And it doesn’t fear any retribution. What’s remarkable to me too is that sometimes the other five conservatives are going too far even for Justice Amy Coney Barrett.
Mary Anne Franks: I think that that’s largely right, but I think my takeaway mostly was, when you look at decisions like Rahimi and the challenge to mifepristone, you also see the court avoiding its own messes. It’s saying, We’ve basically created, through Bruen and through Dobbs, all of this havoc, and when the natural and entirely predictable consequences of that havoc start to appear, the court says, Well, that’s obviously not what we meant. Clearly, people are getting this wrong.
Mark Joseph Stern: I sense that we are feeling the lack of any true swing justice in a lot of different ways. There’s no Justice Kennedy there who could sometimes moderate the conservatives. There’s certainly no Justice O’Connor who could build these bridges or give the conservatives reason to tone down their rhetoric. And Chief Justice Roberts looked like he was emerging as a swing vote, toward the tail end of the Trump years, in part because there were a few cases, like the census citizenship case and the DACA case, where he sided against the Trump administration—largely because of its sloppy lawyering and poorly concealed lies. But now I feel like there really is not any justice who sits in the middle, who can legitimately be won over by the liberal bloc in any meaningful way.
Steve Vladeck: I think the real sort of individual story of the term is: John Roberts is done trying to be an institutionalist. Look back to 2019 and 2020, when Kavanaugh was early on the court, when you still had Justice Ginsburg with the other three Democratic appointees. We saw Roberts—who for much of the first 15 years of his time on the court was conservative but not crazy—actually trying to keep the court together, at least to some degree. He was writing narrow opinions, trying to keep everyone onside in the Trump cases in 2020 especially. And I’m struck this term by how much he just didn’t care.
And you see this in his opinion in the immunity case. You see this in his opinion in the Chevron cases, Loper Bright and Relentless. You see this in his opinions in the Colorado ballot case and in Fischer. I mean, there’s opinion after opinion where, instead of trying to actually build any consensus, John Roberts just basically threw his lot in with the Thomas/Alito/Gorsuch wing.
And that’s a really big deal because if Roberts isn’t going to be an institutionalist, who is? Who, other than Barrett, is going to even tepidly stand up for the court’s relationship with the rest of the government and with all of us? Among that bloc of justices, it’s really striking that John Roberts has gone all the way over to this side, but I think it’s undeniable.
Dahlia Lithwick: I think the story of the term is: John Roberts becomes a MAGA justice. He just becomes in line with where Thomas and Alito have been all along. It’s almost like he got tired of being that fourth lone guy who would hive off and vote with the liberals. He wants his court back, and so he’s gonna take it back by being them. And I think it’s worth drawing out really explicitly that whatever Barrett is doing, I don’t see it necessarily as institutionalism. It’s a kind of course correction, error correction, but I don’t think she’s, like, lying awake at night, fussed about the institutional regard for the court. And we imputed that to John Roberts for years, for decades. And I think that’s gone.
The other turn is the court giving itself power to decide all things. There’s nothing they’re not experts on. The Supreme Court is the policymaker for all policies in the country, and the conservatives are really comfortable just announcing that they’re now experts on clean water and air pollution. This is just politics by another name. The court has structurally arrogated all this power but feels no shame. They are perfectly comfortable telling us how we’re going to regulate drugs now.
Mary Anne Franks: It is an amazing move. On the one hand, you have this degradation, this contempt for actual expertise, right? In any number of fields, whether that’s history or science or medicine. And at the same time, the court is also putting itself in the position to say, Well, none of these experts know anything, and the court gets to decide everything.
And it’s been more embarrassing this term than most because, of course, this has been the term where the conservative justices have made mistakes about what chemicals they are talking about, or how to even refer to certain types of procedures, right? They expose the fact that they don’t know what they’re talking about. So, yes, you can never get consistency from the far right of the court. I always think about, back in 2016, when the election results were looking uncertain and Trump was asked: “Are you going to respect the outcome of this election?” He said he would respect it “if I win.” And I think that has defined this entire moment. We’re living in it. It’s where the conservatives say: I will respect whatever it is, that science, expertise, law—but only if we win. And that’s it.
It’s really depressing for me to have to confront that because, as law professors, we like things to be interesting and complicated and not just naked power grabs. Whatever rule they endorse seems to be set up purely for the advantage of the far right. And as soon as it might be used by the other side, they will find a way to say: We didn’t mean you guys. I think that that’s one of the most incredibly depressing things about the cycle, even though we’ve seen it happen for some time.
But it’s so clear now to say what the court is doing. It’s saying: We own everything, and we will make sure that we are the final arbiters. Not just of law, but of truth itself, all the time, over and over again. And they have no shame about that. There’s no shame in these justices saying, We can do this better than experts. We can do this better than scholars. We can do this better than scientists because we are somehow divine.
Mark Joseph Stern: I just keep going back to Neil Gorsuch, in his opinion blocking the EPA’s plan to limit ozone pollution, repeatedly mistaking nitrogen oxide—which is the pollutant that causes smog—with nitrous oxide, which is laughing gas. That confusion resulted in an opinion that repeatedly purports to limit the EPA’s ability to regulate laughing gas in upwind states. If you needed a clearer illustration of why the Supreme Court should not be seizing these deeply in-the-weeds policy decisions for itself, you couldn’t find a better one than that.