Street Roots
News
COVERING THE COURT
Journalist Dahlia
Lithwick says
Justice Scalia’s
philosophy
o f originalism is
a farce - and so is
judicial activism.
She shares her
P H Ö T O C O U R T E S Y O F D A H L IA L IT H W IC K
Slate senior editor Dahlia Lithwick covers the US. judicial system for the magazine.
BY AMANDA WALDROUPE
justice?
thoughts about
what’s next for the
Supreme Court.
power struggle.
STAFF WRITER
D.L.: I think the most notable one was the
ahlia Lithwick, a senior editor for Slate,
Obama immigration executive action. The court
writes about the Supreme Court and the
split The executive action never went into effect
United States’ judicial system. But this )
The other big one was what would have been
isn’t the leaden copy of briefs and summaries. Hobby Lobby 2.0, which would have been a huge
This is jurisprudence for the common man, with
religious liberty case. The Supreme Court kicked it
insight into the more fascinating consequences of
back to the lower court and basically said, “Work it
the highest court’s decisions, process and political o u t” There were a whole bunch of other cases we
interference.
didn’t get to. One person, one vote was on the line
On Feb. 25, Lithwick gave the keynote address
in Texas. There was a California case about
during the ACLU of Oregon’s Liberty Dinner,
financing public-sector unions. They all just fizzled.
arguing, that public engagement and resistance to
. A.W.: It is unprecedented for a president to
the Trump administration is a key component to
nominate a justice for the Supreme Court who was
energizing the country’s courts system and
not considered by the Senate, as what happened with
enabling it to be a meaningful check of the
President Barack Obama’s nomination of Merrick
administration.
Garland. What ramifications do you think we will
Before her address, she sat down with Street
see because .of that in the future?
Roots to talk about the politicization of the
Supreme Court, the nomination of Neil Gorsuch,
D.L.: I think you will never again see a
and the role the judicial system will play during
president get someone seated unless their party
the next four years.
controls the Senate. What that means is that
every single confirmation hearing will be a
A m anda W aldroupe: You’ve said that this is
hostage situation.
not a typical year for someone who covers the
D
Supreme Court as a journalist. How so?
D ahlia Lithwick: I can carbon-date i t It’s Feb.
13, 2016: That is the day that Justice (Antonin)
Scalia died. No one expected him to pass away.
Nobody expected that if there was a vacancy, it
wouldn’t be filled. I think the 2015 term, which
ended in 2016, if Scalia had lived, would have
been the blockbuster term for the ages, if you
look at the cases that were docketed. They all sort
of fizzled into 4-4 splits. And there were several
that the court didn’t fully decide.
A.W.: What cases suffered from the lack o f a ninth
A.W.: And a political situation, which makes the
Supreme Court a political ball that gets tossed
around.
D.L.: Yep, it’s just a football now. If you look
historically, we’ve had nine presidents seat 13
different justices over the years, and in an
election year, there’s no precedent for what just
happened. As of now, the precedent will be that
you can never seat anyone in your third year. By
the end of October, you were hearing Republicans
like Ted Cruz and John McCain say, even if Hillary
Clinton wins, we’re going to go four years without
a confirmation hearing. We’re just in a full-on
A.W.: Is Neil Gorsuch going to be the newest
Supreme Court justice?
D.L.: I think Democrats in the Senate are
making a decision about w hether this is the hill
they want to die on.
I think the thing that happened that stiffened
their resolve (on voting against confirming Jeff
Sessions as attorney general) was the airport
revolution that happened when all the lawyers and
all the judges pushed back. They looked around
and said, “Holy crap, rule of law really m atters to
the American people.” I think that really
emboldened them to fight the nomination of Jeff
Sessions.
I suspect they’re trying to figure out if Neil
Gorsuch is going to be worth a filibuster. It is
filling Scalia’s seat. It’s swapping out a
conservative for a conservative. T here’s going to
be no net change. So maybe they’re going to be
willing to fight another day. My sense is that it
has changed in the past week or two. Chuck
Schumer is pushing back, and Sen. Richard
Blumenthal recently came out and basically said if
he doesn’t (publicly) denounce Trump’s attacks. I
on judges, I cannot vote for him. This is new. It’s
part of tying Gorsuch to this administration.
A.W.. What role do you expect the Supreme Court
to play in the next four years?
D.L.: You happen to be asking the question
we’re all asking about Gorsuch himself. We know
where his head is on religious liberty and criminal
procedure. What we know almost nothing about,
because the 10th Circuit Court just doesn’t do it,
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