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From a leaked draft in Dobbs to a series of revelations about the wife of a sitting Supreme Court justice texting with one of the main architects of the Trump administration’s failed coup — the goings-on within the court this term have made headlines and raised eyebrows. Justice Clarence Thomas has spoken of the relationships at the court as a betrayal. The institution is surrounded by fencing. Some conservative legal pundits have attempted to spin these headlines as part of a partisan, liberal effort to further delegitimize the formerly leak-proof and ostensibly apolitical institution. But despite their million-dollar efforts, diligent court watchers know that the turbulence reflects a radical shift playing out within the court itself.
On Slate’s Amicus podcast this week, UC Irvine’s election law expert Richard Hasen and CNN legal analyst Joan Biskupic discussed the ongoing upheaval and whether the justices will be able to change course before the beginning of the next term. Our conversation has been condensed and lightly edited for clarity.
Dahlia Lithwick: Rick, you’ve been watching the court and the justices for a lot of years. And I think you often talk about the decisions through a quasi-political lens, when you talk about doctrine and voting, but as somebody who’s been watching the court at least functioning at high velocity effectively, yes, politically, yes, but always functioning. What do you say about this partisan rancor and the internal divisions we are now watching? It feels to me as though the wheels are a little bit coming off. This is just not the usual short tempers of June. This feels like something that may not be repaired come October.
Rick Hasen: I do think that we’re seeing a fundamental change. And one thing that I noticed on Wednesday when the Supreme Court last released opinions: I was sitting in front of my computer and every 10 minutes as I hit refresh, I could see another opinion, but there was no announcement of those opinions in the building. That was something that got cut off with COVID when the oral arguments moved to telephone. But now the court’s back in the building for oral arguments. And yet they’re not giving the chance for dissenters to orally dissent, which is a very common thing. At the end of the term, I rely on people like Joan, who are in the room, who can tell me about the expression on this Justice’s face when she reads this dissent, the emotion. This seems to me to be a calculated way that John Roberts is trying to keep some of the emotion that’s brimming over from being publicly displayed.
One person commented on Twitter: maybe they’re worried about a security threat. I don’t think that’s it, because it’s the same reporters who get in, and the public’s still not getting in there. So there really is, I think, an attempt by Chief Justice Roberts, who must be pulling out his hair, not only because of the leak and the emotion that is coming in the cases, but also because I think if you’re a conservative like Roberts, you kind of already have the perfect formula to move the law in a way that is doctrinally significant without making waves.
So imagine if, instead of an opinion in Dobbs coming in the next few weeks that says Roe v. Wade is overturned, we had the court say, “Today’s not the day to decide whether Roe v. Wade is overturned, but what Mississippi’s doing is just fine.” And then there’s another case and another case, and it’s the story of the boiling frog, right? Where you just keep raising by a degree and you don’t realize that you’re being boiled alive until it’s too late.
That is very different from what the five more conservative justices seem willing to do – what our friend and colleague Leah Litman calls the “Yolo Court.” For them, now is the chance to make some change. And I don’t think there’s ever been a situation in modern times where so much could fundamentally change, not just on abortion and guns and an executive power as Joan mentioned, but affirmative action is on the block for next term. There’s a major voting rights case that we may hear as early as Tuesday, that the court’s going to take involving the independent state legislature doctrine, which you and I have talked about before.
It’s not as though we’re going to have this one blockbuster opinion such as Citizens United and then move on and come back. And sometimes Justice Anthony Kennedy sided with the liberals. Sometimes he sided with the conservatives. The court’s fundamentally in the middle. It’s not going to be like that anymore. All the conservatives on the court were appointed by Republicans. All the liberals on the court were appointed by Democrats. It’s much more common now to hear politicians refer to the Republican Supreme Court. And there’s a point to saying that now, because it is more politicized. And because things are not moving slowly, you have much more chance for radical change and the kind of attention that John Roberts does not want on the Supreme Court is exactly what we’re getting.
Dahlia: I feel like you’re both making a version of this point that I was trying to make, which is that since October, since the term started, and there was anxiety about the shadow docket and there was the S.B. 8 case, and there were horrible polling numbers. We’ve had this sense this term was going to be different. That this was going to be the term where doctrine is just like a vending machine. You put in your quarter, you get out your Skittles. You want guns, you get guns. You want Roe overturned, you get Roe overturned. No surprises.
And I know that John Roberts hates that story and that Stephen Breyer, bless his heart, hates that story. And they want to say, “This isn’t just the vending machine SCOTUS.” And I know also we get a lot of squawking from the justices who say, “That story is not true and don’t politicize the court.” And Justice Amy Coney Barrett who says, “Read the opinion,” except there is no opinion because it was a shadow docket unsigned order.
So maybe the question that I’m presenting all of us with is: Maybe it’s good? Maybe it’s good to just take away that oracular narrative and call it what it is. And ladies and gentlemen, the court is now a vending machine. It’s one of the reasons I wanted to have you on. And, Joan, I think before we get to that big question, I want to ask you to tell folks who are not inside the building, what these last few weeks in June look like. Just the tick-tock. We’ve got clerks running around. We’ve got justices drafting opinions they have to get out by July because they have fabulous places to go and things to do. But all of that now is being really inflected by this layer of worry and tension.
And I don’t want to minimize that there is fencing around the court and genuine threats and protest against the Justices. So what do you do, inside the court? How does it look? How do we get through this? And the public feels like it’s pressed up with its nose against the window. What is it that is going on in the building?
Joan Biskupic: That’s a good question. And I’ll take it from inside the chambers. And then also what Rick nicely referred to is just what those of us who have been lucky enough to have been sitting in the courtroom for opinion announcements were able to observe. In the chambers themselves, typically the justices and mainly the law clerks, the real workhorses of the building, are working around the clock. They’re crashing. They’ve got deadlines. And as in most kinds of writing, it doesn’t get done until it has to get done, which is why the next two weeks is when we’re going to see the biggest cases. And they’re all working together and trying to get these opinions out and they’re negotiating the last bits of it.
And what’s different this time is that the clerks don’t have the release of certain get togethers, happy hours, get out, the solidarity that would normally happen in a positive way because they are under such scrutiny over this leak. You referred to the fact, Dahlia, that I’d reported that the clerks not only have had to sign affidavits, but the court officials have taken steps to figure out what kind of cell phone data they might want from the law clerks who are within weeks of leaving the building, going off to other jobs as their one-year stints end. But I have heard so much through lawyers who have been in touch with law clerks and law clerks themselves about the kind of atmosphere of suspicion that’s on them.
And it can turn out that maybe a rogue clerk did somehow pass the draft opinion of Justice Sam Alito’s reversal of Roe. Too political? Frankly, my money isn’t on the law clerks right now, it’s on other people, but it might turn out to have been a law clerk and maybe they’re going to get to the bottom of it, but it’s been six weeks now since Chief Justice John Roberts launched that investigation of the leak. And as far as we know, they have not turned up the culprit. So the law clerks are not just under the pressure of the work from anxious justices trying to resolve these big cases, but they’ve got this suspicion over them.
And the justices themselves, they’re working both in the building and at their second homes. The kind of usual tension plus camaraderie has dissolved. They have the demonstrations out front, but they’ve also had these death threats obviously. So that’s added to it. And then a key part for the public, the public announcements of opinions that Rick referred to. The very last time we heard a dissent from the bench was Elena Kagan’s in 2019 in the very important gerrymandering case, the extreme partisan gerrymanders, which have so added to the erosion of democratic norms.
And she gave a very mournful oral dissent from the bench. And even to hear that, but also to have heard Chief Justice Roberts’ majority opinion for five of the nine saying, “No, we’re not going to intervene in these kinds of cases.” It was important for both sides. It was important for us to be able to hear that. The tapes of those end up going up on the Oyez website afterward, some months, years later, but at least the public can hear them in real time. I can hear them. I can tell everybody what it was like in that room. And I think that’s a very important slice that’s been removed. And it also removes that element of personal accountability on the part of the justices for what they have just decided for the entire nation.
Dahlia: It’s interesting. Joan, I was reflecting as you were just talking that there was a real push in some quarters after the Dobbs opinion was leaked to just publish the opinion, to just drop it and have no dissents, and it’s done. The idea was that it would squelch all the anxiety and the tension around the leak. And of course, what it would’ve done is the same thing you’re describing, which is just cancel out the dissenters and have no dissenting voice. We don’t need to sit around and wait to hear what Elena Kagan has to say.
Joan: You know what? I don’t even know if that’s true. There were those reports. First of all, Politico got it, that 98-page draft, but the subsequent reporting about no other drafts being circulated and everyone being on board, I don’t really believe that is the case. I think we could very easily end up with five justices who want to completely overturn Roe v. Wade, no questions asked. Because those have been the signals we’ve been getting, obviously Sam Alito thought he had five for it and five would stay together.
But I just don’t believe that the chief has completely given up. Maybe by now, with only about 10 days to go, the chief has given up, but there’s no way in my mind that people like Brett Kavanaugh and Amy Coney Barrett, despite their interest in completely reversing Roe would have signed all the language that was in that first draft that was dated Feb. 10, by the way. So think of all that likely was going on between Feb. 10, when that supposedly was circulated, and May 2 when Politico published it. I think that there were at minimum, plenty of memos that went around among the justices.