As part of Slate’s weekly election talk show, In the Know, Slate staff writer Mark Joseph Stern talked to Slate senior editor Dahlia Lithwick about the legal aftermath of the election, how the courts will handle a Biden presidency, and a momentous case coming before the Supreme Court Tuesday. You can read an excerpt of their conversation, which has been edited and condensed for clarity, below.
Mark Joseph Stern: If you had your existential dread lifting over the weekend, just bring it right back down, because the Supreme Court is going to consider whether to eradicate the entire Affordable Care Act. I don’t know if the stakes are that clear to many people because Amy Coney Barrett did a really good job concealing them during her confirmation hearings.
So Democrats kept saying: There’s this huge ACA case. You have openly criticized the Supreme Court’s two previous decisions that saved the ACA. Why should we not expect you to just strike down the ACA now? Amy Coney Barrett kept responding, Well, this is a different case. This is about severability, a really technical question that you can’t possibly be smart enough to understand. And in reality, yeah, it’s partly about severability. It’s about whether the entire Affordable Care Act has to be struck down because one part of it may now be unconstitutional. It’s not quite as technical as she made it sound.
I’m scared of this case. I’m scared because, conservative lawyers, I think something like 20 red states’ attorneys general, a big number of conservative think tanks, leading conservative attorneys, they’ve thrown their weight behind this lawsuit. They have argued to two different lower courts that this is a real necessity, that the courts have an obligation to strike down all of the ACA, to strip health insurance from 23 million people.
One court has bought the argument hook, line, and sinker, right? A federal judge said, I’m going to overturn the whole thing. And then another court, the 5th Circuit, came pretty close. Now this is at the Supreme Court. And as soon as Amy Coney Barrett was nominated, conservatives backed away. And they said: “Oh, this lawsuit that we’ve spent hundreds of hours on and millions of dollars on, this is nothing. This is just so frivolous. Don’t even worry about this. Just put Barrett on the court and it’ll all shake out just fine.”
I think they still want to win this case. They do still want to overturn the Affordable Care Act, because they don’t care about 23 million people losing health insurance. They dream about that. They’re excited about that. … I think that there are probably at least three justices on the Supreme Court who share that feeling. Will Brett Kavanaugh save 23 million Americans? Will Brett Kavanaugh, the new median vote, will he take a step back from the brink or will he just plunge into the abyss and bring the court and the country with him?
This is just sort of my pitch to be a little scared about this and to make some noise about it, because I share your hope that the court, at least five justices on the court, do not want to go all-in for the jurisprudence of Trumpism and do not want to just totally latch themselves to Trump. But I think there’s a pretty loud minority that can be persuasive behind the scenes. So I am still very worried.
Dahlia Lithwick: The bench is now full of justices who can’t actually be disentangled from Trumpism, who really do not bring to the bench years of judicial experience or deep academic experience but instead vaulted to the federal bench and to the federal appeals courts at very young ages, having done nothing other than blog, be rabid anti-LGBTQ rights and rabid anti-choice rights, but these are not people that bring to the task of judging much more than, “Woo-hoo, liberal tears!”
That’s not nothing right now. We can sit here and talk normatively about Article III judges now stepping away from the worst parts of Trumpism, but in some ways, the absolute worst part of Trumpism is now baked into the Article III court.
Stern: Absolutely. I think Kavanaugh and Barrett and Gorsuch are going to try not to at least present themselves as Trump’s avatars on the bench, but many of his lower court judges do. And something that I’ve written about a little that I think is going to be a big feature of the Biden administration is lower court judges trying to push the limits and trying to push the Supreme Court further to the right, by doing things like striking down commonsense gun safety laws, upholding really restrictive abortion limitations, forcing the Supreme Court to get into these issues that it really probably doesn’t want to.
There’s a bunch of mini Trumps on the lower courts that are going to be with us for the next 40 to 50 years. And that is one lingering question that I woke up with my hangover on Sunday, wondering, OK, the party’s over, what the hell are we going to do about these little jerks? But that’s for another day. Right now, we know that Trump has lost. We know that he will be gone on Jan. 20. We have much to celebrate. How do you think historians are going to remember the 2020 election?
Lithwick: I’ve been giving this a lot of thought. … There’s huge structural problems. We live in a minority rule country that is only going to continue, I think, in some of the worst ways, gerrymandering, vote suppression, the census. There’s bad, bad outcomes. And at the same time, Mark, people got out of bed. They stood in line.
I look at these elections officials in the states that we were worried were going to be wildly partisan, wildly vote-suppressive. Most of them did their job. I mean, from the folks sitting in Philadelphia, just counting ballots in their weird traffic yellow vests, to the elections officials around the country who, with almost no exceptions, did their job, they just said, “I don’t care that suppressing the vote would be in the interest of this or that group. I want people’s votes to count.”
I just think more people voted than you or I ever could have expected. And they showed up. They just showed up. And despite all of the structural impediments, despite the coronavirus, despite the poisonous, poisonous atmosphere, people thought they as individual agents mattered. I mean, I really do think history is going to remember that. And I’ve said this a million times, but Mueller didn’t save us. Ruth Bader Ginsburg didn’t save us. Adam Schiff didn’t save us. But people saved themselves in huge numbers, despite structural impediments. I think that’s awesome.
Stern: Well, that is the first time I think I have heard you use the word awesome in several years, and that makes me feel really damn good.
This transcript was adapted from In the Know, Slate’s live election show that broadcasts every Monday at 1 p.m. ET on YouTube and Facebook. Watch the full chat below:
Next Monday, for the final episode of In the Know, our hosts Julia Craven, Noreen Malone, and Mark Joseph Stern will come together to discuss what they learned covering this election. We hope to see you there!
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