The first Monday of October is the traditional start of the Supreme Court docket-harvest festival, when a handful of cases are plucked by the justices to be argued before the highest court in the land and previewed by a deferential press corps. That was the tradition, at least. But on this week’s Amicus podcast, we decided to buck the usual practice and take a wider and a deeper look at the court’s October 2024 term, with a view past individual cases, toward the way the Roberts court is reshaping American democracy. Dahlia Lithwick was joined by Skye Perryman, president and CEO of Democracy Forward and a senior adviser to Demand Justice. Their conversation has been edited and condensed for clarity.
Dahlia Lithwick: I want to give you the chance to critique my framing of how we barrel into the first Monday of October. It just seems as though through habit, habituation, comfort-sleepwalking, or myopia, we are so narrowly focused on this small tranche of cases and still treat the justices as oracles. I think one of the things that you strive to do in your work, and through the different ways you think about the courts and the law, is to get out of this crabbed vision of what is coming up in the next couple of weeks at the court.
Skye Perryman: Let’s be clear, the Supreme Court is our highest court, and you’ve done so much good work writing about it and making sure people understand the stakes, but there are other courts across the country. Extremists and far-right movements don’t just show up on the steps of the Supreme Court on the first Monday of October out of nowhere. They’re working in communities across the country seeking to bring cases to shape the law in what often appear to be small ways but are the pathway to a law and a jurisprudence in this country that does not represent all of us and that does not fundamentally serve the aims of democracy. Project 2025 is not just a document about the next presidential administration—or what could be the next presidential administration. It’s a manifesto that reflects actual things that are happening in our courts today. For those of us that have the privilege of being lawyers or court watchers, part of our work is to look this extremism in the face and not blink or deny it, but to understand that it is here and that we all have work to do to combat it.
We keep making this mistake around Project 2025 where we talk about it as though if Donald Trump is defeated, it will just disappear into the ether. What you’ve been saying is, it’s already here and it’s already created a playbook in the courts. Regardless of who wins the Oval Office, we’re seeing it being unspooled in the lower courts and starting to manifest in the highest court in the land. We cannot think about what is going to happen at the Supreme Court without looking at Project 2025.
We are seeing lawsuits that have been strategically filed in jurisdictions in my home state of Texas seeking to undermine protections for overtime pay, which is in Project 2025.
Also in Project 2025 is the plan to use enforcement of the Comstock Act to restrict medication abortion nationally, and we’ve seen that start to appear in legal filings in various lower courts.
In Amarillo, Texas, there has been litigation to seek to remove the approval and set back the regulation of mifepristone, which is one of two medications used in medication abortion.
In other jurisdictions in Texas where there are single-judge districts, there have been efforts by far-right-aligned groups and attorneys general to remove other federal protections, because they think they have a shot if they get a particular judge.
There’s Braidwood v. Becerra, which is seeking to undermine preventive-care services that are covered through the Affordable Care Act, something that Congress has put in place.
These are cases that special interest organizations or, in some instances, far-right attorneys general have filed to undermine our federal system, and they’re not going away just because of a federal election. The groups behind these cases don’t feel as if they have to win a presidential election to do what they want to do. They’re planning on doing it in the courts, and they’re going to do it in smaller courts and places across the country where people may not be watching. And then they will eventually take those up to the highest court, which is of course what we’ve seen in the mifepristone case already and what we expect to see in some of the other cases too.
So you’re trying to respond to a concerted, sprawling decadeslong effort by the Leonard Leos of the world, the Federalist Society, the Heritage Foundation, to turn the courts into the thermonuclear device that blows up pluralistic, tolerant, broad-based democracy in service of special interests.
And what you’re saying is, it can just be a matter of filing it in Matthew Kacsmaryk’s court. It doesn’t have to be the way it was in the past, when it was achieved through tiny, incremental wins. I think it’s really useful to go back to Project 2025, because the blueprint is to get chunks of that put into place in lower courts around the country, with the understanding that once they’re in place, you can have challenges to EMTALA guidance, challenges to FDA licensing. This is not even the Federalist Society or the Heritage Foundation of 10 years ago, is it?
No, it’s much more extreme.
If you look at the briefs that are filed in some of these cases, you’ll find groups that have been active in election-denialism filing briefs alongside groups that might have been seen as coming from a pro-business perspective a few decades ago. Now there’s this common cause that’s been found through far-right funding networks that have been really well documented by Heidi Przybyla at Politico and ProPublica and other media sources following that money and that influence.
The thing we need to know as people—and I say this, taking off my lawyer hat, as just the American people—is that there are tools that our democracy provides to fix all of these things. You’re not actually at the behest of what an extremist group that does not represent the majority of people in this country wants to have an extremist judge endorse on a piece of paper. Our Constitution actually provides the American people with the ability to reform the court through Congress. And we’ve seen the president call for that because of what a threat these right-wing and far-right movements are to our overall democracy, to everyone.
There are a range of tools: litigation is one; legal theory development is one. They’re very important, but there’s also a range of legislative and other tools that we need to be using. Extremists want you to believe that there is no hope, that there’s nothing that you can do, that that die has been cast. So a lot of our work at Democracy Forward is to go into courts where, if we weren’t there, no one would be there. And our work shows every day that there are wins that can be had and voices that need to be heard in order to continue on this broader project of our democracy.
I did say this was not going to be a curtain raiser, but it also has to be a kind of curtain raiser because that’s what people need to know before the first Monday of October—with the caveat that the docket has been thin, exactly as our friend Steve Vladeck has been predicting. And maybe that’s because the court knows they’re going be doing election cases for the rest of our lifetimes. Nonetheless, what are you watching for from the Supreme Court? What cues are you going to be reading? What kind of trends are you following?
First, I think the docket, while thin right now, does have cases that are incredibly important and that we’re all watching, whether that is around gun regulation, which we’ll see in the VanDerStok argument next Tuesday, or whether it is the trans health care ban case that we’re seeing out of Tennessee. There’s also a case around FDA’s authority again, so we’re watching those cases on the docket.
But beyond those cases, I’m looking for the reverberations from the last few terms. What do we see the court do, in its own decisions and its own argument, with some of the doctrines that it has recently cooked up? I mean, we haven’t even talked about the major-questions doctrine! We have this jurisprudence that the court is writing out of, in some instances, thin air. Some of this is not in the briefing, and it may not be obvious from the docket, so I’ll be listening to the arguments and looking at the reasoning once the decisions come out to see what this court is doing in those new doctrinal areas, and what that tells us.
Obviously, I’ll be following the election and how they handle those cases. And that could be a true crisis for our democracy. We have one political movement that has made it clear that they are interested in denying election results and undermining our democratic process. All of that could take center stage at the court.
But I’m also interested in what happens at the Supreme Court after the election is called, because there are cases like the EMTALA case (the question around emergency abortion) that could come back up, the mifepristone cases could come back up. These are cases that the court punted in a very significant election year. What happens after we get through the election? What do we start seeing on the shadow docket? What do we start seeing litigants try to get before the court?
We actually saw this on a smaller scale with the last election. Just before the election in 2020, the court kept that nationwide injunction in place that allowed people to access mifepristone in the pandemic. After the election was called, and just before Biden was inaugurated, SCOTUS took the case up in a very odd procedural fashion. It sort of revisited it and, on the shadow docket, stayed that injunction. So I think we’ve already seen how there can be very different decisions and treatments from SCOTUS within just a period of months, with the election sort of falling in between. So I’ll be watching that too.
