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There is a tendency among even the most committed adherents to the rule of law to respond with “Nothing is gonna change” nihilism to even big legal wins. This is also true of big legal losses. On this week’s Amicus podcast, Dahlia Lithwick spoke with former Solicitor General of the United States Donald B. Verrilli Jr. about this propensity to dismiss the importance of Supreme Court wins and losses alike and the degree to which Chief Justice John Roberts has legitimately earned his recent glow-up. Verrilli served as solicitor general from 2011 to 2016. He’s now a partner with Munger Tolles & Olson, and he has handled a host of big recent cases at the U.S. Supreme Court, including victories in Moore v. Harper, which rejected the “independent state legislature” theory, and California v. Texas, which again upheld the Affordable Care Act. As solicitor general, he argued some of the most consequential cases heard at SCOTUS in the Obama era, including the ACA case and Obergefell, which recognized the right to marriage equality. This conversation has been edited and condensed for clarity.

Dahlia Lithwick: I want to ask you about the tariffs decision. The court is, by design, insulated from the world and covered in Bubble Wrap, thanks in part to the justices’ lifetime tenure. The justices don’t care what you’re doing out there on the plaza; they are just brains in a vat. This made us crazy during the insurrection case two terms ago, because if you listened to oral arguments in that case, you might never know that the insurrectionists were planning to hang Mike Pence across the street from the court. 

But the week before last, there was a really interesting turn where we saw that dynamic flipped completely on its head. You had the justices in the majority who seemed to care not at all that Donald Trump had been leveling real threats against them for months. Instead, they wrote what was in essence a series of dueling law-review articles on the major-questions doctrine. That raises this question for me: Is this worth a second look? 

Yes, the court is clueless and out of touch—but sometimes judicial independence and lifetime tenure is a good thing. This is part of a larger question of the Roberts glow-up that happened in the wake of this decision, where everybody’s in love with him again. The chief justice didn’t just mouth platitudes about judicial independence in this case—the court stood up for it, even if it was a day late and a dollar short. Is this a case of credit where it’s due? 

Donald Verrilli: I think I agree with you, but I worry that he may gravely disappoint you within months on some other matter, or on this very thing.

Let’s call it weeks, Don. 

Some people have looked at the tariffs case, for example, and said, “Ah, they’re just voting their pocketbooks—they’re just worried about the stock market.” 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 they’re acting in good faith, even if I disagree a lot with the exercise of judgment that good faith produces.

If they were going to uphold the president’s use of the statutory authority to do these tariffs, they would have been blessing a wholesale transfer of a massive amount of power from Congress to the president. They just weren’t going to do that. Seeing the capricious way in which that power was being abused by the president, they weren’t going to do it.

So I think they were cognizant of what was going on in the real world and exercising the independence that life tenure gives them. I think both things were going on at the same time.

But this decision did take a really long time to come down, and it felt as though the reason it took a really long time to come down is that some of the justices were honing their smart-ass responses. Is it fair to say this should have come out quick and clean in the interest of the people, or is there some merit in the degree of gratuitous intramural face-booping that happened throughout these opinions? 

I think there’s zero merit in that. 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 there was a bigger problem every day. 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 it was an issue of great consequence. This was Trump’s most important policy initiative and foreign policy tool, and the court was telling him it was unlawful. It didn’t seem like the right occasion to me for a lot of extended snipy back-and-forth about what the major-questions doctrine should call for.

If you actually think about it, what Justice Amy Coney Barrett said, what Justice Neil Gorsuch said, what Justice Elena Kagan said in her concurrence, and what the chief justice said? There was a common core to it, which was: Use your common sense, man. There’s no possible way 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.

There’s a huge temptation for the people who live outside the world of the Supreme Court to say: Nothing matters, the 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’s just wrong. There isn’t another place to go. You don’t have an alternative Supreme Court where you can take your appeals if you don’t like these decisions.

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, where we don’t even understand the reasoning, and, at the same time, This entire project still matters, taking cases to the court matters, finding plaintiffs still matters, being vindicated in this court still matters. How does this balance out in terms of how to approach the court in a clear-eyed and sober way but also a way that doesn’t suggest “This is utterly useless, burn it all down”?

So, rather than talk about that in the abstract, how about something concrete? When I was a young lawyer, right after I finished clerking, the Supreme Court decided Bowers v. Hardwick, which was a case that rejected the idea that there was any constitutional protection for same-sex relationships, and the court rejected that in an opinion that was bitter and frankly demeaning in tone. 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 that there was no possible way the court was ever going to recognize any kind of dignitary equality for gay and lesbian people. A lot of people believed that. And maybe I was one of them.

But then there was a movement out there in the country, and it was a bottom-up movement, and all kinds of organizing was happening, and people decided to bring lawsuits and find plaintiffs and engage in scholarship and do all that kind of work. It led, in the first phase, to the overruling of Bowers, in the Lawrence case, then progressed from there to Obergefell some years later. The court that decided Lawrence was by no stretch of the imagination a liberal court. It wasn’t the Warren court; it was the Rehnquist court, and yet look what happened. It was because people maintained their commitment.

It’s a form of faith—not a naive faith—a faith that recognizes that this is going to be a long fight, an uphill fight, and we’re going to lose things along the way, but what choice do we have? It’s either this or give up entirely. Good things have happened when people decided not to give up entirely and held on to that kind of hard-nosed faith.

Dahlia Lithwick and Mark Joseph Stern

A New Ruling Forces the Supreme Court to Confront the Trump Administration’s Lies Under Oath

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. 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. A lot of the people who started that fight in the early part of the 20th century never lived to see Brown, but they fought anyway, because they had that kind of commitment.

To me, that’s the right way to think about it. It’s the right way to think about it now. A lot of stuff is bleak now, and I think 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 that there’s reason to keep the faith.

David French had an interesting piece in the New York Times last week declaring that the tariffs opinion was the most important case of the century. I’m probably not there; I don’t generally make declamations about the century within a week of things. But he did offer one helpful fix to this same problem of declaring that the courts just don’t matter anymore. He writes: “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.” This echoes something Kim Lane Scheppele said to me at the beginning of the second Trump term, of resistance in terms of sand in the gears: Throw sand in the gears, make things take a long time, get attention. The courts of course have no purse, no sword, no army, cannot enforce their own decisions, judges across the country are being threatened with impeachment and doxxed and their families are being threatened, and yet some courts are doing a bang-up job of sand-in-the-gears, rear-guard action right now, and that shouldn’t be trivialized. 

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I think it’s even more than sand in the gears. It’s probably still a rear-guard action, but maybe even more than that. I think about this in terms of the executive-order cases against the law firms, which I’ve been involved in. One way of looking at that, a cynical way of looking at that, is “Well, Trump won that. All these law firms cut deals.” Well, yes, most law firms wouldn’t stand up and fight, but some law firms did, and they got rulings that said that this kind of conduct by a president is antithetical to the rule of law.

What if they hadn’t stood up? That’s 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 would have an executive that was just on a rampage, with no one willing to stand up. I see the courage in standing up in federal district judges and a lot of court of appeals judges too, over and over and over again, in hundreds of cases, saying: No, no, rule of law matters.

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