Dahlia Lithwick: This Ad free podcast is part of your Slate Plus membership.
Speaker 2: I can’t think of anything that this would truly compared to in the modern court’s history.
Speaker 3: The point is that the spouse of a Supreme Court justice was actively engaged in trying to overturn the election in multiple pathways.
Speaker 4: Tantamount to a revolution within a constitutional crisis.
Speaker 2: There’s a connection between what the January six committee is doing right now and the Supreme Court. And that connection is actually not Ginni Thomas.
Dahlia Lithwick: Hi, and welcome back to Amicus. This is Slate’s podcast about the Supreme Court and the law. That’s my beat at Slate. I am Dahlia Lithwick and this week was rather a lot. We got a whole bunch of new decisions from the Supreme Court. We had two days of January six hearings, while January six denialists were being voted into state election offices.
Dahlia Lithwick: And we got yet more news about, well, you guessed it, Virginia Lamp Thomas, who evidently corresponded at least via email with John Eastman, who was the principal legal architect of unconstitutional and illegal efforts to halt the certification of the 2020 election. Now, on Thursday night, the select committee that is investigating January six sent Ginni Thomas a polite request that she come in and chat with them. She told The Daily CALLER that she would be delighted to stop in and, you know, have a little chinwag.
Dahlia Lithwick: Later on in the show, I’m going to be talking with Mark Joseph Stern about a couple of the cases the court handed down this week and some trends we’re beginning to see toward the end of the term. And I also talk to him about Dobbs or mania that leads a lot of court watchers to insist that every decision day is a Dobbs day. That segment is crafted exclusively for our Slate Plus members who we thank so much for supporting the journalism we do here at Slate magazine.
Dahlia Lithwick: We also have a special announcement about a new Slate live event that is happening next Thursday. I’m going to be part of a panel with my Slate colleagues unpacking everything you need to know about all of these Supreme Court decisions and more. It’s happening next Thursday, June 23rd, live in New York at the Bell House. I’m joining in virtually. But Emily Bazelon, Mark Joseph Stern and Kristina Ketterer will be there in person. There will also be a live taping of this season of Slow Burn. So head on over to Slate.com slash supreme to get your tickets now.
Dahlia Lithwick: But first, how do you begin to describe whatever it is that is happening right now at the U.S. Supreme Court? To be sure, there are some conservative legal pundits and groups who want us all to believe that everything is fine there and oracular and good and just. And then a couple of liberal bullies are spreading leaks and they are threatening violence and fomenting unfair criticism of Justice Thomas’s wife. And they’re doing this in order to destabilize a perfectly perfect, high functioning institution. Indeed, some groups are now spending hundreds of thousands of dollars on ads to make exactly that case. But most of us with actual sentience and cognition, would probably agree that whatever it is that’s happening at the court isn’t actually the result of an external smear campaign or public intimidation. They’re probably aware that something is really different inside the court and it feels like the wheels really are starting to come off.
Dahlia Lithwick: So, yes, it’s the leaks, but it’s also the accusations that are being leveled among the justices in their speeches, but even more so in their opinions about one another. It is the partisan political conduct that under any other circumstances, the justices would just stop and they would stop in the interest of protecting the institution itself. And yet the stopping is not starting. And instead of getting better, it just seems to get worse.
Dahlia Lithwick: And this is all happening, I would posit, because the carefully burnished narrative of the non-partisan, non-ideological court has now collided with the bare knuckled political story about the court that has been kind of hidden away, at least since Nixon reshaped that institution in his own image in the late 1960s.
Dahlia Lithwick: What is happening right now is essentially just a big public display of partisanship in power. And my own guess is that institutionalists curator of the myth of the Oracular Court, Chief Justice John Roberts, is probably spending most nights, as one of my colleagues at Slate quipped this week, just sobbing. Quietly into a very, very high thread count pillow. So today we’re going to bring two of the smartest court watchers that I know, both friends of this show and dear friends of mine to try to unpack what is going on and how this can possibly resolve not just at the end of this term, but going forward into the future.
Dahlia Lithwick: Joan Biskupic is a full time CNN legal analyst and author of several important biographies of Supreme Court justices, including, most recently, a biography of Chief Justice John Roberts titled The Chief The Life and Turbulent Times of Chief Justice John Roberts, which was published in 2019. And Richard Hasen is Chancellor Professor of law and political science at the University of California, Irvine. He will be moving in the next few weeks to UCLA, to their law school. Hasen is a nationally recognized expert in election law and campaign finance regulation. His most recent book, we had him on the show to talk about it this past spring is cheap speech How Disinformation Poisons Our Politics and How to Cure It.
Dahlia Lithwick: So, Rick and Joan, welcome to both of you. Back to the show, especially in a highly, highly, highly tiring and jammed week in June. Joan, maybe let’s start with you, because I’ve heard you say many times over the course of this past term, and this goes back to the court issuing the shadow docket decision in Texas’s SB eight. I’ve heard you say over and over again that things are just markedly different and quite tense at the court. And now, just in the last few weeks, we’ve heard Justice Clarence Thomas taking swipes at Chief Justice John Roberts in speeches. We’ve learned that the law clerks are, I guess, having to turn over their phones to be searched as part of the leak investigation. We read Sonia Sotomayor writing in dissent, essentially calling out her colleagues as conservative political hacks.
Dahlia Lithwick: And I want to start by just asking you how different all this is from the normal quantum of anxiety we always see at this time in June when the big ticket cases are coming down. And I also want to ask what it means that this kind of polarization and ideological anxiety that almost never leaks out into public view at the end of the term now feels like it’s just spilling out around the justices ankles and down into the plaza.
Speaker 2: It is different. And, you know, we all hate using the word unprecedented, but I can’t think of anything that this would truly compared to in the modern court’s history. First, just look at the building itself, an eight foot high, non scalable fence, then surrounded by even more concrete blocks. They are so barricaded in there right now and there’s a real sense of being under siege, not just physically, but think of the justices and all the scrutiny on them handling the most substantive cases that they have had in half a century, no matter where you fall on the question of Roe v Wade. It is so gigantic that they’re now on the cusp of rolling it back again. Whichever side you’re on, if you’re looking at that with horror or with glee. This is a big half century turn that appears about to be taken one way or another.
Speaker 2: So between that gun rights, religious liberties, the tension between the Biden versus Trump agenda, those cases are all before the justices. But then let’s just talk about the politics surrounding it. And I think the reason you even wanted to do this today, Dahlia, is because of what emerged last week with the January six committee and Jenny Thomas and Clarence Thomas really bringing together the political intersection we have here. And I think that we have individual justices who’ve spoken out, as you said in your intro, not only did Justice Sotomayor refer to the stench that is happening right now and can the country handle what’s going to happen next? Those were things that she said, you know, a mere couple of weeks, months ago.
Speaker 2: But just a few days ago, she referred to a restless and newly constituted court that sees fit to foreclose remedies and yet more cases. That was in a post Bivens case, limiting civil lawsuits against federal agents who violate constitutional rights. So it is ongoing between them. And then also in terms of how the public is seeing them.
Speaker 2: And just to end on the note that you brought up with the chief.
Dahlia Lithwick: And Rick, I think I just want to ask you a version of this same question. Maybe looking at it from outside the building. 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, but always functioning. What do. You say about this partisan rancor and the internal divisions that we are now watching? It feels to me, as I’ve said, 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.
Speaker 3: 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.
Speaker 3: At the end of the term, I rely on people like Joan who are in the room who can tell me and the expression on this justice’s face when she read 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. And it seems pretty obvious to me. You know, one person commented on Twitter, maybe they’re worried about a security threat. I don’t think that’s it for this because it’s the same reporters who get in and the public still not getting in there.
Speaker 3: 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 John Roberts, you’ve kind of 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 versus Wade is overturned, we had the courts say today is not the day to decide whether Roe versus Wade was overturned, but what Mississippi’s doing is just fine.
Speaker 3: And then there’s another case in 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 seemed to work. Well, it’s very different than what the five more conservative justices and John Roberts seem willing to do. What our friend and colleague Leah Litman, because the yellow court now has 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 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 as Citizens United and then move on and come back.
Speaker 3: And sometimes Kennedy sided with the liberals, sometimes he sided with the conservatives, the courts, 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 Lithwick: I feel like you’re both making a version of this point that I was trying to make, which is since October, since the term started, and there was anxiety about the shadow docket and there was the SBA eight case, and there was 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 it overturned, you get overturned. And I know that John Roberts hates that story and that Stephen Breyer, bless his heart, hates that story.
Dahlia Lithwick: And they want to say this isn’t just the vending machines go tos. 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 Barrett says read the opinion, except there is no opinion because it was a shadow docket, unsigned order. So maybe I guess 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.
Dahlia Lithwick: And ladies and gentlemen, the court is now a vending machine. It’s one of the reasons I wanted to have you on. And John, 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 opinion. 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. 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?
Speaker 2: 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, you know, the solidarity that would normally happen in a positive way because they are under such scrutiny over this leak.
Speaker 2: You referred to the fact, Dahlia, that I had 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. And 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 Sam Alito’s reversal of road to Politico. 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 an investigation of the leak. And as far as we know, they have not turned up the culprit.
Speaker 2: 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 many of them who have second homes. And 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.
Speaker 2: And then a key part for the public, the public announcements that Rick referred to the very last time we heard at. Sent 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 delivered 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.
Speaker 2: It was important for us to be able to hear that the tapes of those end up going up on the IAEA website after word, you know, 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 slices 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 Lithwick: It’s interesting, John, 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 it, to just drop it and have no dissents. And it’s done. The idea was that would squelch all the anxiety and the tension around the leak. And of course, what it would have 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.
Speaker 2: You know what? I don’t even know that’s true. There were those reports. First of all, Politico got 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. I just don’t believe that the chief has completely given up. Maybe by now with only about ten days to go, the chief has given up.
Speaker 2: 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 February 10th, by the way. So think of all that likely was going on between February 10th when that supposedly was circulated and May 2nd when Politico published it. I think that there were, at minimum, plenty of memos that went around among the justices.
Dahlia Lithwick: And, John, I have to ask, are you going to tell us who your theory is of who the real leaker was?
Speaker 2: No, because it’s not because, you know, I think I have a theory, but they haven’t enlisted my support.
Dahlia Lithwick: No, no. I just knew it would be journalistic malpractice if I didn’t try.
Dahlia Lithwick: Okay, Rick, do you want to talk about this John Eastmond story? Ginni Thomas is, as so many Ginni Thomas stories are now linked to John Eastman, and that is both jaw dropping and also not surprising very much business as usual. And we’ve heard so many stories about Ginni Thomas in the last few months, efforts in connection with delaying and undermining the 2020 election. We’ve heard that she was communicating with Mark Meadows. She was emailing election officials in Arizona.
Dahlia Lithwick: And so this story about emails between herself and Eastman, I don’t know. We don’t know what’s in the emails. I’m trying to figure out how alarmed to be the possibility that she was emailing with the chief architect of the coup. I mean, it seems bad, but is this a big deal or is it just a nothing burger or is it just kind of Ginny’s going to Jenny or is it of a piece with a much larger Ginni Thomas story that we have just become numb to?
Speaker 3: Well, the first thing I want to say is that without anyone saying it, until the question of who the leaker might be of the Dobbs memo, and then we turn to a question about Ginni Thomas. So I’ll just leave that point hanging there. The evening that the Politico story dropped, I think my first tweet in response was, you know, don’t assume that this is a liberal justice or a liberal clerk dropping this, because what this does is it shifts. Our discussions from the substance of what it means to overturn Roe versus Wade and to change reproductive rights in this country. To what about palace intrigue, where the liberals could be blamed for the leak and then kind of soften the blow to the public because now we’ve telegraphed what’s going to happen in Dobbs.
Speaker 3: And so I think it’s very convenient. I think there’s a parallel thing going on here with Ginni Thomas. John Eastman this week took to Substack. I didn’t know he had a substack, but apparently he does where he said, you know, all I did with Ginni Thomas was giving a briefing to her group on what was happening with election litigation. And that might well be true, but that seems to me to be besides the point. The point is that the spouse of a Supreme Court justice was actively engaged in trying to overturn the election in multiple pathways. Whether she was talking to John Eastman or not is kind of like superfluous. She’s talking to the chief of staff, as you mentioned. She’s writing directly to legislators in Arizona. She’s organizing rallies. We’re told it was she went to the January six rally, but she was cold is what was leaked to the Washington Free Beacon. So she decided she was going to go home.
Speaker 3: The fact that Justice Thomas ruled on a case that could potentially involve disclosure of information related to his wife’s activities without any discussion of recusal. This is, I think, to go back to Joan’s initial phrasing, this is really unprecedented. The wife of a Supreme Court justice is trying to overturn the results of a presidential election. I mean, this is something if the republic survives, we’ll be reading about in history books in 100 years or our great grandchildren will be exposed. It is a situation that is untenable. And if the Supreme Court were actually bound by a code of ethics, or if Senate Democrats had the political will to bring up an impeachment proceeding, and this should not stand. And I’m all for spouses of Supreme Court justices leading their own lives and doing their own thing. But I draw the line at fomenting a coup. I think that’s a bright line that we could all agree anyone related to a Supreme Court justice should not do.
Dahlia Lithwick: Rick, I appreciate you telling us how you really feel and not sugarcoating this because.
Speaker 2: It’s.
Dahlia Lithwick: Been frustrating, to say the least, listening to people say that you cannot criticize Ginni Thomas without being sexist and wanting her to stay home and bake brownies, or that whatever was happening on January six had absolutely nothing to do with her, the Supreme Court. But it does bring me inexorably back to you, Joan, and this image I have of the chief justice weeping into his pillow because I can’t help but think.
Dahlia Lithwick: I kept hearing all day Thursday, John Roberts is definitely going to do something about Ginni Thomas this time. Some line has been crossed and John Roberts will be doing something about Clarence Thomas and Ginni Thomas. To which my answer is always, no, he’s not. He’s not going to do anything about Ginni Thomas or Clarence Thomas. He’s not going to pressure Clarence Thomas to recuse in future January six cases. I think this is part of the trap in some sense that John Roberts finds himself in, which is he has to keep pretending that everything is fine at the court, and that means everything has to keep looking like it’s fine at the court.
Dahlia Lithwick: But I’m also curious and I ask this because I was rereading last night some of the history of how much Chief Justice Earl Warren was involved in pushing Abe Fortas off the court in 1969. And the pressure was coming from John Mitchell and Richard Nixon’s Justice Department. Yes, but it was coming from the chief justice when Abe Fortas stepped down. But this is not Earl Warren and Abe Fortas. This is Chief Justice John Roberts. He has no formal power to do anything about Ginni Thomas. But I don’t think and correct me if I’m wrong, Joan, you know how he sees the world better than anyone. I don’t think he would even take the moral authority or the leadership role in the informal power to do anything about this, right?
Speaker 2: That’s right. In fact, you know, I’m glad you mentioned Earl Warren and Abe Fortas. It’s so different. First of all, let’s just take the two chief justices. You’re talking about a man who had been former governor of California who really understood how to work a room. He had very sharp political instincts and he had his support of a majority on his court. John Roberts no longer really has a majority for many things. Obviously, he can still easily control one race. You know, Rick brought up the Harvard affirmative action case. Chief Justice John Roberts can control and racial remedies. He can control and religion he can control on campaign finance. But there are lots of things that he can’t control on anymore because of how far right his colleagues have evolved with the three Trump appointments. But he also doesn’t have as much fellow feeling that sometimes even Clarence Thomas has among the. As conservatives.
Speaker 2: Obviously, many of his colleagues view John Roberts with suspicion, so he doesn’t have as much moral authority as he projects outside the building. Inside the building at times. I don’t want to over portray it, but I do know that tensions constantly linger with John Roberts and the way he views his role as chief justice. But then also just really, practically speaking, he isn’t the boss of them. He doesn’t have any even real, practical authority over players. THOMAS Even if he would invoke it. And I think, again, going back to the difference between him and Earl Warren, I don’t think John Roberts wants to invoke it, General.
Speaker 2: You know, he’s always been in this narrow little world of the law. He hasn’t been out there. This is all from 2005 on. This was all new terrain for him. He didn’t leave the law school. He didn’t lead a law firm he projects later. But he hasn’t had to be in the rough and tumble of group dynamics. He was the smartest guy in the room, but he didn’t have to tangle with a lot of them. That’s where we’re at.
Speaker 2: So he’s not in a position in a lot of different ways to say to Clarence Thomas, do something about Jenny. And I don’t think the majority wants Clarence Thomas to do something about Ginni. I think that this is something that has suddenly divided them. But I don’t know how much each of them is really expressing him or herself about what it does to all nine.
Dahlia Lithwick: And one of the reasons I always think of you, I’m sorry to say in my head you are irreversibly lashed to Dr. John Eastman is because you were, I think, one of the first and most dogged critics of the larger conservative legal movement. That was, yes, inching away from John Eastman after January six, but not really. And you were pushing I think the movement sometimes even responded to your pushes. But I don’t think the conservative legal movement to your satisfaction addressed Eastman’s efforts to set aside the 2020 election, and some of the theories that he was putting forward are still theories that are in currency around future elections.
Dahlia Lithwick: So I find myself wondering if you have some sense beyond. And let’s play a clip here of Judge Michael Luttig testifying on Thursday. And to be sure, Judge Luttig is clear and deliberate. It will sound very slow down to you. But this is how he spoke to Great Effect. Let’s listen.
Speaker 4: I believe that had Vice President Pence. Obey the orders. From his president. And the president of the United States of America. During the joint session. Of the Congress of the United States on January six. 2021.
Speaker 4: And. Declared Donald Trump. The next. President of the United States. Notwithstanding. That. Then President Trump. And. Lost the Electoral College vote, as well as the. Popular vote in the 2020 presidential election. That declaration of Donald Trump as the next president.
Speaker 4: Would have plunged America. Into what? I believe. Would have been tantamount. Do a revolution. Within.
Speaker 4: A constitutional crisis. In America. Which in my view. And I’m only one man. Would have been the first constitutional crisis. Since the founding of the Republic.
Dahlia Lithwick: So my question, Rick, is really to what extent is what Judge Luttig is talking about here? Not in any way confined to a John Eisman problem, but it’s a GOP problem, a conservative legal movement problem. And I think you’ve been really pushing hard on the idea that the movement itself still owns a lot of these ideas. Do you have any sense from the hearings that latter message got across at all?
Speaker 3: Well, you may remember some months ago that John Eastman was dropped as head of one of the practice groups of the Federalist Society. Now, there’s some question as to whether that was just an honorific or actually had any power. But what I thought was most notable about that decision to drop John Eastman was that the first lady did so silently and only through leaks. Again, theme of today’s leaks. Only through leaks did we find out that he was asked to no longer continue in this role, that, you know, he was just rotating off. That is, they went out of their way not to condemn a person who is one of the most responsible people for almost bringing down the United States government and stopping a peaceful transition of power.
Speaker 3: Or look at this civil rights group in D.C. that hired Jeffrey Clarke. And then after all of this criticism, quietly drops him, he’s just removed from the page as though he’s never existed. Some of these people are radioactive, but what we’re not seeing, there aren’t enough judge legs out there. People who are willing to say and there are some and some of them are friends of mine. But you don’t see the conservative law blogs filled with outrage over what John Eastman was trying to do. I mean, that’s just not what’s occupying their time. They’d rather ask whether Sonia Sotomayor is showing enough respect in her dissent and whether using the word stench is undermining the legitimacy of the court.
Speaker 3: Right. So this kind of a changing attention, trying to focus the shift elsewhere and not taking stock and saying this is someone who came up from our own movement and the fact that they’d be willing to do this. Maybe that says something about what goals we’ve been trying to achieve. If we could follow the money, I would like to know more about what the kind of Leonard Leo connections were to all of these efforts to try to overturn the election results. Certainly, I think he was sympathetic to that if there were a legal way to do so. But they’ve just been kind of tiptoeing along the edges, not condemning, but not distancing. And, you know, that’s kind of a position you take when you’re cautious. You don’t know what the future is going to be like. And maybe that’s a politically expedient thing to do. When we get into the Trump too administration.
Dahlia Lithwick: It’s clear that John Eastman stands as a symbol or a proxy for a whole bunch of things. But one of the things he’s a proxy for is that he is a former Clarence Thomas clerk. He is involved with a network of former Clarence Thomas clerks. We have to face the fact that Ginni Thomas was sending emails to that network. And I feel pretty strongly, despite all that, that when the January six committee finally sits down with Ginni Thomas, even with the revelations of emails between herself and Eastman, there’s just going to be a hard stop. There’s going to be a refusal to probe. They will politely have some tea, but they are not going to intrude on the court’s prerogatives. They are not going to intrude on an independent judiciary. Tell me if I’m wrong, but I just don’t think they are going to probe.
Dahlia Lithwick: And I think they’re going to believe it’s inappropriate to probe whether there is any meaningful connection between Ginni Thomas to John Eastman or to Mark Meadows or to busloads of people who showed up on January six or, as Rick said, her very physical presence at part of a rally. I think that this committee is going to be very, very careful to not touch any of that.
Speaker 2: You know, I think both you and Rick research could point in this regard about the dual roles that she might have been playing and John Eastman was playing. Ginni Thomas had her fingers in many things. She has a little bit more of a conservative gadfly thing going on. She was working on Mark Meadows. She was trying to do this with Trump. That was Trump. But she’s not she’s not a lawyer. She’s started this whole episode tracing back to 2016, being a Ted Cruz person. You know, she supported Ted Cruz, then she switches to Donald Trump. Then once he’s in, she’s all in for him, but in a different way and not certainly in a legal way. Even though she was trying to steer people like Meadows to Sidney Powell. So she has the weight of her ideas and influence, I think is can be questioned a bit rather than as somebody who really steered this ship as Eastman was trying to do.
Speaker 2: I also think that the committee doesn’t want her to be a sideshow. I mean, they have really serious business here. They have super serious business along the lines of, you know, the Watergate hearings. This is something so important that’s happening in the country and why, first of all, get entangled in intra branch issues, although there certainly are conflict of interest issues that should be explored. But is that the purpose of the committee to explore them? I don’t know. And I do think that there is a level of establishment. Washington does believe in the separation of powers for all the right reasons. And while they think that some questions are inappropriate. Probably, but I think they also have been very good so far, trying to keep their eye on the mission that they have relative to January 6th rather than getting entangled, as I say, in some of the side shows.
Dahlia Lithwick: And Rick, I cannot have you here and not ask about voting because that’s what we talk about. You and I have both now waved our hands at this idea, but let’s say it outright. Very clearly, one of the things that Judge Michael Luttig reserved the last few minutes of this hearing to say, and he made this point and his point you’ve been making for many months, which is that this is not just about 2020. This is a blueprint, as he said, for 2024. Let’s listen.
Speaker 4: Still. Donald Trump. And his. Allies and supporters. Are a clear and present danger. To American democracy. That’s not because of what happened on January six. It’s because to this very day, the former president, his allies and supporters. Pledge. That in. The presidential election of 2024. If.
Speaker 4: The former president. Or. He anointed. Successor as the Republican Party presidential candidate. Or to lose that election. That they would. Attempt to overturn that 2024 election. In the same way that they attempted to overturn the 2020 election. But succeed. In 2024 where they failed. In 2020.
Speaker 4: I don’t speak those words lightly. I would have never spoken those words ever in my life. Except that. That’s what the former president and his allies. Are telling us.
Dahlia Lithwick: And again, this is not him being willing to indict just Donald Trump or Donald Trump in a clown car with Rudy Giuliani or Donald Trump and Rudy Giuliani being driven around in a clown car by John Eastman. This is, I think, Michael Luttig saying the entire Republican Party is going to try to do this again in 2024. And I even think of Bill Barr, who I guess testified quasi heroically on Monday that Trump’s vote fraud claims were bullshit and they were nonsense. But this is the same Bill Barr who was right out there arguing vote fraud before the election, falsely, by the way.
Dahlia Lithwick: And so you and I are talking and we have a bunch of states that are still passing voting restrictions, still rooted in false claims about vote fraud that you’ve been debunking for years, as long as I know you.
Dahlia Lithwick: And I guess I find myself wondering how much the public airing of the falsity of vote fraud, the falsity of the big lie, the consequences of it, how much of that airing even begins to touch the point you have been making for a very long time about voter fraud and voter suppression and the dangers to democracy of these efforts to set aside the vote.
Speaker 3: Well, you know, I think that. In some ways, listening to the hearings are shocking because we get details like John Eastman demanding a pardon or Trump supposedly said maybe it’s good that they’re going to go after Mike Pence. We’re waiting to hear more of that. But on the other hand, the rough contours were known soon after January 6th. And yet we’re acting as though the country is not on fire when it is.
Speaker 3: The gubernatorial candidate in Pennsylvania on the Republican side, Doug Mastriano, is somebody who is basically saying that he’s willing to subvert the election results in 2024. In Nevada this past week, the candidate for secretary of state for the Republican side, Jim Marshall, is also someone who has embraced the big lie. If the election comes down to Nevada or Pennsylvania, we’re not going to have Brad Raffensperger there, the Georgia secretary of state, who stood up to Trump and wouldn’t find 11,780 votes to flip the results. We’re going to have people in power who might actually do something.
Speaker 3: And so I think and I wrote this in a piece that was in The Washington Post last Sunday. I think the most important audience for these hearings right now is ten Republican senators who want to do the right thing. Rob Portman, Ohio Republican conservative, retiring, maybe going to be replaced by J.D. Vance. It’s going to be much harder after the November elections to pass any kind of intellectual subversion legislation out of the Senate if it requires ten Republican votes, even if Democrats hold the Senate. And you think that Kevin McCarthy is going to put this up for a vote if he’s House speaker?
Speaker 3: We have months left to fix the Electoral Count Act. That said, arcane 1887 law that Johnny Smith was trying to exploit. We have just months to try to do more to protect election officials and election workers who have faced threats of violence. You know, we’ve talked about the terrible threats against Justice Kavanaugh, but there’s other people out there in political power. We’re facing threats, too. And they also deserve protection like those who run our elections.
Speaker 3: It’s a very narrow window, but I think the January 6th hearings are showing more than anything else is that there’s a mountain of evidence. They were not doing this surreptitiously. This was being done in the open. And the fact that it may lead to no consequences is only going to embolden those who would do this in 2024. And remember that when Trump was trying to steal the election in 2020, he wasn’t really using his presidential power so much as he was using his powers as a candidate to try to lean on other Republican elected and election officials. And he could do the same thing in 2024. This country is really in a bad spot.
Speaker 3: We’ve been talking about the Supreme Court, but I have to say is where does it come about what the court’s been doing? It’s not at the top of my list. What you just mentioned at the top of my list. Are we going to be able to keep the rules so that the winner of the election actually gets to be declared the winner and take office? That’s a very basic tenet of democracy, and it’s one that is under threat like we’ve not seen in this country before.
Dahlia Lithwick: I think that’s right, Rick. I think other than Judge Luttig, who made that Clarion point that you’ve just made over and over again, I did not hear much of this at the hearing. And I think it’s because you’ve now answered two questions saying this. I think it’s because part of the problem is even the bill bars and even the MARC shorts are really kind of satisfied to hate the player in this case, John Eastman, but love the game of voter suppression. And John, I asked Rick a final question about his bailiwick, and I’m going to ask the last question about yours. I do think that people like you and me who cover the Supreme Court sometimes fall prey to the mythology, the balls and strikes thinking, the thinking that justices are just oracles and robes. It’s law all the way down. And we like that story. And I think we like to tell the story of the court in its best light, the light that John Roberts would be the court in himself.
Dahlia Lithwick: My question for you is, you open by saying this term is unprecedented. I agree. I’ve never seen anything like this. And I do find myself wondering. We’ve all stipulate it is not good for the court when the public hears this story. But is it good for journalism? Is it better for democracy? Is it just better for the public to have the Band-Aid ripped off and to see the court covered like a wrestling match or a ball game? Maybe all that demystification is actually better for democracy.
Speaker 2: We need to see it for what it is. And I think there’s a connection between what the January six committee is doing right now and the Supreme Court. And that connection is actually not Jenny Thomas. It’s more like what Judge Ludwig talked about and what Rick has talked about. Look at what January six was all about in terms of kind of election law and procedures, the independent state elect. Hidden doctrine that the Supreme Court itself could impose on people and change. Who gets to say who the state’s electors should go for could reject the will of the people and just have Republican state legislatures say what’s going on.
Speaker 2: So I think what we’re seeing Dahlia to talk about, you know, at the time we’re seeing the destruction, the erosion of democratic norms. We’re seeing the very real connection with the Supreme Court and the Supreme Court’s role. And I think this has been building for many years. When I think of the kind of coverage that I provided back in the nineties for The Washington Post, when I was very happy to do a lot of featuring stories about what the court was all about, how it works, what’s going on in a way that tried to demystify it through.
Speaker 2: Just generally, I won’t even touch those kinds of stories anymore because what’s happening is just so big now. And I do think that the court is playing a much larger role in terms of is it going to keep the guardrails on or is it going to let the guardrails fall? And that’s why I think the kind of commentary that Judge Luttig gave at the end and the kind of commentary that Rick has been giving all along, warning about 2024 and the potential role of the Supreme Court is very crucial to bring to readers and all audiences.
Dahlia Lithwick: Joan Biskupic is a full time CNN analyst, author of several vitally important biographies of Supreme Court justices, including a biography of Chief Justice John Roberts called the Chief the Life and Turbulent Times of Chief Justice John Roberts, published in 2019. Richard Hasson is Chancellor’s professor of law and political science at the University of California, Irvine. He’s a nationally recognized expert in election law and campaign finance regulation and a dear friend of Slate magazine with his writing on election meltdown. Rick’s most recent book from this past spring is Cheap Speech How Disinformation Poisons Our Politics and How to Cure It. Joan and Rick. Thank you so much for being with us on the show today.
Speaker 3: Thank you so much.
Speaker 2: Thanks, Dahlia.
Dahlia Lithwick: We are now at the plate plus segment of the show and joining us to talk about actual cases coming out of the actual court as we bear witness to this larger narrative of the collapsing of something pretty profound. At 1/1 street, we have Slate’s own Mark Joseph Stern, who covers the courts and the law on democracy and voting crime for us at Slate magazine. Mark, welcome back.
Speaker 5: Howdy. Happy to be.
Dahlia Lithwick: Here. And this is the part where we actually talk about actual cases, because it turns out that the court is still churning out an immense number of cases and looks like it might actually get to the end of term by the end of June, which was in doubt, I think, when last we spoke.
Speaker 5: I think July 1st, which is a Friday, the Friday before our Independence Day long weekend. I suspect that will be the final day and quite possibly the day on which the abortion decision comes down.
Dahlia Lithwick: So I want to give you a minute to talk about something that you tweeted on Wednesday when decisions were coming down. And you and I have been grousing about probably since we’ve known each other, but certainly for years, which is when that actual abortion decision is coming down. You tweeted, and I have similarly been apt to say that it is just crazy that every single decision day we hear it’s Dobbs today. It’s Dobbs today. I know for sure it’s Dobbs today. And I wondered if you wanted to talk for a minute, just briefly about why those rumors happen. It is not just Dobbs, it is not just this year. It is always rumors for every decision day in June that today is the day and it gets people really exercised and it distracts from the actual rulings that do come down. But I wonder if you could just talk about that dynamic you were pointing out in your tweet, because I think it’s actually really important.
Speaker 5: Yeah, I agree. It happens every year, but I do think it’s worse this year. And it started in May after the leak of Dobbs you and I, others in our field started getting pummeled with questions about these rumors that Dobbs was going to come down tomorrow. The next day. This is going to be Dobbs day, and it’s reached a fever pitch where before every single opinion day, a ton of people reach out to me and say, Have you heard this rumor that Dobbs is coming down today?
Speaker 5: My understanding is that many people are getting this rumor from advocacy organizations that promote reproductive rights, that are terrified of Dobbs and are working themselves into a frenzy over the imminent release of Dobbs and for a variety of reasons, including possibly just a desire to ensure that as many people as possible are paying attention.
Speaker 5: When Dobbs does come down, these groups are telling everybody in their networks that there is a really good chance that it’s going to be Dobbs day. And I think that creates a very unhealthy dynamic where everybody is on a war footing for each opinion day in June, and each day that Dobbs doesn’t come down creates a boy who cried wolf problem wherein all of us who heard and spread those rumors are discredited a little bit more each time, and people start to wonder, when is Dobbs going to come down? Is it even going to come down at all?
Speaker 5: And this is not a perfect analogy, but I do want to compare it to what’s happened over the past decades, where progressives have been fretting that the Supreme Court’s going to overrule Roe versus Wade. And then it hasn’t happened. And conservatives have often seized upon that to say that it’s not going to happen to try to placate liberals and trick them into a kind of tranquil confidence that Roe is safe. And you even see this among some kind of contrarian lefties and centrists who refuse to believe for a very long time that Roe would ever really be overturned.
Speaker 5: And each time the court came close, but then didn’t overturn it, they said, look, this is evidence that Roe is safe. And I just see a little bit of a parallel between that dynamic, which I think was similarly unhealthy and what’s happening now. People are starting to not even believe that it’s going to happen. People are just completely paralyzed with fear and increasing disbelief. And again, I don’t think that benefits anybody here. And I really wish that whoever is spreading these rumors, especially the advocacy groups, if they are indeed at the source of it, I wish that they would stop because they are subverting their own interests at best here.
Dahlia Lithwick: And one tiny parenthetical to this observation, and I associate myself completely with what you just said. In addition to the fact that I think it distracts from the cases that actually then do come down. Right. You hit refresh. Refresh. Yes, not Dobbs. I guess nothing happened today. Actually, as we’re about to get to a lot of things that are not Dobbs are happening. But I want to make one point that you have made and that I’ve heard a lot of abortion providers in abortion funds making, which is every day that Dobbs does not come down, is a day when thousands of American women can get an abortion, that there is an interest in having this go as long as it can. If you are thinking about. The fact that Dobbs doesn’t come down until the last descent is written. And there are reasons that the last dissent might come out on the last day of the term and not the third week in May.
Speaker 5: Absolutely. And I think that the liberal justices know this and are probably strategizing around it and recognize that having lost the entire war, the least they can do is kind of hold off the defeats, the collapse, the end of it all for as long as they can. Because, you know, like you said, every single day, the Dobbs doesn’t come down is a day that many, many women can access reproductive health care that will soon be stripped away from them.
Speaker 5: And I think that the liberals, if they didn’t know this, already learned that lesson during the fight over SB eight, which is the Texas abortion ban, because when the court was considering whether to block SB eight in August and September, there were all of these reports of antiabortion advocates lining up outside clinics, shining flashlights into the windows, taunting staff and patients that they were about to be shot down. So horrific that Justice Sotomayor put one of these reports in her dissent when the court declined to halt SB eight and allowed Texas to nullify Roe. And I think that’s top of mind for them.
Speaker 5: Now they’re aware that we’re about to see dozens of clinics shutter in probably about two dozen states. And all they can do at this stage is drag out their dissents. And that gives them and us a really good reason to wait until probably July 1st, as late as possible within this term, to get the opinion down so that the final beneficiaries of Roe can get their day of health care and move on with their lives before half of the country sees this right ripped away from them.
Dahlia Lithwick: Sometimes you see things that I experience as a punch in the mouth, and that was one of them. Mark it is an amazing image that you just evoked that I actually hadn’t connected up. I want to connect up what you just said about nullification to an actual decision that came down this week that actually has a tremendous impact, an import, and that is Andrus. And it continues to themes that you wrote about eloquently at the beginning of the week, but that you’ve been writing about for a long time, which is both nullification and the death penalty. And I wonder if you could just lay out for those of us who are just hitting refresh, refresh, refresh to see if it’s Dubs Day, what the court did and.
Speaker 5: Andrus Yeah, this is another attack on the Sixth Amendment Right to counsel that comes on the heels of the Court’s horrible decision in action versus Ramirez, which Mary Harrison Leah Litman did an amazing episode of What Next about? I encourage everyone to listen, but in this case the facts are even weirder because the court already ruled in favor of the guy seeking relief.
Speaker 5: His name is Mr. Andrus. He’s on death row in Texas for a murder that he has acknowledged that he committed. But he committed it after going through a horrific childhood of abuse and degradation and deprivation and all kinds of awful psychiatric treatments for his various disorders. He was placed in juvenile detention and then thrown into solitary confinement almost 80 times. He lived one of the most appalling childhoods you can imagine.
Speaker 5: He had a right to present all of that evidence to the Texas jury to show that his crime was mitigated by his horrible childhood, that his culpability was mitigated, and that he did not present an incorrigible path in life, that he might be rehabilitated in the future. But he had a terrible lawyer, an absolutely atrocious lawyer who didn’t give any of that evidence to the jury. Even though if a single juror had felt that evidence mitigated his crime, then he would have become ineligible for the death penalty.
Speaker 5: And in 2020, the US Supreme Court said, Yeah, that performance violated the Sixth Amendment right to counsel. This was plainly, as a matter of law, ineffective counsel that violates the Bill of Rights. And we’re sending the case back down to the Texas courts to take another stab at this with the understanding that this man received unconstitutional trial. And the Texas court comes back and by a 5 to 4 vote, these are elected Republicans on this court.
Speaker 5: The majority says we disagree with the US Supreme Court. We think that the US Supreme Court got it wrong and that we were right in the first place and that this guy, Sixth Amendment rights were not actually violated. So we are going to deny his request for a new trial or a new sentence and leave him condemned to die to be executed by the state of Texas. Mr. Andrus, of course, appeals that decision back to the Supreme Court. And on Monday, the Supreme Court turns away the case by a 6 to 3 vote with all. Leave the liberals dissenting in a really extraordinary and long opinion by Justice Sotomayor. And in doing so, the majority basically allowed a lower court, a Texas state court, to overturn its own decision from just two years ago, holding that this man received unconstitutional assistance of counsel.
Speaker 5: And I think that this story, it’s obviously really upsetting in its own right. But I think that it helps to illustrate this broader trend that we’re seeing where lower courts defy SCOTUS precedent. Lower courts say we don’t want to follow this, or they find some ridiculous excuse or pretext to work around precedent and dare the Supreme Court to step in and stop them and reverse them. And increasingly, the Supreme Court isn’t doing it. And instead the Supreme Court is winking at these lower courts and saying basically, good job, buddy, and allowing very conservative judges to overrule SCOTUS from below, which is of course not how this works. It is a direct violation of the constitutional mandates of the Supreme Court’s decision of our structure of our judiciary. But this is the new trend allowing conservative judges to overturn SCOTUS.
Speaker 5: And not every case is as flashy or alarming as the one involving Mr. Andrews. But it is a thing and a problem that is emerging that is difficult to explain to people who don’t pay close attention, that lets the Supreme Court effectively overrule a ton of precedent without having to take the political heat or public backlash of coming out and admitting what it’s doing.
Dahlia Lithwick: And I just want to.
Speaker 3: Say.
Dahlia Lithwick: Because we talk about this so often, Mark, you and I, that in the vast taxonomy of how the Supreme Court can overturn a case without ever writing the sentence, that case was overturned. One of the absolute sneakiest is to just let it be nullified from below and leave that to stand. This is even more lacking in courage in some sense than some of the chipping away strategies we’ve talked about on prior shows.
Speaker 5: Yes. And I read all of these studies by law professors, usually conservative law professors that purport to prove that the Roberts court is overturning precedent at such a small, minimal rate that actually the Roberts court is a bastion of stability and that it has overturned so few cases in comparison to past courts that it should be praised for its adherence to stare decisis. And that is absolute nonsense. And I think the authors know that they’re furthering a very specific agenda here. And I think that the justices know it, and they are pleased to be in a position where usually, as this shakes out, Trump has stacked the lower courts with so many hard right judges that you’ve got a bunch of radicals and bomb throwers who are going to do the justices job for them and make their lives even easier.
Dahlia Lithwick: Let’s talk about one other theme that seems to be emerging in the last couple of weeks, Mark, which is the story we tell about this is the standard six three core liberals and conservatives is true as far as it goes. But we are really seeing in case after case, particularly this week, a little bit of a growing. Fisher between how Justice Neil Gorsuch sees the world and how Justice Amy Coney Barrett sees the world. And I wonder if you can either just give us a couple of emblematic cases or give us a couple of emblematic cases and a theory of what it tells us. The difference between, you know, how they seem to not align in any meaningful way in a whole bunch of areas. What it tells us about Amy Coney Barrett, her judicial worldview, and that of Justice Gorsuch.
Speaker 5: I’ll start with the caveat that in the big loaded blockbuster cases, these two justices do tend to align when it comes to turbocharging religious freedom rights for Christians, when it comes to overturning ROE and reproductive freedom, when it comes to the Second Amendment, they do seem to be in total agreement, even if they may occasionally disagree about the pace of the revolution that they are ushering in.
Speaker 5: But on the substance, there have been four cases so far this term where Amy Coney Barrett has written the majority opinion and Justice Neil Gorsuch wrote the dissenting opinion. And there are actually only two other justices who have dueled as frequently as those two this term, and they are Clarence Thomas and Sonia Sotomayor. That is predictable. You would expect those two to be dueling frequently. And you would also expect that Thomas wins out more often than he loses, which is, of course, the case. But I think it’s kind of surprising to see that just below them are buried in Gorsuch, really going at it pretty harshly and sharply in some of these cases.
Speaker 5: And I can give you a few examples, they tend to be technical and complicated, so I don’t want to delve too deeply into them. But two of them involve rights of veterans who believe that they were wronged, either underpaid or denied benefits that they deserved. One of them involved a prosecution, a tribal prosecution, followed by a federal prosecution of an individual for the same offense, the exact same crime. And the final one involved the rights of immigrants who are facing deportation and their ability to fight back in federal court and get judicial review over their treatment. And particularly review when an immigration judge just completely botched the facts and misrepresented the evidence in their case.
Speaker 5: And in all of these decisions, Barrett has been on the side of the government, but on the side of power. She sides against the veterans in favor of the government. She sides against the defendant in favor of the prosecutors, against the immigrant, in favor of the massive deportation bureaucracy. And, of course, Gorsuch is on the other side. And what I think this reflects is Gorsuch is fundamental skepticism of state power in a way that is not always consistent, but more principled than someone like Barrett, who seems to have a pretty clear bias toward government power, except for a certain class of rights that she favors, like specific kind of religious liberty.
Speaker 5: Gorsuch, to his credit, has more consistency here. He clearly distrusts the government in all its manifestations, and he is willing to follow that belief to liberal outcomes, to decisions where he is siding with Sotomayor and Kagan and sometimes Breyer, but sometimes Breyer will join the conservatives in these decisions, and Gorsuch is to his left.
Speaker 5: And that continues this trend that we’ve seen where it feels to me like one out of every ten cases, Gorsuch is just really spot on. And then the other nine, he’s horribly misguided. And I never want to read another word he writes. But then in that one out of ten, it’s like, you are so correct about this. And it’s incredible to see how well he gets it and he gets the persecution or the imbalance of power or whatever that’s going on here. I would love it if he could bring those views into the other nine out of ten cases where he’s ruling what I consider to be the wrong way. But it is, I guess, encouraging or at least interesting to see that there’s this fissure among two of the newest justices and that Gorsuch is going to stick to his guns in cases where the other conservatives say, screw this, we aren’t going to expend an iota of political capital to help out the little guy.
Dahlia Lithwick: Another place we see that is the Native American cases that are coming down where Gorsuch continues to signal and it gets shorthanded as it’s good to have a justice from the West. But he does continue to signal solicitude that, again, kind of ropes him off from the conservatives. And I guess here’s where it’s also just worth noting that one of the cases that came down this week was Becerra, which could have had huge implications for the Chevron doctrine and agency powers. And the court just whiffed on it.
Speaker 5: Yeah, kind of surprising to me. This was teed up as a case where the Conservatives could take a huge bite out of Chevron deference, really overturn all judicial deference. To administrative agencies if they wanted. But instead, the court unanimously avoided using the words of Chevron deference in the opinion and Brett Kavanaugh’s opinion for the court, which I agree with, by the way, and I think is quite, quite right. He just pretends like Chevron doesn’t exist. And so we’re in this weird stage where there are these ghost precedents that sort of haunt the court and pop out in the filings and in the arguments.
Speaker 5: But then when the opinion actually comes down, they’re nowhere to be seen. And I think that’s a better alternative than the court explicitly overruling Chevron. But I don’t think it’s a great way to run a judiciary. And I think it, again, reflects the kind of tactical and political moves that the justices are making when it comes to how they are going to spend their political capital pursuing various aspects of the conservative revolution that they feel they were put on the court to affect.
Dahlia Lithwick: I cannot say goodbye to you, Mark, without giving you a chance to weigh in on the atmospherics. There’s fencing around the court. There are protests at the court. There are claims by some critics that other critics of the court, like you and me, are triggering, you know, threats against the justices. Ad campaigns now being launched to defend the conservative justices from its critics. All of this is over and above revelations this week that the wife of a sitting justice was maybe chatting with Trump’s principal coup lawyer.
Dahlia Lithwick: I’m going to hazard that as weird as the last couple of weeks in June always are for people like you and me. This is the freaking weirdest last two weeks in June in at least I that I know of in Supreme Court history. And I’m very mindful that we started this term the first Monday of October. You and I were talking about a similar vibe that all of the coverage was about the shadow docket and the polling numbers. And why are the justices giving partisan speeches at partisan places? Is it even possible?
Dahlia Lithwick: To the extent that we’re going to spend the next two weeks hitting refresh, waiting for Dobbs and Bruin and the religious liberty cases, to talk about the Supreme Court as a sort of pristine place of doctrine. Separately from the political story about what is going on with the court and Ginni Thomas and January six, are they just completely fungible now and never, ever will they be pulled apart again?
Speaker 5: It’s weird because if you read the decisions that came down on Wednesday, they all sound like they emanate from a mount Olympus, where philosopher kings and queens are debating pristine doctrine. And in these smaller cases, you still see the justices most of the time, some of the time doing their jobs, especially when there’s no political valence. And some of the disagreements between conservatives and liberals are between two conservatives as we discuss. They seem genuine and based on nothing but contrary and honest views of the law. But that all changes once the big cases start coming down.
Speaker 5: Right. And Justice Sotomayor gave us a preview of what’s to come last week when she talked about the restless and newly constituted court overruling recent precedents. And I suspect that Sotomayor is finished trying to preserve the court’s institutional legitimacy, at least in her dissents, and that she probably has been for a little while now. And I think that the conservative justices are not going to let PR concerns get in the way of their campaign to remake the law and their own image. And so we have a perfect combination of indifference on the right and anger on the left that is leaving maybe only Chief Justice John Roberts as the one guy who’s willing to actually pull punches to defend the institution.
Speaker 5: And all of that trickles down. And it certainly doesn’t help that Ginni Thomas is in the news every other day for facilitating Trump’s attempted coup in different ways. It certainly doesn’t help that the January six committee is happening right now and that we are learning more and more about how Ginni Thomas and top conservative lawyers were involved in this attempted coup.
Speaker 5: And, you know, it certainly doesn’t help that a majority of the country apparently strongly opposes what the court is about to do. And I suspect a large number of Americans will view it as a fundamentally political act. But it’s not my job to protect the court’s reputation. It’s their job. And they’re doing terrible work of it. And frankly, that doesn’t bother me that much anymore. I know that it used to, and you and I used to tear out our hair and think it really is important to have a functioning and respected court. Maybe it’s just late June. Feeble. For me.
Speaker 5: But more and more, I’m thinking, let Americans see what this institution really is and what it’s doing. Let Americans see how corrupted it has become by politics and let them decide if this is the system we really want to live under, where five or six unelected judges with no constituents and no elections get to determine the fate of every American and the meaning of every nook and cranny of our law. I don’t think that re-evaluating that is a bad thing, and if the courts collapse in the public eye is what’s going to precipitate it. I think that’s okay with me.
Dahlia Lithwick: Okay. I got nothing. I got nothing. No, no. What do you.
Speaker 5: Think?
Dahlia Lithwick: Listen, I have bald patches for how much hair? I have torn out over this, and I’m still completely terrified that a country without a court is a country without the rule of law. And I am aware that I keep saying when the court decides the 2024 election, it will be really bad if the country decides to battle it out in the streets instead. But I also know exactly how this court is going to decide the 2024 election. So I don’t know. I mean, I’m just really feeling like, you know, if I have to choose, you know, death by stoning or death by fire, it feels super, super depressing to me. But I don’t disagree on this one point, which is I think that the Supreme Court press corps and I think Steve Vladeck and I wrote about this in the fall sometimes does way, way, way too much to take it upon itself to preserve the legitimacy of the court at all costs.
Speaker 5: Yes.
Dahlia Lithwick: And I absolutely agree with you. And on this, I think we’re in lockstep. That is not our job. It is our job to report on what the court is doing. It is not our job to do the work that Justice Thomas could do by just not saying the things he says at Federalist Society events. So on that I am with you. I just continue to worry about what comes next when you have a court and a whole system of federal courts that the public just says, Yeah, no.
Speaker 5: As ever, I appreciate your fight against nihilism and quest for hope against all odds. But it is not one that I feel able to assist with.
Dahlia Lithwick: Stoning. Stoning. All right. Mark Joseph Stern covers the court. The law, democracy. Read him on something we just did not get to today, which.
Speaker 2: Is.
Dahlia Lithwick: The Wisconsin audit. Mark, as always, it is dispiriting and wonderful in equal measure to be with you and we’ll just see what’s going to come next week. I’m going to go with refresh, refresh, refresh. And it’s not going to be good.
Speaker 5: I will be clicking refresh until the day I die, and that is the law we have chosen in life.
Dahlia Lithwick: That is the.
Speaker 5: Past and we are too far down to turn around now.
Dahlia Lithwick: Thank you, Mark.
Dahlia Lithwick: And that is a wrap for this week’s episode of Amicus. Thank you so much for listening in. Thank you so much for your letters and your comments and your questions. You can always keep in touch at Amicus at Slate.com. We love your letters and you can find us at Facebook.com Slash Amicus Podcasts. Today’s show was produced by Sara Burningham. Alicia montgomery is vice president of Audio and Ben Richmond is senior director of operations for podcasts at Slate. And we will be back next week with another episode of Amicus. And until then, do take good care.