The Trump Court and The Roberts Court

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S1: This ad free podcast is part of your Slate Plus membership. Hi, and welcome back to Amicus. This is Slate’s I’m going to say it, Gracie award winning thank you legal podcast about the courts and the law this past week brought us the opening of the term, with the first Monday in October at the Supreme Court justices hearing in-person argument for the first time since the winter of 2020. Brett Kavanaugh calling in because he tested positive for COVID The court heard arguments in several cases, including one in which some of them appeared to have forgotten about the existence of Guantanamo Bay.

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S2: Why is he there? That’s a question to put to the government. We don’t know the answer. Have you filed a habeas or something? Get them out? There’s been a habeas proceeding pending in D.C. for the last 14 years. There’s been no action. They don’t decide. I’m sorry. I mean, you just let it sit there. All right. I guess this is not relevant, but I’m just curious in a way, I’m not handling that proceeding. But no, my understanding is that we’ve done everything we could to to move it forward. But it simply has not moved forward.

S1: And the term previews and curtain raisers this past week skewed quite heavily into the realm of politics, with bracing reminders that the justices approval ratings are in the tank and the shadow of big, huge abortion and gun rights cases looming over the term. And justices giving very, very polemical, angry speeches.

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S3: My point is that the media and political talk about the shadow docket is not serious criticism. It is related to a deep problem that some of my colleagues have addressed recently. The catchy and sinister term shadow docket has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways. And this portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution.

S1: Since our last episode, Justices Samuel Alito and Sonia Sotomayor have taken to the speaking circuit to talk about what’s to come. Justice Alito to fume and rage against the haters. And Justice Sotomayor to warn of bumpy days ahead. Later on in the show, we’re going to be joined by Mark Joseph Stern for Slate Plus segment to talk about that Alito speech to update you on SB8, the Texas abortion law, and maybe possibly potential beginnings of accountability for the How to Ku Better Elections subversion lawyers. But first, as somebody who’s been covering the court for quite some time. I confess that the last few weeks have been a little destabilising. I think that if the court had been quiet over the summer, refrained from their shadow docket reindeer games and stop giving speeches delivered at the feet of Mitch McConnell, I truly believe they would have sailed into this most important term of the century, with 57 percent approval ratings and a press corps that was completely willing to agree that everything was business as usual. The justices own decisions to do kind of partisan things and partisan ways on an emergency docket shadow docket. I’ll say it was an epic cellphone, and rather than just let that be, over half the court seemed to have looked around in recent weeks and thought, Hey, you know what’s going to win back public approval? Me doing even more crazy partisan stuff, I don’t know. I’ve long argued that the court loves to tell the story of itself as oracles and umpires, and that the Supreme Court press corps sometimes prefers that narrative as well. But a whole cadre of researchers and political scientists have been arguing for decades that the court is a partisan political institution and it should be measured by outcomes alone. For a century, these political scientists have been telling us that judicial behavior is better predicted by a political modeling than by trying to triangulate against complicated doctrinal processes. So while most of the balls and strikes court watchers seem to have emerged into this reality in the light of the 2021 term, blinking at the courts suddenly cratering legitimacy, belatedly asking themselves, Is this a crisis? All the political scientists are just standing around smoking and drinking and murmuring, I told you so. And by the way, they’re holding the receipts, standing by today with a metaphorical cigarette and martini in hand is Professor Lee Epstein. Lee has been looking at the courts through the lens of data and political science for decades. She is the Ethan H. Shepley Distinguished University professor at Washington University in St. Louis, focusing on law and legal institutions, especially the behavior of judges. She’s also co-director of the Center for Empirical Research in the Law and principal investigator of the U.S. Supreme Court database, a recipient of 12 grants from the National Science Foundation. Lee has authored or co-authored more than 100 articles and essays and 18 books, including The Behavior of Federal Judges with William M. Landis and Richard Posner, and an introduction to empirical legal research with Andrew D. Martin. She’s currently co-editor in The Oxford Handbook on Judicial Behavior, and this past week, as I read the term previews and they were all laced with these really political claims about poll numbers and wobbling public legitimacy and this judicial charm offensive gone horribly wrong. All I could think to myself was What would Lee Epstein think? This is shocking to SCOTUS watchers, but it’s the water Lee swims in politics, judicial behavior data all the way down. So Lee welcome to the I told you so Dahlia world tour. It is lovely to have you on the podcast.

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S4: Thanks for inviting me. It’s a pleasure to be here. You know, part part of the story is I think and I told you so story, it’s it’s hard to believe that people didn’t see this coming right. Obama is president for eight years. He gets two appointments. Trump is president for four years. He gets three appointments and he moves the center of the court toward Brett Kavanaugh away from the chief justice. So, you know, yeah, I told you so there. There’s a lot of predictability here and abortion and guns. Not at all surprising. But Dahlia. There’s another side to this story besides the kind of Trump court side. And that’s from the data side. If you look at the data from last year, this doesn’t look like a really socially, culturally extreme court. And that’s what’s a little perplexing about last year. Now, whether this is going to hold next term, I don’t know. But right now, there’s a side to this court that looks kind of standard issue Roberts Court.

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S1: So this is interesting. So you’re telling me that while we were sort of asleep at the switch for a long time as the court was drifting rightward, we’re actually now getting the data wrong on the other side that we’re over correcting or overeating a couple of shadow docket opinions from the summer and these dopey speeches. But that in fact, if you look at the data from last term, it’s not as bad as we now think it is, but it’s worse than we thought it was when we were asleep.

S4: A hundred percent, right? It’s almost like there’s two courts operating right. There is this kind of I’ll call it Trump court, aided and abetted by Alito and Thomas. And you see that in the abortion case this summer, you saw it in the voting rights case. Although, as you know, the Voting Rights Act is kind of hallmark Roberts Court well before the Trump justices got their right. You see it in the fact that they took a gun case this term and and so on. And the COVID case, the Kofod religious case that flipped when Barrett got on the court. But then you start to look at the data. So the data show a court that was almost 50 percent unanimous in nine person decisions. I think 46 47 percent really high. The average for the period going back to 1937 is like 33 percent. So you see above average unanimity. You don’t see the six to three decisions that we thought, we thought there’d be a lot of six three decisions along partisan lines. If you look at six to three decisions, I think they were only they only made up about 15 percent of acute cases, like six three partisan split cases. And then look at the cases that made the front page of the New York Times. Yes, there is a voting rights issue. And if even if you take into account the Emergency Act cases it, it doesn’t look like the Democrats on the court have lost. You know, 90 percent. So there’s there’s two stories going on here. A standard kind of moderate conservative institutionalist Roberts Court. It kind of a Trump court.

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S1: So cynics like me who read the raft of end of term pieces that made the points you’re making that looked at the data. I keep saying data data. I don’t know what, how I pronounce it anymore. That looked at the data and said, Look, this is a three three three court, right? We have John Roberts and Amy Coney Barrett and Kavanaugh on the middle. And you know, there was an immense amount of unanimity and there was very unpredictable splits. And folks like me said the problem with the set you’re looking at is it weights every case equally right. It weights the swearing cheerleader as though that’s the same as invalidating section two of the Voting Rights Act. That’s got to be wrong, and that’s what the problem is with those. Those crunches of the 57. Whatever merits cases is it doesn’t wait for, you know, what is consequential. But I think it also doesn’t take into account those shadow docket cases. And so I think there was a sense that we’ve got the set wrong and that’s why those conclusions were wrong. And I guess the last thing I would say and fight me on this because I think it’s really hard to prove this empirically. But even some of those eight, one, seven to two cases, I’m thinking of fault in the foster care case. It may look like it’s not doing something consequential, but it’s actually changing a test and it’s changing a test in the footnotes. So help me look at this not as a set of and merits cases that we slice and dice. But is there a way in which when the court looks like it’s doing something unanimous, but in fact the land moved, the doctrine changed, and we certainly saw that in that COVID case you’re describing from April. How do we account for all that?

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S4: OK. First, let me push back on the first point. And the first point is that it if you only kind of look at the important salient cases from last term of a very different picture emerges, then the kind of standard Roberts court picture. And I’m going to push back on that. There were, I think, 11 cases that made the front page of the New York Times. So that’s one way to think this is an important case, right? We could talk about definitions, but let’s just do that. And if you look at those cases, there were. OK, so we’ve got the voting rights case, that’s a clear loss for the Democrat side of the court. But then let’s go down the line. We’ve got all the and I’m talking not just, I should say, not just the other 11 cases made the front page of the New York Times. I’m counting the emergency cases. So those are in there. Go down the line. Look at the twenty twenty election challenges. Right. Look at the Trump tax records. Obamacare, the cheerleader case. So we’re, you know, we could go down these 11 cases, but this was not a total blowout for the Democratic side, which to me was a little unexpected. You know, think about the counterfactual where they strike down Obamacare. They didn’t do that. And the cheerleader case, right? So a win for free speech, NCAA, the student athlete case. All right. So I’m going to push back a little bit on that point. If you just look at salient cases, the term looks different, actually. It doesn’t look that much different in trying to get at the doctrinal aspects that, as you know, very, very hard empirically. And I think Fulton is the best example there of. Yeah, the Democrats were on the winning side of that case, but what did they actually win in that case? They got a little save on the doctrine, but the doctrine did move and that that’s hard for me to do with data. I think that’s hard for anyone to do with data. So I take your point. I take the second point. The first point, I’m going to push back.

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S1: So if we meet in the middle and we agree and I think you’re framing, by the way, is exactly right that there are two different stories being told right now and one is a very overheated. The court is a bunch of feral dogs gone mad. And democracy is about to crumble. That you’re saying is not certainly not reflective of last term. And then my question is how do we deal with the fact that a lot of court watchers seem to be experiencing this feeling for the first time, that this second narrative that busted out, I think really turbocharged by the the eviction moratorium ruling in the Remain in Mexico ruling and the SB8 ruling, all of which happened in a really compressed amount of time on the shadow docket and then really into orbit by the speaking gigs, the Amy Coney Barrett and the Justice Alito and Justice Thomas and Justice Breyer the charm offensive all summer. So now we’re in this funny, weird world where and I think you’re telling me it’s over correcting for the benign narrative. But my question kind of remains the same why this seems to be the cycle. And I know you’ve watched enough cycles to know that this is very familiar to you. But like you start, we all start from the place that look. The court is fundamentally a political institution. The court likes to pretend it’s above politics. The press corps largely agrees with the court that it’s above politics. Something happens. The court behaves politically. I’m thinking of Bush v. Gore. The court behaves politically. The press corps is baffled and the public is angry, and the political scientists just stand around and say, like you chumps. And we’re definitely in one of those cycles, I think. And I guess my question is, how do you looking at the data, looking at the numbers? No. When we’ve jumped from that first story of the court is essentially above politics, calling balls and strikes into that. Second, it’s politics all the way down story. Or maybe the way to reverse engineer the question Lee. How would you who I think feels like we are way over telling the court is purely partisan story right now. How would you know when it’s the break, the glass moment and the court really is purely partisan?

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S4: Well, you know, looking at the data, I tend to look at the partisan vote splits. In the data, so that tells me a story, I look at the voting patterns of the individual justices kind of their entire agreements. I look at things like the salient cases, how or the the high profile cases going. So those are the kind of indicators I look at when I see unanimity rates. And again, you know, people are going to quibble. They’re going to say, Well, it wasn’t really a nine zero and eight one because there were six concurrences and they didn’t agree. And the but straight voting up or down, not not looking at the doctrine. I, you know, I see a court that tells me a story about the court, too. So again, I have to say Dahlia, I’ll be honest, this was a very hard term to analyze very hard because of these two different kinds of courts operating of this kind of socially conservative, aggressive court. To me, abortion is driving a lot of the narrative. I mean, that’s that’s what I keep seeing and reading. And over and over again again, I’ll ask you a question. What if they had stayed the Texas law? Would we be in this kind of crazy partisan cycle right now?

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S1: Yeah, I mean, my strong sense is that if they had stayed it and just waited and taken this in December, as the, you know, the Dobbs case and in June came down with some apparently reasonable, you know, we’re just fudging the lines on an undue burden or we’re you know what majority of what what are the numbers of women who need to be burdened? They could have, I think I really believe what I said at the beginning. I think they would have had a 57 percent approval rate this fall. And so the cost, I mean, I just keep saying it was this cellphone because there was an immense legitimacy cost, and I still don’t understand to what end. And I think that’s what you’re asking that this is an unforced error where the court, given that it was taking on guns and abortion and probably affirmative action and religious liberty could have behaved in a way that would not have sent the country into orbit. And so I think one of the reasons I wanted to talk to you is if you and I agree and I on this, I think we agree that the only weapon the court has is its legitimacy. Why would you set that on fire in a big dumpster the week before the term starts?

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S4: So I think you’ve answered your question, which is what has driven this, this orbit? And I think abortion is a lot of the answer as to what has driven it. I that that the Texas abortion case and thinks the world would look a little different today had they not done what they did. So there’s a couple of stories to tell about it. I mean, one is a lot of my conservative Fed SoC type friends tell me, Look, Kavanaugh, Gorsuch Barrett, they were put on the court to overrule Roe versus Wade. I don’t think you think that’s going to happen. I don’t think that’s going to happen. But they were put there to do that. And. This is kind of a step in that direction, so that that’s one narrative. The other story to tell is this is really about Brett Kavanaugh. Brett Kavanaugh could have could have prevented this whole news cycle that you were referring to. And what is what is going on in his mind? I haven’t a clue, right? If you look at the data, he’s normally not always, but normally with the chief and why he didn’t join the chief here is is perplexing to me. So I, I I could tell a bunch of stories, but I’m making stuff up here right about what what’s going on.

S1: So for me, Lee, the last piece of this is the justices reaction to this story, because it seems as though what I find fascinating is that and again, this is the water you swim in. But when Adam Sir writes a piece in the Atlantic that says, Hey, the court just wants us to believe this ridiculous bunk about their non-partisanship, right? He says the quote is the conservative movement seems to have secured the court for a generation, at least. But that is insufficient. The right wing justices also demand their decisions be seen as the outcome of dispassionate legal reasoning, not partisan warfare. And this is the thing that sends Justice Alito over the edge. So then Justice Alito goes to Notre Dame. Initially, the speeches like close to recording, they finally relent and put up a live stream, and then he just rips into Adams Sowore. And I don’t mean to name Chuck Justice Alito, because Justice Thomas has said the same thing in recent weeks. Justice Barrett has said the same thing in recent weeks. So has Justice Breyer all summer long. But it is fascinating how triggered they are when people start to talk about not just the numbers and the data that you’re sorting, but the claim that their oracular that seems like it’s the false consciousness that makes them crazy. And I guess, you know, this is this is the question that’s been driving me for a few weeks is when Justice Barrett flies out to Kentucky and stands next to Mitch McConnell, who, you know, is still spiking the football for taking that Scalia’s seat for himself. And she says, we’re not partisan hacks. Does she really believe the balls and strikes story? Or are they just so affronted by the fact that there’s a political story being told? I don’t get it.

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S4: You know it. It’s actually hilarious, right? I mean, they they have live. It is. It’s hilarious. They have lived through these confirmation proceedings. You know, why are these confirmation proceedings so ideologically and partisan driven? Because everybody knows that, you know, once they’re on the court and Elena Kagan is a very different person then and Amy Coney Barrett, right? We all know that it’s just hilarious. And they’re in the center of it. So I think they get this. Of course they get this. So here’s the way I think about it. What are they supposed to say or are they supposed to go out there and say, Hey, yeah, you know, this is this is really a partisan court. This is a political branch of government. Should they say that? Or just should they say nothing? You don’t hear, for example, Elena Kagan talking a lot or the chief talking a lot. They’re very quiet. They don’t, they don’t say much. So what are their alternatives?

S1: Am I right? Lee that after the brethren, the famous Woodward and Armstrong exposé on the court that that really did, I think, leave that oracle narrative, you know, in a smoldering heap for a long time that the justices really did stop talking, that they did. They were meticulously careful. I’m thinking of Justice Brennan, I think, who just stop giving public speeches. You know, they just made the decision that they had just been shelled the public, you know, the curtain was ripped off. Oz was revealed to be like a little fat guy behind the curtain, and they just stopped trying to persuade the public and something seems to have happened. In fact, I can recall because it was the beginning of my beat. Justice Scalia sort of slowly, reluctantly creeping back into the public eye and saying, You know, I’m going to just talk, I’m going to I’m going to really take it outside the four corners of the opinion, and I’m going to tell the world what I think. So am I right that these decisions to to sort of the question you’re pointing up, does it serve anything when they talk about it? That that also responds to these ebbs and flows in legitimacy?

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S4: It could, you know, as an empirical matter, I don’t know what I know from the work that I did with Posner and Landis is the justices are definitely not all. The justices are definitely out and about more talking. And, you know, Dick would say, well, it’s part of the perk of being a justice, right, that sort of celebrity culture that they like being out and about. So what should they say when they’re out and about? And, you know, they have these massive audiences out there listening to them. Look at Ruth Bader Ginsburg. My gosh, no. And she talked about anything and everything,

S1: and she was Beyonce. Right? That she I mean, she couldn’t fill the stadium and people were all wearing the color. Right?

S4: And so some people have done this. Ruth Bader Ginsburg incredibly effectively, even though they’ve put their foot in the mouth on occasion, we can think of some of the Ginsburg bloopers. But but. So why now? When the justices have been doing this for a long time, you know, maybe there was a gap after the brethren, but they’ve been out there talking and they’ve made the claim. You know, it’s law all the way. We’re not policymakers. We’re not a bunch of politicians in robes. I’ve heard the speeches so many times. So why now are there speeches which are running somewhat along the same lines, getting so much attention? I would. I would throw that back to you.

S1: I mean, my sense is that they’re getting attention and this is this is just my very thin skin showing. But boy, the press does not like to be blamed for this. And you know, when you see Justice Alito snarky thing like, you know, we don’t dash off our opinions the way journalists dash off their crappy little columns, I’m paraphrasing. You know, it feels a little like shooting the messenger. And I think that and that across the board, right? I mean, every single justice has had horrible things to say about the press, but I do think that there has been a really fierce. Particularly Justice Barrett. Two weeks ago, Justice Thomas two weeks ago saying, We are not partisan. The press is painting us as partisan that is blowing up in their faces. But I guess my other question, if that’s right, I mean, I just think you don’t want to attack. First of all, you don’t want to lock those people out of your speech and say they can’t come and not provide a transcript and then go into a room and say horrible things about them. It just seems like this is pollster 101 bad ways to handle your image. But I guess the other thing is, if that’s true, that one of the things they’re doing, that’s becoming quite quite. Polemical is attacking the press, then I would also want to ask you whether it’s dumb to attack the press or whether that’s smart.

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S4: I think that’s kind of duh. I mean, you know, like, you know, how many people out there actually read Supreme Court decisions, right? Everything that people know about the Supreme Court comes from reading your column or or this Atlantic story. Pick your pick your favorite website or your favorite newspaper or whatever. Everything people get is from the press. So why turn on the press? It seems like such an odd strategy.

S1: Can I can I ask just because I’m thinking of a column you wrote in 2018 where you said, if this persists, this polarization and the American sense that all of the liberals are appointed by Democrats and all the conservatives are appointed by Republicans. This really is. I think you warned this clear as a bell public legitimacy is going to suffer. That’s happening now, right? I mean that it is clearly in the discourse that this is just a purely partisan court. And I guess I I have a two part question, which is why does it matter? Maybe it’s good that, you know, the scales have fallen from everyone’s eyes and everyone can see that they really are just a purely partisan body. And I guess related to that is when is it time to panic? Because there’s an election coming up and that’s the court that’s going to decide the election.

S4: Well, that that’s time to panic right there. Right. And and I think, you know, the commentary on the court with regard to elections and voting rights is probably the the scariest of the commentary that I read, right? What what this court has done and and so that that may be time to panic, but, you know, looking throughout history. The justices have been very good at pulling back, and this may be the pull back moment. Right it it may be the time when they’re saying, Oh my gosh, we the there is nothing good being said about us. Well, in the liberal press, there is nothing good in the liberal press, the mainstream press that’s being said it. It’s time to pull back and they can read the polls on abortion. They can read the polls on guns. They’re there, you know, they they’ve been able to do it throughout history. And I think Roberts has understood the importance of doing that. The question is whether Kavanaugh understands the importance of doing that. The ball is in his court. On a lot of these issues we’ve talked about, not voting rights. Voting rights is a different issue.

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S1: It’s so interesting because what you’re saying reminds me that I always have to ground these conversations in. In five years we’ve gone from Anthony Kennedy is the median justice to Brett Kavanaugh is the median justice and from from where you sit? Matching the numbers. That’s a sea change.

S4: That’s a sea change. And it’s it’s a change in terms of the level of uncertainty. I mean, Kennedy was a little quirky, as you know. But there were certain issues on which his vote was highly predictable. Give me a First Amendment case. Give me a due process case, right? Kavanaugh is a little, you know, at this point, it’s a little harder to predict. And the other point to make is we got used to a court very driven by one Justice Kennedy and before him, O’Connor. This is not I mean, I do think in the abortion case, Kavanaugh is pivotal, but going down the line, you know, Kavanaugh, Gorsuch and Barrett right now, their voting patterns are very, very close. And we even see that kind of court in a long time where there’s sort of this soft middle. And that also creates uncertainty and less predictability. You know, going back to your comment about the brethren, it’s like the Stuart Powell white days where they could jump over and form different kinds of coalitions, and it makes the court. This is why we had some trouble analyzing this term. It makes the court a little less predictable, a little more uncertainty.

S1: So this is this is a, I guess, a really hard and thorny question for me, Lee. But I always get the sense that you can write about things in a clear eyed, more clear eyed way than we in the press corps could do. And I’m thinking that when Fulton came down last spring, that’s the foster care case. So many of us were trying to pass the footnotes and trying to understand the exemption requirement and had this hollowed out employment division versus Smith trying to pass what had happened to the free exercise test. And there you were, writing a paper, I think, last April, with Eric Posner just explaining the court’s increased willingness to vote in favor of religious plaintiffs through your empirical accounting through your data and essentially just saying, Oh, this correlates to not just to the justices faiths, but also to how strongly held their faith views were. That’s the kind of thing that would have had me run out on a rail. It’s not permissible to speculate about such things if you were a constitutional law professor or a reporter, and it raises this question for me, are you looking at this in a really clear-eyed empirical way? And are we just looking through our constitution tinted lenses? And if there is in fact, this immutable wall between how you analyze the court and how we analyze the court? Is there some way we could meet in the middle?

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S4: Oh, well, you know, I think I think that that may be a too much of a a black and white depiction of me black and white.

S1: OK, go ahead.

S4: You know, I think I think it’s more nuanced than that. A lot of journalists, I speak to, a lot of journalists. I provide them with data, especially Adam Liptak at the New York Times. He uses a lot of data. I, I I think they use the data very appropriately. And so I don’t see it as so polarized between what political science or sit are saying, and the press is saying, you have somebody, you know, interested in conveying the doctrinal changes, which is great. Right? We need to know the data. My generalized data aren’t going to tell the whole story. And so the the idea of building in nuance, in the decisions as you do all the time Dahlia, I think I think that bridges the gap very nicely, you know, combining the data with what you’re reading in the opinions. I applaud that.

S1: But do you think, I guess, just to press it one one notch further that, for instance, during Amy Coney Barrett’s confirmation hearings last year, where it clearly became out of bounds to talk about the intersection between, you know, her faith in her religious writing and how she would perform on the court. And that was seen as absolutely, I think, across the board. That was the rule of play, would you if you were advising Democrats on the Senate or I guess Republicans on the Senate have probed that more deeply? Or is it the kind of thing that you can measure empirically after the fact, but there’s no way to press on it in a confirmation hearing?

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S4: You know, I think the whole issue of kind of identity is important and it’s going to test it will tell a lot, right? I believe the data that Eric and I analyzed and show religious identity, the degree of devout miss religiosity matters. It affects the justices, in particular kinds of cases. The question is, what is someone going to tell you right that you’re going to ask, Well, you know, you’re you’re a very devout X-Y-Z. And how is that going to affect your judgment? What are they going to? What are you going to get out of those kind of questions, except to a lot of ire from a lot of Americans? I always think in terms of race, specifically religion, what if the president appointed the first Muslim to the Supreme Court or the first atheist to the Supreme Court? Would religion be off bounds then? Is religion off bounds only for kind of mainstream Christian religions? I don’t know the answer to that, but it it strikes me that religion has been off the table because of the kinds of religions that have been in the Senate confirmation proceedings.

S1: So I think let’s let’s wrap with this with the caveat that you’re like a little bit blowing my mind here and I have to really sit and think about some of some of what you’re saying. But it does feel to me as though there’s two through lines in our conversation today. One is a lot of this is Roe, right? Just an immense amount of this. If you factored out abortion, both in terms of how SB8 played out in the way Dobbs is going to play out. Everything would look different and also everything would sound different. I think you’re saying that I am. I’m a little curious how you do that in the data, but I think there’s no way to completely do that in the data, right? That’s just visceral. Visceral. Yeah. And then the second thing that you’re saying, you know, you’ve said a couple of times, what would the justices say? What could they say in their hearings? What what are they to say in these speeches? It does feel like you’re saying the single best thing they could do if they are on this legitimacy precipice. You use the words pull back that the best thing to do to pull back would be to stop talking, certainly to stop setting, you know, the press on fire setting legal academics who use the word shadow docket like none of that is helpful. And that’s the thing they could do is just try to have they don’t even have to have a term where the data looks exactly like last year, but they certainly have to have a term where it looks like they are being judicious in oracular and not being a bunch of to use Amy Coney Barrett’s formulation partisan hacks, right? You’re saying just stop acting out and this will revert to whatever the normal fifty whatever percent approval rating is right?

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S4: I think that captures it pretty well. What we know about some of the public opinion data is the more people understand the court as an institution and how it works and what it does, the more that they like the court. So they if they want. Go and talk, and they do want to talk. You know, some of them, they love the celebrity aspect of this, at least as as as my friend Dick Posner frames it. Talk about what the court does know, how the court goes about its day to day business rather than engage in, you know, take on the press. And engage in a counterattack on on this partisan notions. It doesn’t seem to make a lot of sense to me.

S1: So if you could predict whether you think they get it now, they understand somebody has popped their head in the chamber and said, just stop and try to have a business as usual term and don’t give these speeches. You think it would settle out? Your sense is that we are not at the precipice of a huge kind of Warren Court style. Send in the National Guard because the public is not with you. We’re not there yet.

S4: I don’t think so. I think that they can do a number of things. Docket control is very important. They’ve taken a couple of High-Profile cases this term. How many more do you really want to take? Do you want to get into diversity programs this term? I think they can. They can do it. This kind of emergency app thing is just way overblown. No, everybody talks about the abortion case and immigration and so on. But nobody really reported the fact that Amy Coney Barrett didn’t even refer to the court, the Indiana vaccine mandate that doesn’t get reported. She just says, Yeah, sure, fine. We’re not and don’t refer it to the court for a vote. So I think they do have to to lay a little bit low. Exactly what you’re saying. If they’re going to talk, talk about the court, the court’s role in American history, whatever. But but there’s no reason to go out and and take on the press if that’s in fact what they’ve been doing.

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S1: Right. I love that because it’s I’ve always said the court’s legitimacy lies in showing its work right? Show your work. That’s what Justice O’Connor used to always say. And that, I think, is the reason people feel wobbly about these emergency orders is because a paragraph with one case citation saying, didn’t you read our last shadow docket order doesn’t feel like showing your work?

S4: Right? And I get I get that. I get that part, but we’re not talking about a ton of cases here. And if you I’ve started to look across this entire, I hate the term shadow docket, by the way, so that’s why I’m not using it. If you look across all these emergency requests that they get, they’re. If I analyze those data, this is going to look like a pretty legalistic court, to be honest.

S1: I cannot wait, I can’t wait to read it, and this is just it’s always just a treat to hear you mirroring back some of the ways in which, like my false gut, it’s just so deep seated. Professor Lee Epstein has been looking at the courts through the lens of political science for an incredibly illustrious career. She’s the Ethan eight Shepley Distinguished University professor at Washington University in St. Louis. She’s also co-director of the Center for Empirical Research in the Law and the principal investigator of the U.S. Supreme Court database, Lee. I know you were swamped today. I cannot cannot thank you enough for coming and bringing your great brain to our show. Thank you.

S4: Always fun to talk with you. Thanks for inviting me.

S1: So now we are at the best. I mean, truly the best part of the best podcast in the world, which is talking to Mark Joseph Stern, Slate’s court watcher extraordinaire, about all the stuff that nobody else is brave enough to talk about behind or in front of a paywall. Hi, Mark.

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S5: Hi Dahlia, how are you doing?

S1: I’m good. So listen, we at the very beginning of the show, played a little bit of Justice Sam Alito’s charm tour at Notre Dame last week. And that’s in some part, thanks to you. You were tweeting out bits of it along the way. Do you want to tell us a little bit a little bit about the on again, off again recorded, not recorded public private neutral partisan speech that Justice Alito gave the world about transparency and openness, of which there is no recording?

S5: Yeah. So I mean, there may or may not be a recording. I certainly would never violate Notre Dame’s intellectual property. So, you know, I’m not saying that we have a recording here at Slate, but the event was live streamed after initially being scheduled to be totally sealed off right when it was first announced. Notre Dame said, Hey, we are going to have Alito come and give this talk, and there will be no cameras, no audio, nothing for the general public press. If you can drag yourselves to South Bend, then we might let you in, but you’re not even allowed to record it. And there was a lot of backlash. And so then the event was live streamed, but not archived by the school. And so we are we were all left with, I think, some of the clips I put out there and I think a little stunned in slack-jawed by the epic miscalculation that Sam Alito must have done here in his head before giving this speech. Because I mean, I think we agree on this, right? Like this was such an unforced error. All he had to do was keep his mouth shut, and he couldn’t even do that because he is Sam Alito. So instead, he had to give a grievance laden rant about how mean the press is to him and about how much greater the court is than everybody realizes. And it just sounded petty and kind of craven and kind of pathetic to me.

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S1: And since we are the press and clearly the problem because God knows the court is not partisan or political, never, it’s never. But I think now’s is a good time to note that in addition to his, I guess, he got through nine of his points refuting arguments about why the shadow docket is bad glugs. Some water like that said, I’m almost done here and then dove back in. One question I really do have, and I know we talked about this when Amy Coney Barrett thought it was a good idea to go to the McConnell Center and fat Mitch McConnell, that nonpartisan lover of an oracular, independent judiciary. And it was such, again, a spectacular cellphone. And we at the time I remember asked ourselves, you know, is she clueless? Does she think we’re clueless? Like, How does this go? And I think the answer was, I guess she’s just clueless about how this lands. But does Sam Alito watching the massive blowback against Barrett’s speech, which again off the record? There’s no transcript. Reporters were moved to the back of the room and there was no recording to Sam Alito. Watch that blowback and think you know what a good thing I could do right now is. I think I’m going to go do another one of those that’s also offer a curtain unrecorded and who advises these people like it feels like you know how most people have like a damage control team? Do they have a damage team? Like did? They have a team that just races in and says, OK, the court has a 37 percent approval rating, the lowest since Gallup has been polling. Let’s make it a little worse. Do they have that guy who is that guy? I want that guy to give us some advice on this show.

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S5: Well, well, this is exactly the problem, right? They don’t have that guy. And that’s the issue when judges act like politicians. They don’t have the support staff that politicians have today, right? If you’re a senator, you’ve got several people in your orbit whose loan job is just to keep up your approval rating in your public image, right? They’re not concerned about policy. They’re not concerned about the merits of individual votes. All they’re thinking about is how can we keep Senator Smith’s approval ratings above water and get him to re-election, right? Those people exist for everybody in Congress, but they don’t exist for Supreme Court justices, and they probably never will. Although at this rate, maybe some of these justices would consider paying out of pocket for some image consulting and brand management. But, you know, Sam Alito just runs it by his clerks when he thinks I’m going to go give a speech. And his clerks are, of course, obsequious and you know, they have to show fealty. And so they just say, yes, they’re rubber stamps, and then he goes and does it. And I think it’s remarkable because as you noted, this speech was about the shadow docket, right? This was Justice Alito trying to defend the court’s spiralling use of the shadow docket to resolve a huge number of really important cases and dramatically alter the law. And one of the perks about the shadow docket is that if you are using it, you don’t have to explain yourself, you don’t have to defend yourself. Elena Kagan and Sonia Sotomayor and Steve Breyer can write eloquently and passionately about how wrong and messed up it is that you are issuing these monumental orders in the middle of the night, altering the law without arguments or briefing, but you don’t even have to respond. It’s not a regular opinion. It’s a little one paragraph order, and you can just turn up your nose and say, Too bad, I don’t care. And Sam Alito voluntarily surrendered that perk. He was like, You know what? No, I do care. I do want to go out there and respond to these people who have frankly thought a lot more about the shadow docket than he has. And he came across, I think, looking like a very thin skinned clown, particularly going out there and attacking the press. Quoting a line from an article by Adam Serwer of The Atlantic that had criticized the court going after individual journalists. All of that is unnecessary. All he had to do was was keep his lips zipped and he was incapable.

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S1: So I want to just make two other points because it does behoove us to move on, but to other very serious points that I think got a little brushed over. One is the one that you made that when he name checks Steve Vladeck when he name checks, Mark Tushnet when he name checks. Adam, sir, this is not an inconsequential thing. Those people don’t have federal marshals protecting them. It is really in addition to how deeply, deeply damaging it is to, you know, the only profession protected by name in the Constitution, the free press to continue harping on how awful we are. There is a really serious asymmetry here for a justice with life tenure, a public figure attacking individual journalists and law professors. And I think, you know, and I’ve said this before, I’ll say it again, this contempt for journalism and the public that is on display and it’s not, by the way, just Sam Alito. This was Amy Coney Barrett. Blame the press, and Clarence Thomas blamed the press across the boards. The one bipartisan principle seems to be that we’re political. They’re not. But I just want to point out there’s one other piece of this which is these people actually construct policy about rights of access and the rights of the press and the relationship between the public and government. So it’s not just, Oh, I’m beefing about, you know, I don’t like the press, I don’t like public access. It’s actually they’re creating doctrine. And I think that’s a thing that we jump over in these conversations. I think it’s really terrifying. The other thing that I think we jump over in this particular context is that justice after justice sit in their confirmation hearing and tells us they can’t talk about pending cases. And Sam Alito took to the dais at Notre Dame and talked about a bunch of pending cases. So what’s the role? I mean, I know there’s an ethical rule that they cite, too, that says they can’t chatter about things that are going to come in front of them. I would imagine SB8 is one of those things.

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S5: I mean, the rule is when you have life tenure, you get to do whatever you want, right? When you’re sitting before the Senate, you haven’t gotten that confirmation vote, you still. To pretend like you’ll follow the judicial ethics rules. But then once you’re confirmed, if you’re a Supreme Court justice, those rules don’t even officially apply to you. I mean, there’s no one to check your conduct or force you to recuse or keep you in line. You are a kind of free agent, and Alito is reveling in that freedom right now. I think we can acknowledge that sometimes the liberal justices will take a step or two into talking about a case. Justice Sotomayor did this at an RBA conference, but then she stepped back and she sort of checked herself and said, Oh, well, I can’t really talk about this. And I’ve heard her do that at other events, and I think it’s, you know, a human instinct to talk about something you’re very engaged in. But then if you are a real judge, you remember, Oh, wait, I’m not allowed to do that. If you are Sam Alito, you say, OK, let’s do 70 minutes straight talking about these cases that are before me that I will vote on very soon.

S1: OK, having said, we were not going to talk about Sam Alito for 20 minutes, we just talked about Sam Alito for 20 minutes, that’s 20 minutes. Neither you nor I will get back in our lifetimes, but let’s turn to something that is actually, in some sense, even more serious. You and I started the week writing about how the program has really shifted from vote suppression to election subversion, and that this isn’t something that is cured by get out the vote. This is something that looks like it almost happened in 2020, which is just having states throwing out majority votes. And you and I talked about your hero and mine, Jeffrey Clark, would you like to talk just a tiny little bit about both, about what we now know he did, and there are really revelations coming out as you and I are taping this. And also actions taken against him and John Eastman and other vote subversion ers.

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S5: Yes. And I encourage everyone to at least skim the Senate Judiciary Committee’s new report on on Trump’s attempt to steal the election, which is called Subverting Justice, which told us even more about the efforts to steal the election. So Jeffrey Clark, Jeffrey Bossert Clark, I knew

S1: you were going to do that. You cannot. You can’t walk away from the buzzer. You do it.

S5: Every just can’t. Apparently, he demands that all of his colleagues use his middle name. This isn’t one of those New York Times profile. So, you know, let’s be respectful to the COO. A better here. Jeffrey Bossert Clark was at the Justice Department and kind of mid-level official in the final months of Trump’s presidency, and he worked with Donald Trump to hatch a plan to fire Jeffrey Rosen, the acting attorney general, replace Jeffrey Rosen with Jeffrey Bossert Clark and then Jeffrey Bossert. Clark would send out letters to state legislatures in swing states that Joe Biden carried, telling them that, according to the Department of Justice’s own work there, there is evidence of mass voter fraud in all of these states that these state legislatures need to reconvene on their own and assign their electors to Donald Trump instead of Joe Biden handing Donald Trump a victory that he did not win legitimately. Jeffrey Bossert Clark did not succeed in doing this only because there was a threat of mass resignation at the Justice Department if he carried out the plan. But we now know and have confirmed things to the Senate Judiciary Committee that he and Trump were deep in discussions with this, and he. Clarke also discussed it with Rosen and said, Oh, hey, Jeff Rosen, you know, if Trump fires you, I’ll give you a new job beneath me at the Justice Department, which I think is the definition of chutzpah right there. Anyway, it didn’t work. Jeffrey Bossert Clark, however, remains a practicing lawyer. He is a bigwig at the new Civil Liberties Alliance, which is a conservative group that fights the administrative state stuff like vaccine mandates and eviction moratoriums. And he is still enjoying all of the benefits of practicing law, and I think that is alarming because it’s not just that the KU abettors need to face retribution, because that’s justice. It’s that we need to show that there are real consequences for engaging in this kind of lawless, radical subversion of democracy, and that lawyers who use their licenses, as Clark did to try to nullify millions of votes and reverse the outcome of an election that that’s not a legitimate use of a law license, that that is in fact, quite lawless. And so a group of lawyers, really powerful, bipartisan group of lawyers has filed a complaint in D.C. attempting to launch an investigation into Clarke’s conduct that could lead to his disbarment. We also learned on Thursday that the Senate Judiciary Committee made a referral in D.C. that could lead to the investigation and disbarment of Jeffrey Bossert Clark. I think that is a great and really important first step, if only to warn the clowns who are going to come on the scene in 2024 to try this again that they will face at least some minimal consequences. I don’t know if it will work. There’s a pretty high threshold here, especially if Jeffrey Clark hires very powerful lawyers to defend him, which he’s going to. But it’s encouraging to start to see the threat at least of real consequences for the guys who who abetted this failed coup.

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S1: And mark, it’s not just Jeffrey Bossert Clark, it’s also John Eastman. Correct?

S5: Yes. That’s right, John Eastman, the big shot conservative lawyer closely affiliated with The Federalist Society, led its most powerful practice group for many years. John Eastman was the architect of the plan that was promoted on January 6th. He spoke at the Stop the Steal rally endorsing this plan for Vice President Mike Pence to throw the election to Trump by refusing to count electoral votes for Joe Biden. Lawless, flagrantly illegal plan here. But John Eastman thus far has not really faced any consequences. He resigned voluntarily from Chapman, where he was teaching, but he still leads the Claremont Institute. He is still working on briefs, filing them at the Supreme Court as we speak on behalf of Claremont. He is still a lawyer in good standing, but now a bipartisan group of bigwigs of real legal luminaries has filed a complaint with the California bar asking for an investigation that could lead to Eastman’s disbarment, pointing out that a huge amount of what he did up to and on January 6th was extremely unethical unscrupulous, arguably illegal behavior that violates great swaths of the code of conduct that California attorneys must adhere to

S1: just to make one coda point. That is really serious. I think a lot of us, particularly you and I mark, have expressed immense amounts of frustration at the failures of big law, the failures of inside the Beltway, Washington lawyers, the failures even of the Biden administration to really hold people to account for the attempted coup on Jan. six. And it’s easy to say, Oh blah blah, this is the guild rights refusing to protect a guild member. It’s not enough. But I think it’s worth really emphasizing that this is really different from big law opening its arms to the worst malefactors of the worst Trump policy. This is really very consequential when something as small c conservative as the legal profession says, Nope, this is a bridge too far, and that even though it feels trivial and the loss of one’s law license feels trivial in the context of how little has been done. Otherwise, this isn’t nothing. And as you say, if the most you can get is to have the legal establishment say no, this time we’re not going to circle the wagons and protect this guy. That’s still not a nothing in light of how resistant the profession has been to doing anything like that.

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S5: Right? I mean, the profession is allergic to drawing lines in the sand, right? The whole theory is no lines. We’re lawyers. We got to do whatever we want. And if that meant helping a wannabe dictator kill people, then so be it. That’s within our remit. And this is an attempt, the first real attempt by very powerful attorneys from both sides of the aisle to say no, here we must draw a line. And as you said, in light of the lack of action by nearly everybody else, it’s something worth paying attention to. And at a minimum has got to be the kind of deterrence that we need to put in place in the next couple of years if we don’t want a play by play, repeat of this nightmare in 2024.

S1: OK, so we’ve talked about Sam Alito and the gulping of the water at Notre Dame, and we’ve talked about the coup lawyers. And in the midst of all that, it’s the first Monday of October the court term opened this week. Brett Kavanaugh tested positive for COVID double vexed and asymptomatic, so missed oral argument, but argument happened apace with this weird hybrid system that you described on the last show, where it’s both serious and then not serious. Them and it’s it’s kind of audio cast, so that’s good but quite confusing. And the journalists spread out in the courtroom as though they were. I don’t know. Like this the placeholders at the Oscars. OK, so it’s all very weird. Can you talk a little bit about highlights lowlights of the start of the term, separate from all the drama around that Gallup polling?

S5: Yeah. So I mean, the most important highlight is that Steve Breyer’s whispering during arguments is now live cast to the world. So I encourage everyone to go in there and try to figure out what he’s saying. For those who are not familiar, he is a longtime whisperer to his seatmates. And now the mikes seem more sensitive than ever. Aside from that, you know, I think it’s not as weird as I had forecast. I might need to kind of do a mea culpa here. The high. Situation, it works, it really does. You can’t tell from the audio that the journalists are spread out in the courtroom like placeholders at the Oscars. It sounds pretty normal. And after the free for all going down the line, asking each justice by seniority, do you have a final question? It kind of feels like regular stuff. Yes, it’s new. It used to be that there was a brawl to get the last word before the final seconds ran out. Now there’s a more orderly, collegial way to wrap up each argument. But I like it, and I almost am afraid of saying anything even mildly critical, because I love that the Supreme Court is finally live, casting arguments that there is a live stream that the world can listen to. And I really, really, really want it to continue after COVID is over. I really hope the court doesn’t go back to the bad old days of the black box. So to me, it seems like everything is feels like it’s pretty much back to normal. Brett Kavanaugh was calling in because he tested positive for COVID, but even he has figured out a way to kind of go with the flow there. And the arguments this week were fairly boring, which I think was a good way to slide into the new term with this hybrid format. The only really interesting one was United States vs. Zubeida, where Breyer seemed to possibly forget about the existence of Guantanamo Bay, and Gorsuch and Sotomayor tried to force the government to promise that it would let a current Guantanamo detainee testify in court. But you know, aside from all of that, it was just business as usual.

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S1: Yeah, it was such a funny call out to the show. We did around nine 11, just because we talked so much about mea culpa, mea culpa. We’ve all forgotten about the very existence of the torture program of state secrets, doctrine of the existence of Guantanamo, and then to have it reinforced that perhaps the justices have also forgotten about the existence of Guantanamo felt a little bit like a very, very dark cherry. On the top of that, let’s turn before I let you go mark to SB8 you and I have tucked ourselves, I don’t know, blue in the face about this, but on Wednesday night we got a very, very dramatic order from Judge Robert Pittman, the District Court judge in Texas, who already had the Texas challenges and who issued an order a really impressive 113 page order enjoining SB8 talk for a little minute. I’m sure at this point listeners know essentially what was in the order, but can you talk for a minute about what your top line view is of what Judge Pittman did?

S5: Yeah. So I guess first of all, this is another entry in the series of elections matter because the only reason Pittman was able to issue this decision is because the Department of Justice. So the Joe Biden administration filed a lawsuit the abortion providers had tried. The Supreme Court had swatted them away. But when the Department of Justice used it guts to sue a state itself, it gets to say we are suing the state of Texas. That’s not something that private plaintiffs get to do. We don’t need to wade into the muck of doctrine here. But basically, there are all these roadblocks to suing a state and state officials that fall away if you are the Justice Department. And that proved to be key here. A huge portion of Judge Pittman’s decision was explaining why all of these concerns that the Supreme Court had cited about, say, sovereign immunity. You know, bars to suing state officials. That just dissolves when it’s the Department of Justice representing the United States. And that made all the difference in this decision. Judge Pittman was able to kind of leapfrog over those complex and novel procedural hurdles that led the Supreme Court to just throw up its hands and issued what I thought was a very meticulous and thoroughly reasoned one hundred and thirteen page decision explaining why the United States had standing to sue, why his court was able to hear this case and why it had the power to issue a pretty broad injunction against the state of Texas and all of its agents, including state judges, including court clerks, including individuals who would sue to enforce this ban and saying all of those folks, when they are acting under SB8, they are acting as agents of the state. And so it is a proper use of the judicial power to prohibit them from taking any steps that would enforce and implement this flagrantly unconstitutional law.

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S1: And I want to flag the thing that you and I wrote in our midnight post about this on Wednesday night because I think it’s important. In addition to I’ve certainly I can’t think of other times that I’ve seen a judge. Put in a written opinion. Pregnant persons, because not only women get pregnant, there was an amazing I almost don’t know how to describe it. This sense that the footnotes and you noted this to me when it came down Wednesday night that the footnotes represented, I almost want to see like a Netflix series, just a deep, deep dive into what is happening to pregnant people in Texas, what is happening at clinics that are losing staff weekly? What is happening to the miner who is raped by a relative who goes to Oklahoma to try to get care? I mean, it was the first time. And here I will do my MIA culpa. I was kind of annoyed watching the hearing last week to see a white male judge and a bunch of white male lawyers arguing about pregnant bodies. I found it quite astounding that no woman was tasked with talking about this when I watched the arguments last week. But holy cow. Judge Pittman made space in this opinion. For all of the pain, all of the catastrophe, all of the crisis, all of the human absolute destruction that has happened in Texas in the last month. The stuff that just nobody clocked in that Supreme Court opinion, the shadow docket opinion where other than the dissenters who were trying to lift that up, nobody seemed to care that human beings were suffering. And just the ways in which if you remember those shadow docket COVID cases, the deep solicitude for the guy who just wants to pray, who just wants to go to Bible study, and that suffering is so acute for me. Watching Judge Pittman saying in that last paragraph, Dude, I know I’m going to be overruled. Let’s just call it what it is. I’m just one judge, but I can’t let this go on for one more day because of this suffering. To me, this was a real profound use of judicial writing and judicial power to illuminate that which the court does not want to see.

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S5: And in that respect, it felt like almost a rebuke to the Supreme Court. Not directly not saying I’m going to defy precedent, but saying, you know, you guys couldn’t be bothered to write more than a paragraph on this, and we’re just too exhausted and self-pitying to do more. I’m going to spend 113 pages explaining why I can hear this case and decide it, and also just how much devastation this law has inflicted on the ground here in Texas. And as you indicated, it was almost like a split screen decision. Right. So you had law in the body and facts in the footnotes, and the facts were just overwhelming and not always totally necessary for the legal analysis, but I think complementary in a really important way. As the judges is explaining how this law had really still used state action in the form of bounty hunters to deprive pregnant people of their constitutional rights. And the footnote about a provider in Oklahoma who saw patients who had fled from Texas almost as if over the Berlin Wall, who were raped and impregnated by their rapists, who went to a Texas clinic. And we’re told we can’t help you. The state of Texas has an official policy that you have to carry your rapists child to term that is so powerful and so important. And I think the Supreme Court’s ultraconservatives wants so badly to conceal it and obfuscate it. And Judge Pittman said, I’m not going to do that. I’m not going to let you do that.

S1: So Marc, before we wrap, can you in any way prognosticate what happens next? We already know that Texas has sought to appeal this to the 5th Circuit. My guess is the 5th Circuit is not going to be as solicitous of the footnotes as you and I. What happens next?

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S5: I mean, by the time this is released, I’ll probably be proved wrong. But I think, you know, this will go to the Fifth Circuit to what’s called a motions panel, and it really just depends who’s on that panel. There are some great Obama nominees on the 5th Circuit. If they happen to have a majority right now on that panel, then they can keep this decision in force and they can refuse to to stay it. But if it’s the bad Trump appointees who think that there are just many Rush Limbaugh’s in Texas, then we know what they will do right. They will absolutely stay this decision as soon as possible and shut down Texas clinics once again when it gets to the Supreme Court. I think all bets are off. But I do think that because so many of those procedural obstacles have been answered directly now, they’re not novel anymore. The court can’t pretend like they’ve never considered them. It will be harder for, say, Brett. Kavanaugh to hide behind, oh, all of this confusion and mystery in order to not do anything, I think that a lot of this decision was in some way kind of directed at Kavanaugh as if to say, Dude, don’t pretend like we don’t know what’s going on here. Don’t pretend like we judges can’t do anything. This is a choice not to do anything, and I am explaining why you no longer have that choice. So I’m not going to make a prediction at SCOTUS. But I do think there’s a better chance this time around that SCOTUS takes a step that keeps SB8 blocked, at least for the near future.

S1: And SCOTUS obviously has the option to do what you and I have been saying. Why don’t they do this all along? They’re going to do this in Dobbs anyway. Know on the merits docket. Have it argued and briefed? SCOTUS can just let this stand, which is what they should have done in September and do away with Roe in at least the appearance of a clean and decorous way. That seems, if you have a Supreme Court that knows that it has gone bonkers in the last couple of months and knows that the public, aided by partisan journalists, doesn’t like it, that’s the court’s play, right?

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S5: Yes, absolutely. And it’s so terrifying that our median justices, Brett Kavanaugh. But since we already know how the court aligns on SB8, it feels like it’s all on his shoulders now. So we will see whether he is the grievance addled pity party that is Sam Alito or if he is more of a chief justice. Roberts, who, while certainly personally anti-abortion and probably dubious of Roe, does not want to see states functionally overturning Supreme Court precedent before the justices have a chance to do it themselves the right way.

S1: Mark Joseph Stern ably brilliantly late at night in the morning on a train, in a plane, in a box on a fox. Actually, our producer is in a box, covers the Supreme Court for Slate.com. And if we sound a little punchy, it’s because we were both up late. Mark, thank you so, so, so much. As always, you complete me.

S5: Always a pleasure. Dahlia Thank you.

S1: And that is a wrap for this episode of Amicus. Thank you so much for listening in. Thank you so much for your letters and your questions. You can always keep in touch at Amicus, at Slate.com, or you can find us at Facebook.com slash Amicus podcast. Today’s show was produced by Sara Burningham. Gabriel Roth is Editorial Director. Alicia Montgomery is executive producer, and June Thomas is senior managing producer of Slate Podcast and will be back with another episode of Amicus in two short weeks.