Category: 3-LawSometimeCommentary

Lawyers love legal reasoning. It promises a clean, clear path through sticky, tricky territory. But legal reasoning can enable grotesque real-world outcomes, like torture, or arresting journalists, or masked government agents detaining and disappearing people. On this week’s Amicus, Dahlia Lithwick is in conversation with Joseph Margulies, Professor of Practice of Government at Cornell University. Margulies litigated some of the biggest cases of egregious human rights violations of the post-9/11 “War on Terror”, an experience that informed his recent piece in the Boston Review: The Moral Stupefaction of America. Margulies explains how, when we allow obscure legal language to overshadow moral imperatives, we can end up in very dark places. The line from waterboarding at black sites to executing American citizens in the streets is a straight one. And there will be a lawyer willing to write a memo for all of it. 

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OA1231 -

The DHS funding battle is important, but really can't accomplish what you might hope it can. When it comes to the Fed, ALL OF A SUDDEN the court cares about the real world effects of their decisions. And a figure skating related footnote!

 

Part 2 of 2.

OA 1230 - Seeing all the obstacles to holding government officials accountable, Congress created Section 1983, allowing citizens to sue for money damages for violations of their civil rights. We cover how that works, the one weird trick it uses to get around state sovereign immunity, and how that accidentally created the infamous qualified immunity doctrine that has made police seemingly unaccountable. We also discuss proposed reforms that might fix issues of qualified and sovereign immunity.

• 42 U.S.C § 1983

• Pierson v Ray, 386 U.S. 547 (1967)

• Graham v Conner, 490 U.S. 386 (1989)

• Pearson v Callahan, 555 U.S. 223 (2009)

• Kisela v Hughes, 584 U.S. 100 (2018)

• Barnes v Felix, 605 U.S. 73 (2025)

• Barnes v Felix, 138 Harvard L. Rev. 291 (2025).

• Julia Yoo, The Problem with Policing in the United States, ADVOCATE (Feb. 2021).

• David J. Ignall, Making Sense of Qualified Immunity: Summary Judgment and Issues for the Trier of Fact, 30 Cal. W. L. Rev. 201 (1994). (NOTE: Good review for basics, but note the date!)

• Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)

• Egbert v Boule, 596 U.S. 482 (2022)

• S. 122 Qualified Immunity Act of 2025 119th Cong. (2025)

• S. 3186 Constitutional Accountability Act 119th Congr. (2025)

• H.R. 6091 Bivens Act of 2025 119th Congr. (2025)

• H.R. 4944 Ending Qualified Immunity for ICE Agents Act 119th Congr. (2025)

• Qualified Immunity Abolition Act of 2026 (no bill number assigned yet)

  • Gelinas, S. (2026, January 18). Markey, Pressley renew push to end qualified immunity after ICE shooting death. Athol Daily News.

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The look back over our five years of drama, humor, reason, and illogic continues, as perhaps the most notorious opinion of the five year period - the Trump immunity case - reappears in a clip, along with a revisit with Justice Breyer.  Meanwhile, the oral argument in Wolford v. Lopez did, in fact, prompt the Professors Amar to write in SCOTUSblog.com, and we go even further here, with clips from that oral argument and answers to the justices that didn’t find their way into the record, but now, hopefully, enter the public discourse.  CLE credit is available as usual for lawyers and judges from podcast.njsba.com.

Part 1 of 2.

OA 1229 - What happens when a government worker does you wrong? How is it different to prosecute and sue them? When does qualified immunity come in to play?

We discuss the steps involved in prosecuting and suing someone for a simple battery, and how that differs for a regular person versus a state actor. We cover how and when defenses can be raised, federal and state sovereign immunity, suing in official versus personal capacity, the difference between absolute and qualified immunities, and the ways this will apply differently to criminal prosecution versus civil litigation.

• Siegell v Herricks Union Free School District, 7 AD3d 607 [2d Dept 2004] (Elements of civil battery in NY)

• N.Y. Penal Law § 120 (NY criminal “battery”)

• Fla. Stat. § 776.032 (Florida self-defense as an affirmative defense and immunity)

• Ohio Rev. Code § 2901.05 (Ohio self-defense as a standard defense)

• N.Y. Penal Law § 35 (NY justification defenses)

• Roger Fairfax, The Grand Jury’s Role in the Prosecution of Unjustified Police Killings - Challenges and Solutions, 52 Harvard Civil Rights-Civil Liberties Law Review 397 (2017).

• Michael Gentithes, Harvesting the Grand Jury’s “Lay Expertise” in Officer-Involved Shootings, U. Ill. L. Rev. 989 (2025).

• In re Neagle, 135 U.S. 1 (1890)

• Gregory C. Sisk, A Primer on the Doctrine of Federal Sovereign Immunity, 439 Okla. L. Rev. 58 (2005).

• 28 U.S.C. § 2680(h)

• Miles McCann, State Sovereign Immunity, National Association of Attorneys General (Nov. 11, 2017)

• State Sovereign Immunity - Generally, Interstate Commission for Juveniles, https://www.juvenilecompact.org/bench-book/chapter-6-1

• Ex Parte Young, 209 U.S. 123 (1908)

• Scheuer v. Rhodes, 416 U.S. 232 (1974)

• Moor v. County of Alameda, 411 U.S. 693 (1973)

• O’Shea v Littleton, 414 U.S. 488 (1974)

• Judicial Immunity at the (Second) Founding: A New Perspective on § 1983, 136 Harvard L. Rev. 1456 (2023).

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First, Leah and Melissa explain the legal battles around the ICE occupation in Minnesota and what might come after the killings of Renee Good and Alex Pretti. Then, Leah, Kate, and Melissa run through the latest legal news, including Jack Smith’s testimony before the House Judiciary Committee, before diving into this week’s blockbuster oral argument, Trump v. Cook, on whether Trump has the power to fire Lisa Cook from the Federal Reserve Board. They also cover the week’s other oral arguments, including a Second Amendment case where Sam Alito came out as woke…for guns. Finally, with apologies to the Fifth Circuit, a new nominee for America’s worst circuit court. Preorder Melissa’s new book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader, out May 12, 2026. 

Favorite things:

• Melissa: Valentino Was the Last of Fashion’s Old Guard, Robin Givhan (NYT); The Supreme Court Just Held an Anti-Trans Hatefest, Elie Mystal (The Nation)
• Kate: The Purged, Franklin Foer (The Atlantic); There’s Much More at Stake in the Fed Case Than Interest Rates, Lev Menand (NYT); God of the Woods, Liz Moore; Broken Country, Clare Leslie Hall
• Leah: Lindsey Halligan being a shitty lawyer; Mark Carney at the World Economic Forum;  Stand With Minnesota; Your Friendly Neighborhood Resistance, Kerry Howley (New York Magazine)

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• 3/6/26 – San Francisco
• 3/7/26 – Los Angeles

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The evidence is mounting that ICE is not only unbothered by moral boundaries, but immigration and customs enforcement agents acting on behalf of President Trump believe they are not constrained by constitutional red lines, either. According to a super-secret internal memo flagged in a whistleblower complaint this week, the Fourth Amendment simply doesn’t apply to ICE. That sense of impunity is also clear in a growing chamber of horrors from their enforcement operations; from masked agents taking a child in a blue bunny hat, to the shooting of Renee Good. Worryingly, this sweeping concept of immunity is kind of true—though maybe not for the reason you think. This week on Amicus, Dahlia Lithwick talks with Alex Reinert, the Max Freund Professor of Litigation & Advocacy at Cardozo School of Law. He is also the director of the Center for Rights and Justice and Co-Director of the Floersheimer Center for Constitutional Democracy. Alex explains the origins of qualified immunity—a legal theory that allows law enforcement officers to be free from consequences for their actions—why ICE’s lawlessness is not a new phenomenon (even if it is a phenomenon in hyperdrive under Trump), and what we can do about the obvious problem of maximal impunity for the people who have the most power to inflict harm.

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OA1228 - On this week's Rapid Response Friday: we take on all of your legal questions about this whole Greenland thing--including how a 1916 diplomatic treaty with Denmark also enabled some of Jeffrey Epstein’s worst crimes. Also discussed: what it took to finally force Lindsay Halligan to stop telling everyone that she was the U.S. Attorney for the Eastern District of Virginia, and how a Minnesota judge designed her unique order to protect Minneapolis protesters and observers from ICE’s lawless violence. Finally, in today’s footnote: is it enough that McDonald’s can promise that their most elusive sandwich is “100% pork”? We dig into a recent lawsuit over the McRib to see if there is any meat on the bone.

1. The US-Denmark Defense of Greenland Agreement (1951)

2. “How Congress Can Preserve NATO and Greenland: Using 22 USC 1928f to Protect the Peace,” Alberto J. Mora,  Just Security (1/16/2026)

3. Judge Novak’s order officially striking Lindsay Halligan’s appearance from the record and requiring that she stop “masquerading” as the U.S. Attorney for the Eastern District of Virginia (1/20/2026)

4. Tincher v. Noem docket

5. Judge Menendez’s preliminary injunction in Tincher v. Noem (1/16/2026)

6. Complaint in Lynch et al v. McDonald’s, Eastern District of Illinois (12/25/2025)

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With shocking and uncharacteristic efficiency, we manage to discuss three merits opinions and one orders list dissent in only 47 minutes. Specifically, we  revisit Coney Island Auto Parts Unlimited, Inc. v. Burton (time limits for moving to vacate void judgments) and break down Berk v. Choy (an Erie doctrine puzzle), and Ellingburg v. United States (criminal restitution and the Ex Post Facto Clause), while also managing to discuss Justice Jackson's broadside against the Court's practice of "martinization." 

In this member-exclusive episode, co-hosts Dahlia Lithwick and Mark Joseph Stern discuss the Supreme Court’s fact-free foray into Trump v. Cook, a case that economists warn could crater the economy. President Donald Trump spent the first weeks of his second stint in the White House firing a lot of people from government agencies. For the most part, the High Court’s conservative justices let it slide, in line with their general “he’s the President, let him do it” posture. But Federal Reserve governor Lisa Cook was different. In August, Trump fired off a post on Truth Social, then sacked Cook a few days later, leaving a huge question mark hanging over the independence of the Fed.  Turns out, that’s a very big deal for anyone who wants to avoid hyperinflation and economic disaster. During Wednesday’s arguments, it was clear that even Trump’s hand-picked justices felt as though they would like to avoid such catastrophes. What ensued was more about feelings, fear, and frustration than law, but that may be the best we can hope for. 

This episode is member-exclusive. Listen to it now by subscribing to Slate Plus. By joining, not only will you unlock weekly bonus episodes of Amicus—you’ll also access ad-free listening across all your favorite Slate podcasts. You can subscribe directly from the Amicus show page on Apple Podcasts and Spotify. Or, visit slate.com/amicusplus to get access wherever you listen.

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