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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Coming up today, how would you like to have open primaries, non party primaries, in New York City mayoral elections, and other New York City elections, commissioned and paneled by Mayor Adams, is proposing it in this chaotic mayoral election year. We'll talk to the commission chair, Richard Buery, take your calls, pro and con, and your questions.

The New Yorker economics writer John Cassidy will be here today, with his sweeping new history book Capitalism and Its Critics: A History: From the Industrial Revolution to AI, very relevant to affordability in your wallets right now in a whole host of ways in addition to the fascinating layout of history that he does. On the lighter side of history, in our 100 Years of 100 Things WNYC Centennial Series, it's episode number 92, 100 Years of Yogi Berra, who was born 100 years ago today.

This will include clips from Yogi Berra's appearance on this show. We'll start here. Supreme Court justices have been speaking out recently, directly or indirectly, about their role in preserving democracy during the Trump administration. Politico reported on a speech by Justice Ketanji Brown Jackson, to a judicial conference in Puerto Rico where she used terms like threats and harassment, attacks on our democracy, with respect to the legal system.

She said, "The attacks are not random in that they seem designed to intimidate those of us who serve in this critical capacity." State legal affairs reporter Mark Joseph Stern noticed that report in Politico and wrote about it. We'll talk to him in a minute. It's not only Justice Jackson, most notably, perhaps, Chief Justice John Roberts, in a public appearance recently, in his understated way, you know how he is, also seemed to feel the need to reinforce the idea of judicial independence.

Chief Justice John Roberts: The only real political science innovation in our Constitution, Parliaments have been around for 800 years, and obviously, executives, is the establishment of an independent judiciary. Even places you think are similar to ours, like England. The judiciary in England was part of Parliament. They sat in the House of Lords, and because parliament was supreme.

In our Constitution, judges and the judiciary is a co equal branch of government separate from the others, with the authority to interpret the Constitution as law and strike down, obviously, acts of Congress or acts of of the president. That innovation doesn't work if it's not-- the judiciary is not independent. Its job is to, obviously, decide cases, but in the course of that, check the excesses of Congress or of the executive. That does require a degree of independence.

Brian Lehrer: Chief Justice Roberts, speaking in his native Buffalo, just last week. Justice Sonia Sotomayor, in another recent appearance, said she asked Canadian Justice Rosalie Abella, who was born in a refugee camp in Germany around the end of World War II, and became a prominent justice in Canada, how she would define the rule of law.

Justice Sonia Sotomayor: This was her response to me when I asked her what should courts do to protect it, she said, "They need to remain fearlessly independent, protective of rights, and ensure that the state is respectful of both." I couldn't think of a better answer than that one. That is really at the end what judges should do, but it's in the end of whatever citizens should do.

Which is ensure that the courts are fearlessly independent, that we understand that our obligation is to protect the rights given to us under the Constitution. These are not just made up rights. The Constitution is the structure of the norms that bind us as a society in America, but we also have to demand that all others respect both of these principles. That's what our function is.

Brian Lehrer: Justice Sotomayor speaking at Georgetown University in March. These all come as the Supreme Court is entering its annual end of session season. It's mid May now, when the big decisions get handed down. These remarks also come at a time of hundreds of lawsuits in the pipeline, challenging many of the blizzard of Trump executive orders and other actions that, in the eyes of many critics, are not only bad policy, but legally questionable.

Another recent Mark Joseph Stern article, for example, is called A Conservative Judge Set Up a Supreme Court Showdown Over Trump's El Salvador Gulag. Yet another starts with Trump was just dealt with one of his biggest defeats yet, and new legal questions just keep arising. How about the arrest of Newark Mayor Ras Baraka just over this past weekend, at an ICE detention center that the mayor was trying to visit in his city, with members of a congressional delegation who were not arrested?

How about this reported gift of a new Air Force One jet from the nation of Qatar, that the president would use as Air Force One, and which Trump would reportedly get to keep for personal use after he leaves office? Let's talk about some of these things. With us now is Mark Joseph Stern, Slate legal affairs writer and co-host of their Amicus podcast with Dahlia Lithwick. Mark, thanks for joining us today. Welcome back to WNYC.

Mark Joseph Stern: Thanks so much for having me back on.

Brian Lehrer: Let's begin with all those things Supreme Court justices have been saying. Is this unusual?

Mark Joseph Stern: It is somewhat unusual. I will say that now is the time before the Justices enter the final sprint of the term, where they sort of scatter and give speeches that usually address what's on their mind, if obliquely. We have the Chief Justice making these statements of fact about the independence of the judiciary that come across as a jab at Trump, because Trump is so hostile toward the judiciary right now.

Justice Ketanji Brown Jackson defending the district court judges who have been ruling against the administration. Justice Sotomayor recently, and in March, in the audio that you played, reiterating that courts need to be fearlessly independent, and also that lawyers need to fulfill their obligation to defend their clients' rights against government interference. I think there's a pretty clear and common theme emerging, that I would say is blunter than what we've seen in years past.

Still, the court remains very divided off along ideological lines, but those three are sending the signal that there needs to be some minimum guarantee of independence in the judiciary in order for everyone's rights, including the right to vote and participate in democracy, to be respected and honored by the other branches.

Brian Lehrer: Let's talk about some new legal questions from just this weekend, and then we'll get back to the Supreme Court. The arrest of Newark Mayor Ras Baraka in his own city, for trying to visit a newly reopened ICE detention center there. I mentioned it in the intro. Members of Congress were allowed in. Is there a legal question in that incident? [crosstalk]

Mark Joseph Stern: I think there very much is, yes. The reporting suggests that the mayor here entered the facility with permission and then was essentially turned away and expelled back onto public property, or at least the outer perimeter of the facility, where he was allowed to be, and only then was he arrested by agents. It was a surprise to pretty much everybody there, including one congressman who seemed shocked that this mayor was being arrested just for standing outside a detention center.

Mayors don't have any fundamental right to enter federal property. Members of Congress do have a right, under a federal statute, to enter and inspect those facilities at any time they wish. It looks a lot like the mayor here had followed orders, had not, in fact, trespassed. He left when he was told to leave, and then he was arrested. That really looks like a retaliatory arrest because of the mayor's free speech and efforts to shut down the facility by using state and local laws to argue that the facility is operating illegally.

It really looks like federal agents, and perhaps higher ups, targeted him because of his speech, and because of his activism against the facility. If that is indeed the real reason for his arrest, rather than this dubious trespass charge, that raises a very serious First Amendment violation. He may well be able to defeat these charges in court well before they get anywhere close to a jury.

Brian Lehrer: We're going to hear Ras Baraka on the station tonight, as part of the New Jersey Democratic gubernatorial hopefuls debate, we'll see how it comes up in that context, co-moderated by WNYC's Michael Hill. That'll be on WNYC tonight, at 7:00. Also, though, the ICE agents there, I read, wore masks. What's the law on that? If they are public officials, protesters wearing masks, even when peaceful, is a policy debate right now.

Why can law enforcement officials shield their identities from the public who they're supposed to be accountable to?

Mark Joseph Stern: It's an exceedingly good question. Unfortunately, the law here is fairly ambiguous. The courts generally will defer to federal agents and arguments by the government that these agents need to protect themselves by concealing their faces. There is no extraordinarily clear guarantee to the public that federal agents have to show their faces. Again, there's a lot of vagueness here.

For a long time it's been a tradition in this country, as I would say it is in most liberal democracies, that armed agents of the states are not permitted to conceal their identities in order to conduct their work in secret. That sounds a lot more like a Gestapo or a secret police tactic than it does agents of a free state. These individuals who committed these arrests, who have been swarming the streets in other cities arresting migrants and undocumented people, they are afraid of being identified through facial recognition technology, primarily.

That technology has grown in recent years and some activists have started to create databases of known agents of ICE, DHS, and other federal law enforcement agencies. These individuals are just trying to avoid detection and identification, in part because they may realize that they will be stigmatized and shamed in their private life for committing what looks like unlawful and retaliatory arrests, but it's deeply troubling, and I do think that this should be a priority for a future Congress.

This is something that Congress can legislate. This is something that Congress should make clear that agents should not be allowed to conceal either their faces or their badge, and identifying numbers and names when they're committing these arrests. Again, that's really something that you would expect from the Gestapo. It's not something that you should see in a civilized Western country.

Brian Lehrer: Is this new with the Trump administration, or have they done it in this country routinely, in any way?

Mark Joseph Stern: It's fairly new. It's something we saw in the first Trump administration as well. I remember reporting on Black Lives Matter protests in DC, and a lot of agents there from the federal government had covered their badges, had covered their names, would refuse to even say what agency they were from. Even then, though, most of them were not wearing masks, and this was during a high point of COVID.

This masking thing seems to be a policy that the Trump administration has instituted. I don't know if it's a formal policy. I would actually be surprised if it is written down, but it seems like there was a memo that went out, that immigration enforcement agents should be covering their faces with masks, or these so called gators that go up to their eyes, to prevent anyone from identifying them.

I think it's an effort to show that they are unaccountable, that there's nothing anyone can do to fight them, that they're so above the law that we don't even get to know their identity and they can commit their arrests in total secrecy and anonymity.

Brian Lehrer: How about this Air Force One jet Trump is reportedly going to get from Qatar, and then it becomes his personal property after his administration? Ethical issues are being raised, but so are legal ones. Right?

Mark Joseph Stern: It's the same genre of legal issues that we faced in Trump's first administration with the Trump Hotel, where he would essentially sell rooms to foreign heads of state and foreign diplomats, rent them out at above market rates and personally profit from them. The problem there is that the Constitution prohibits the President and other officers of the United States from receiving foreign emoluments. An emolument is a kind of old timey 18th century term for gifts, presents, things of value.

There's been so little historical trajectory here, tradition of presidents accepting these kind of gifts, that it's largely untested in the courts. We did not see James Madison, Theodore Roosevelt, FDR, or John F Kennedy accepting gifts of immense value from foreign heads of state, so we didn't really see courts dealing with the subject matter. Suddenly, Trump is pressing this in a big way, making it a major issue.

He had mixed record in the courts last time around, that we never got a decision from the Supreme Court about whether the President can just ignore this ban on foreign gifts from foreign heads of states. Now, this might be the test case that pushes this all the way to the United States Supreme Court, because if there's ever been a clear cut violation of the emoluments clause, surely, this is it.

Brian Lehrer: We had a guest last week, on Trump's big profits from the crypto business that he's pursuing simultaneously with his presidency, although officially, as he points out, his sons manage the company. The reporter said he's immune from conflicts of interest law as president. Immune from conflicts of interest law as president. Do you know that to be true as a legal analyst?

Mark Joseph Stern: Well, I think the problem here is one more of enforcement than of absolute legal immunity. For instance, the issue with these emoluments is, in order to get a federal case, somebody has to have standing to sue, somebody has to be injured. Who is injured when the president illegally accepts a $400 million plane from another country? It's impossible for any one person to say, "That is hurting me, so I can go to court and sue." It's a similar issue with all of these other conflicts of interest.

The only real enforcement mechanism right now is the federal judiciary, and it's very, very difficult for someone to be able to prove that, because Trump has some conflict of interest, that you, the plaintiff, can go to court and say, "This is hurting me and I need to redress." Now, I will say there are, within the executive branch, these internal mechanisms to try to check the president and other officials who do participate in activities that seem like an ethical conflict.

The problem is Trump has dismantled all of those, and I suspect this is what this reporter was talking about. Trump has, through a series of firings and executive actions, completely paralyzed the entire infrastructure within the executive branch that traditionally serves to ensure that the president is not engaged in some kind of unethical behavior. With those gone, he is effectively immune. With the difficulty of proving a case in federal court against him, I think he's unlikely to see consequences for these actions, at least for a very long time.

Brian Lehrer: Yes. The big issue there may be less legal and more about the image that he's trying to project, of him as a king. That he gets to take a gift from another country. Never mind that that other country might be looking for favors in return. That sounds like corruption on its face, as it would apply to a lot of other people. Then, also, he gets Air Force One to keep it afterwards.

It's unclear to me from the reporting whether it would go to his presidential museum and sit there, or whether he would actually be able to fly around after his presidency, in Air Force One. We know the kind of thing that conjures up and how it relates to other things that people are objecting to, too, like Trump posting about himself, long live the king, et cetera.

Mark Joseph Stern: Can I just make one other point about that? I mentioned that he's done these firings against these officials who would normally serve as a check on his abuses of power. I think that, in addition to having a practical effect of just immunizing him against consequences, it also sends the message that he's the king, that he has absolute authority over the entire executive branch, something that has not been true of any other president, going back to George Washington.

He has laid claim to what legal theorists call the unitary executive theory, which is this idea that the president really is kind of a king, that he wields absolute universal executive authority, that nobody can stand in his way, and that even these independent federal agencies, even the Federal Board of Reserves, could not prevent him from doing unethical things, even breaking the law outright. That is as much about image as it is about practical consequences. He is saying, "You can't stop me," and that is the essence of being a king.

Brian Lehrer: The big Supreme Court decision last year, granting Trump or any president immunity from prosecution for things that they do in their official capacity as president. The question there, for things that come up in the future, will be what was done in one's official capacity as president as opposed to for one's private interests, like trying to get reelected or trying to make money. Does that apply to the airplane thing, if it is illegal?

If it would, on paper, be illegal to take that gift because it's an official act, accepting it from Qatar to use as Air Force One during his presidency. Does that Supreme Court ruling from last spring affect the legality of this?

Mark Joseph Stern: I absolutely think the Supreme Court would say he's immune from prosecution for accepting this plane, even if it's illegal, even if it's constitutional, and a violation of the Emoluments clause. I think that under that deeply misguided and unfortunate Supreme Court opinion, this would be considered an official act. This would be considered negotiations with a foreign country.

This Supreme Court has given Trump a lot of leeway and a lot of discretion in how he chooses to negotiate with other countries, even for potentially personal gain. That's true of so many other issues here, where the Supreme Court has just sort of given Trump a blank check. To me, that's the other side of the immunity decision that's been so devastating for the rule of law.

It's not just that the Supreme Court gave Trump this sweeping impunity from prosecution, but it also, in that decision, embraced the unitary executive theory that I was talking about. It said, "Oh, well, when Trump interfered with the Justice Department, threatened to fire people, and forced investigations into claims of election fraud that were bogus, all of that was just fundamental power of the executive that he can traditionally wield, and is therefore are immune from being prosecuted over."

I think that language has proved to be really, really noxious, and to have a really unfortunate side effect of just bolstering Trump's claims. Now, to be able to seize the Justice Department, which has traditionally had a lot of independence from the president, to be able to claim that he just controls the entire executive branch, and to say, "Sure, I'm going to use the Justice Department to investigate my perceived enemies, I'm going to use the Justice Department to prosecute people I don't like over their freedom of speech."

That all was laid out as a blueprint in the Supreme Court's immunity decision, and he is just taking up their offer to bring it to its logical extremes.

Brian Lehrer: Listener writes this text, "I can't accept a gift at my job for over $25, but the President can get a plane." I don't know what that person does for a living. [chuckles] Maybe they're a journalist or maybe they're a teacher.

Mark Joseph Stern: What's incredible, too, is that executive branch employees, people who work at these federal agencies, people who work in the White House even, still do have these prohibitions against conflicts of interest, against unethical behavior. They can't accept gifts. They have to report even minimal things of value that they receive from others. They certainly could not accept a plane from a head of state in another country, but Trump just gets to decree that he is above it all.

I just want to note-- This language is starting to appear in Justice Department filings, this king-like language, about how he's a monarch. The Justice Department has started saying that he has the mandate of the electorate to do whatever he wants, to engage in all of this unconstitutional, unlawful behavior, as though winning an election literally puts you above the law and gives you the authority to do something that the laws of the United States stand against.

Again, I just think a lot of that springs from the Supreme Court giving him this blank check and continuing to, in a number of cases, allow him to bend, twist, exceed the limits of the law, as we have always known and understood them.

Brian Lehrer: Listener writes in another text, "Jimmy Carter sold his peanut farm because he didn't want to appear like he was partial to farmers and thought it was a conflict of interest. How far we have gone is so sad," writes that listener. Other listeners, what questions do you have for Slate legal affairs writer and podcast host Mark Joseph Stern? 212-433- WNYC, 212-433-9692.

On some of the particular cases we've been talking about so far, and we're going to get to some others, the state of the rule of law generally now, as referred to, perhaps, by Justice Sotomayor in the clip of her that we we played, or the fact that Supreme Court justices directly or indirectly are speaking recently about the importance of judicial independence and the rule of law.

When we come back from a break with Mark, we're going to return to the question of the Supreme Court, those clips that we played, and some of the cases that are making their way up the chain, that they may hear very, very soon, that may be really important in determining the next three and a half years of this administration. 212-433-WNYC, 212-433-9692 call or text, and stay with us.

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Brian Lehrer: Brian Lehrer on WNYC as we continue with with Mark Joseph Stern, Slate legal affairs writer and co-host of their Amicus podcast. We talked in the intro about some remarks by Supreme Court justices recently. The one Mark wrote about was from Justice Ketanji Brown Jackson, speaking to a judicial conference in Puerto Rico where she used terms like threats and harassment, attacks on our democracy with respect to the legal system.

Said the attacks are not random and that, "They seem designed to intimidate those of us who serve in this critical capacity." Mark, on your podcast, you discuss what you call the necessity of this full throated response from a sitting justice. Why do you think it's necessary or even advisable, if Supreme Court justices want to avoid like they're taking sides in politics and further polarizing people into camps that threaten the common understanding of the rule of law that Justice Sotomayor was referring to in her clip?

Mark Joseph Stern: Yes, neither of these justices is saying anything political, and neither was Chief Justice Roberts. Again, what Roberts said was really a statement of fact. You could hear it in an 8th grade civics class. Yet, because of the context all around us, it sounded like a rebuke to Trump. I think Justice Jackson's remarks were probably the most important because she was reaching out and directly speaking to district court judges.

These are the trial judges who are on the front lines of all of these cases against Trump. Now, more than 200 lawsuits against the Trump administration. Justice Jackson was a district court judge for nearly a decade, before she was elevated. She really understands, I think, that the struggles and the difficulty of being a district court judge-- it's your name and your name alone on the ruling. The headlines mention you.

You are very much the person who gets the blame, the harassments, and all of the horrible things that are being directed at some of these judges who are now ruling against Trump, she herself faced when she was in that role. She was speaking from the heart, speaking from experience, I think, to say, "I understand what you're going through and I understand how difficult it is, but you have to remain courageous."

You have to have backbone, because the nation really relies on these frontline judges to be the first to uphold the rule of law. They have this really important power to issue restraining orders, to issue injunctions to stop the administration dead in its tracks. That comes with a lot of high profile accusations, harassment, and increasingly, threats from the public. We know that a lot of these judges have had to beef up their security recently, that a lot of Trump supporters are sending them threatening letters, even death threats.

That's no surprise, because Trump himself has started regularly tweeting about them, threatening them with impeachment. Republican members of Congress have introduced articles of impeachment against some of them. I think what Justice Jackson wanted to reflect upon there was, it's an incredibly difficult job. None of the conservative justices on the Supreme Court were district court judges, so they don't really know what it's like, but she does.

She was urging them to stay vigilant and stay courageous, because if they yield to this kind of pressure, then really, the rest of the country has no hope.

Brian Lehrer: Justice Sotomayor giving a speech to lawyers, this was quoted in The New York Times the other day. She said, "If you're not used to fighting and losing battles, then don't become a lawyer. Our job is to stand up for people who can't do it themselves right now. We can't lose the battles we are facing." That's along the lines of what you were just mentioning, right?

Mark Joseph Stern: It is. I think this comment also touches on the Trump administration's attacks on law firms that have represented or hired people who Donald Trump doesn't like. Trump has issued a series of executive orders targeting these law firms, attempting to really strip them of any business with the federal government, stop them from representing clients who have cases involving the federal government, bar them from federal property.

It would represent a huge hit to their bottom lines. Some firms have capitulated. Some firms have struck deals with Trump to do pro bono work in support of his administration. Other firms have stood strong. Firms like Jenner and Block are refusing to yield, refusing to capitulate to these demands, and suing and winning in federal district court, which is a bit of a through line here.

I think that Justice Sotomayor was, here, trying to reach out to those lawyers who are facing this very difficult decision, maybe lawyers who are at firms that have caved, or lawyers at firms that are fighting, but really struggling, because it's very difficult to take on the federal government and the president himself, and saying, in so many words, and implicitly, this is what being a lawyer is for. This is what it's all about.

If you can't take on the federal government when you yourself are being attacked, why should your clients trust you to represent their interests? Why should your clients trust you to zealously advocate for their defense if they are facing all of the force, might, and wrath of the federal government? I thought that was a very powerful address, not just to judges, which are, of course, just a tiny slice of the profession, but to the entire legal profession, to say, you need to stand strong and defend the rule of law.

Again, I don't think that's really political. I do think it's about whether or not we will have an independent legal profession in this country that can stand against the government when individual rights are being threatened, or whether the president can just wield all of his powers to force the legal profession to fall into line and to abandon the defense of individuals who the current sitting president just happens to have a vendetta against.

Brian Lehrer: One of your podcast episodes from just the other day had the headlines, Lawyers Who Capitulate to Trump Now Have Something Else to Worry About. What was that?

Mark Joseph Stern: This was about one of those decisions involving a law firm that was attacked by Donald Trump. Beryl Howell wrote a really, really extraordinary decision just castigating the Trump administration for attacking these law firms and attempting to take away their ability to represent clients facing the federal government, and saying, this is an existential crisis for the legal profession. I'm not quoting Judge Howell here, but I think this is a paraphrase.

She was saying this is a real crisis, because the legal profession cannot survive if it just gives in, caves, and says whatever the President wants, he gets. We have a varied legal profession in this country. Big law firms aren't all of it, but if the President can go after them with all of their billions of dollars, all of their powerful clients and partners, and the President can win against them, they will not be the last to face his attacks.

He will go after more lawyers, more firms, people who have fewer defenses, less of an ability to protect themselves against political retribution. Judge Howell made it very clear that she has a lot of scorn for firms that are capitulating, that she does not believe that is the right move, that she thinks it's extremely dangerous to the Sixth Amendment right to counsel enshrined in the Constitution.

That lawyers at those firms and those firms themselves, they should be wary of how their reputations will emerge from this era and how history will remember them. She was very much writing not just for the current moment, but for history, and saying the firms that stand up to Trump will be remembered as the good guys. The firms that capitulate will be remembered as incredibly weak and really undeserving of their self proclaimed position as defenders of democracy and individual rights.

Brian Lehrer: On this question of judicial independence, here's a text from a listener kind of on Trump's side of this. This says, "People are getting upset, one, when the courts exceed their authority by de facto acting as the legislature, not simply calling balls and strikes, as John Roberts called it. The courts are legislating because the legislature isn't. It's gridlock. Two, MAGA is upset with the courts because courts are restraining this administration from exceeding its constitutional authority."

Well, this makes it not sound like it's on Trump's side, but "Restraining this administration from exceeding its constitutional authority with its deliberate power grabs, while the GOP fails its Article 1 duty to protect its constitutional authority from executive trespassing." I don't know, that struck me as one one on either side of that. The beginning of that does kind of frame the Trump argument, right? People are getting that the courts exceed their authority by de facto acting as a legislature when the legislature isn't.

Mark Joseph Stern: I think that you could spin that either way, right? You could say that these district courts are overstepping their bounds by issuing these very broad restraining orders and injunctions against the Trump administration. I think if you look at what they're actually doing, a lot of it is trying to defend basic principles that the Congress is supposed to be on the front lines of defending, but unfortunately, is just absent from the battle right now.

For instance, a lot of these cases are about the Trump administration's effort to defund or shutter agencies that were established by Congress, that have a statutory mission, that have been funded through congressional appropriations, that are supposed to be operating and cannot, because this administration has shut them down or sapped them of all of their appropriated funding.

The probably core power of Congress is to control the federal treasury and the power of the purse, to decide what agencies shall be created and which shall be funded, and how they will be funded. The Supreme Court just reaffirmed that principle a few years ago, in a major case upholding the CFPB, the Consumer Financial Protection Bureau, which is one of the targets of Trump's ire.

What these judges are really doing is something I think Congress should be doing, which is saying, you cannot shut down this funding unilaterally. This money has been appropriated. You cannot fire all of these civil servants and purge this entire agency so that it is not able to fulfill its statutory mission. Ideally, we would have Congress doing investigations, issuing subpoenas, passing new laws to make it very, very clear that the money is still there and must be spent.

Congress is controlled by the same party as the president, so it isn't doing that. I don't think there's anything inherently suspect or wrong about the independent third branch, the judiciary, stepping in to do it instead. This goes back to what John Roberts was saying. The judiciary is independent for a reason. It's not supposed to be captured by one party or another, by any particular special interest. What these judges are doing, it might look like they're doing a lot.

In some cases, they are. They're exercising a lot of authority, but they are trying to uphold some fundamental constitutional principles that Trump is very, very eager to simply erase.

Brian Lehrer: One more question from a listener. Edie in Manhattan, you're on WNYC with Mark Joseph Stern from Slate. Hi.

Edie: Hi. Thanks for taking my call on this beautiful day. I have a question. Well, given this blizzard of cases against the administration, what criteria does the SCOTUS use to decide whether to take a case or not? I thought one of them was that if there's two lower court decisions that are the same, that then they would say it's been decided, but they seem to be taking every case, almost. What criteria did they use?

Also, given what you just said, can't they just say that? I think they've done this on a couple of cases, but this has to go back to Congress. This is not for us to decide. Congress has to decide this.

Brian Lehrer: Mark?

Mark Joseph Stern: Such a great question. Traditionally, yes, the Supreme Court will take a case when lower courts are split on a question of law, because, of course, we want to have uniform federal law across the country. The Supreme Court will also usually take a case if a federal statute has been struck down. That's a pretty major act, and I think the Supreme Court feels it has an obligation to render the final word on that.

A lot of what we have been seeing lately from the Supreme Court are not traditional rulings. They are what we call shadow docket decisions. These are decisions in cases that were not fully briefed, where there were never oral arguments held, where it was all done in a sort of fly by night way, all on the papers, and there's some emergency that's facing the justices. They feel they need to step in immediately. Now, sometimes there is a legitimate emergency.

For instance, when the Trump administration was allegedly planning to put migrants on planes to a prison in El Salvador without affording them due process, the Supreme Court felt it needed to step in very quickly, and issued a decision over the shadow docket, halting those deportations. That was a very good thing. There are other cases where it seems like there really is not an emergency, and yet, the Supreme Court steps in any way to give Trump a win.

A great example of that is just last week, the Supreme Court lifted an injunction against Donald Trump's purge of transgender troops from the United States Armed Forces. There was no emergency there. The United States government has not been able to prove that having transgender service is any problem for anybody, that it undermines military readiness or unit cohesion. This is all rooted in pretty flagrant bigotry against transgender people.

Brian Lehrer: To be clear, that was not a final ruling. That was allowing Trump to continue with the trans ban while the case gets argued up through the pipeline, right?

Mark Joseph Stern: Exactly right. That's what makes it a shadow docket decision. The court didn't explain itself, and it didn't hear oral arguments or anything like that. It just said, "You can start purging transgender people from the military," as these cases make their way up to the pipeline, but because of that order, by the time the Supreme Court actually hears and decides this case, which could be a year from now, maybe even longer, all transgender people will have been removed from the military.

There will be no one's rights really left to defend. That is an example, I think, of how the Supreme Court can manipulate the shadow docket to effectively issue what feel like final decisions under the guise of issuing emergency orders.

Brian Lehrer: How about this one? You had a podcast episode just the other day. A conservative judge set up a Supreme Court showdown over Trump's El Salvador gulag, as you call it. That was a Trump judge, right?

Mark Joseph Stern: Yes, that was. This was a very good, very strong decision from Judge Fernando Rodriguez Jr, an appointee for Trump's first term, saying that the president cannot summarily deport Venezuelan migrants under the Alien enemies Act of 1798. I really appreciated this, in part because it came from a Trump appointee. It was also a very conservative opinion, so this was a meticulous analysis of the law as it stood.

When this statute was passed in 1798, it was very much originalist and textualist, and all of the things conservatives like. The judge actually compiled an appendix of dozens of examples of people like James Madison, George Washington, and Thomas Jefferson, using the language of this statute to show that it was never meant to apply to migrants, that it was never meant to apply to people who have come to this country seeking asylum, seeking jobs, or better life.

That it is a wartime law that only applies to invading armies or invading military that are trying to seize US territory. In that respect, it's kind of a narrow decision. It's very much based on how language was used in 1798, but I appreciate that. I think it sets up a fight at the Supreme Court over this language, and it gives the conservative justices a very good reason to say, "No, Trump can't do this."

This is not what the Alien Enemies act was passed to do. This does not allow for summary deportations of migrants. If you want to deport people who are in this country illegally, you have to go through the normal legal process. Yes, that can take years. Yes, it can be burdensome, but that is what Congress has commanded. There's no secret shortcut around it that Trump can just decree.

Brian Lehrer: In our last minute, what kind of end of session season are we looking at between now and the end of June?

Mark Joseph Stern: On Thursday, the Supreme Court will hear arguments over Trump's attack on birthright citizenship. His effort to strip citizenship from the children of many immigrants, immigrants, visa holders, and undocumented people. I tend to think the Supreme Court will side against Trump on that. The Constitution is incredibly clear that those children receive birthright citizenship. We actually fought a civil war over this question of birthright citizenship, and settled the issue more than 150 years ago.

I would also note the Supreme Court still has its own agenda apart from Donald Trump. It has a bunch of religion cases that it wants to use to further infuse religion into public life, to further allow religious establishment in public school, to allow religious public charter schools. It has a lot of other issues where it's pursuing its own conservative agenda. Sometimes the Trump administration supports it, sometimes it disagrees with it. But we have to remember independence is a double edged sword.

Sometimes it means the Supreme Court is going to side against Trump. Sometimes it means the Supreme Court is going to side against public opinion and deliver a major conservative victory. What I will be watching is not just those cases that directly involve Donald Trump, but the cases that show where this Supreme Court conservative majority is heading, whether it heeds public opinion, whether it is relentless and aggressive in its pursuit of its own agenda.

Just remember, these justices will be serving for life. They've got decades ahead of them. Whatever our ephemeral conflicts of the day are, they've got bigger issues on their radar and they will continue pursuing those for years after Trump has left office.

Brian Lehrer: Mark Joseph Stern, legal affairs writer for Slate and co-host with Dahlia Lithwick of their legal affairs podcast Amicus, thank you so much for all this insight today.

Mark Joseph Stern: Thanks so much.

 

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