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The Supreme Court is back in session, and public opinion of the justices has never been lower. According to a Marquette University poll, fewer than half of Americans now approve of the court’s performance. Now, many of the justices have gone on the record to defend their reputations. Justice Amy Coney Barrett spoke out against accusations that the court is packed with partisan hacks at an event for Senate Minority Leader Mitch McConnell. That’s ironic. Meanwhile, liberal Justice Stephen Breyer is hoping to remind people of the court’s mission. But does anyone who doesn’t serve on the court actually buy the vision that they’re impartial anymore? And how could this court reshape American lives in the upcoming session? On this week’s episode of A Word, I spoke with MSNBC analyst and the justice correspondent for the Nation Elie Mystal. His upcoming book is titled Allow Me to Retort: A Black Guy’s Guide to the Constitution. We discussed what’s on the docket and why so many Americans are braced for the court to shred their rights. Our conversation has been edited and condensed for clarity.
Jason Johnson: What does it mean that right now, large numbers of Americans don’t think the court is representing them? What does it mean that people don’t trust the integrity of the decisions? What does that actually mean in a practical sense to have the highest court in the land be an institution that people question?
Elie Mystal: The Supreme Court has no army. It has no money. It has no power to tax or spend. That’s not me saying that. That is Alexander Hamilton saying that in the Federalist Papers. That was Alexander Hamilton spitting bars about how weak the Supreme Court is. The only reason why it has any power at all is because we let it. And at the point where the people believe that the Supreme Court is illegitimate, at the point where the people believe that its decisions no longer carry water, well, what’s it going to do? It can’t fight, it can’t take your money, so its legitimacy is the only currency that it has, and the conservatives are burning it. And they’re taking their only legitimacy currency and throwing it out of the window in their rush and excitement to achieve victory in the culture wars.
We’re both old enough to remember the 2000 election, right? That was a situation where the Supreme Court makes a ruling that pretty much dumps on 50 percent of the country. I mean, it was a legitimate split. Fifty percent of the country wanted Al Gore. Fifty percent of the country thought that they wanted George W. Bush. Even after that, public confidence with the court did not drop as far as we have it right now. What is the difference between what happened 20 years ago versus what they are doing right now?
A couple of reasons. First of all, look, I was a first year at law school when Bush v. Gore dropped, so my entire legal journey is shaped by that decision. Despite the dripping hypocrisy of the conservatives on that day –with Sandra Day O’Connor basically deciding that she didn’t want Al Gore to be president and Antonin Scalia going against his entire ideological philosophy to make George W. Bush president— despite all of that, the key thing that the court had in 2000 that it doesn’t have in 2021 is the knowledge that the people who were on the court got there fairly.
I might have spent my entire life disagreeing with Antonin Scalia, but I cannot disagree that he legitimately, through the regular process, was placed on the Supreme Court. The same with Sandra O’Connor, the same with all five conservatives who voted for George W. Bush. George W. Bush might have been an illegitimate president, but I could not say that the five justices that made him so were illegitimate justices.
We all saw how Neil Gorsuch greedily…was happy to take that boon from Mitch McConnell. We all saw what happened with Amy Coney Barrett. Look, you can have Gorsuch or Barrett, but you can’t have both, right? You can stick your flag in the sand that you can’t confirm a justice during an election year, and so that’s how Gorsuch gets on, but then you can’t have Barrett. Or you can flip it, whenever the justices come up, you got to put them on, which means you can have Barrett, but you can’t have Gorsuch. Right? And then they put an alleged attempted rapist on the court in between.
The Kavanaugh hearings rivaled the O.J. Simpson trial as far as the ratings and level of attention that people paid. So, yes, you’ve got two illegitimate-process judges sandwiching a guy whose personal and financial integrity is so bad that, only in the Trump administration, could he ever have gotten a job.
Right? And he gets to be now, according to the Supreme Court, the fifth vote to decide whether or not women have the right to choose. You’re literally putting a person who’s been accused of forcing his will on a teenage girl in charge of forcing teenage girls to carry pregnancies to term against their will. That is monstrous. And that is why the Supreme Court’s public perception has taken such a hit in recent years. It’s not because of their decisions. Their decisions are awful. I have literally made a whole career explaining why their decisions are awful, but the way that they’ve gotten the power to make those decisions is anti-democratic, anti-American, if not straight-up immoral.
This is the thing, Elie, I’m glad that you mentioned Kavanaugh and the upcoming abortion issue. The court allowed Texas to go forward with this restrictive law. And then we’re hearing about this thing called a shadow docket. What is the shadow docket, and how was the court using it to weasel their way into decisions like ending abortion and limiting voting rights without having to actually put their thumb on the signature?
If there’s one thing most people know about the Supreme Court is that it takes a long time to get there. The wheels of justice grind slowly. Most people understand that. The shadow docket is, at core, the emergency process. Some things we don’t have time to wait on for a long time, for years and years and years for it to get the Supreme Court. So that’s the emergency appeal. You appeal an emergency to the Supreme Court. The Supreme Court quickly, without debate, without public hearing, they make a decision, issue a ruling. Bam, you’re done, you live or die. That’s what the shadow docket is for historically. There’s nothing wrong inherently with having an emergency process for emergencies. What the conservatives have done is taken the emergency process and used it for things that are not emergencies. The conservatives have decided to overturn laws through its emergency shadow process without a full hearing and importantly, without explaining what they do.
It is particularly important that I understand why the Supreme Court does what it does, because the way our common law system works, it requires us to know not just what the law is, but why it is that way, so that we can iterate and figure out what other laws may or may not mean. That’s how the common law system works. You have to explain in your opinion, your written, long-ass opinion. That’s why people go to law school. In the shadow docket, you don’t have an explanation. So for S.B. 8, for the Texas law, I don’t really know why it’s suddenly OK to use bounty hunters to subvert the Constitution. Brett Kavanaugh just said so. That’s not law; that is authoritarianism. And I can be light about it, but it’s a direct threat to our system of government. And it’s a direct threat to our rule of law. And they’re doing it in plain sight, and nobody is stopping them.
What are, say, one or two other really critical cases that you see that could happen in this court’s session that could basically fundamentally alter the balance of power in this country irrevocably?
By the time we get to June, when they make these decisions, I’ve said this a lot, owning a gun is going to get you more rights than owning a uterus. In a world where abortion was not on the table this term, the direct challenge to gun rights would be the big case everybody was talking about. This is called New York State Rifle and Pistol. They’ve sued New York state over the issue of gun licensing, arguing that gun licenses itself are unconstitutional. Which, I mean, look, the state can make you have a license to drive a car, the state can make you have a license to sell a beer, but according to the ammosexuals, you don’t need a license to own a gun and to carry it outside your house. That’s their argument.
The Supreme Court is likely going to agree with that argument. And the justification for that argument will stick in my craw particularly, because conservatives are going to agree because conservatives think the Second Amendment is the only amendment that counts—but they got some help over the course of this case with an amicus brief filed by a group of public defenders in the city who predominantly represent “urban” clients. Urban being the euphemism in this world for Black people and brown people. So these Black attorneys argued that the New York state licensing requirements were racist.
All of the arguments that a person like me would make about why drug enforcement laws are racially biased, these public defenders made about gun laws. They said, gun laws were used as a pretext to stop otherwise law-abiding people and harass them for no reason, that they had different penalties depending on the color of your skin, how hard you would get hit with an infraction. I mean, get this, in New York, the very people who control whether you can get a license or not are NYPD, which ain’t right. So the public defenders made really great arguments for why New York gun licensing requirements are racist. I agree with their arguments. They have identified a problem. They have come to the wrong solution.
Their solution was to sidle up with the ammosexuals and argue for gun rights as opposed to arguing for civil rights. Argue for 14th Amendment equal protection rights, don’t argue for a more engorged, chesty, violent version of the Second Amendment. I have two predictions for this term: one, pain. Two, they’re going to let Clarence Thomas write the pro-gun opinion in the language of civil rights that was given to him by the New York public defenders. And that will bother me when it happens.