The American Contest

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S1: This ad free podcast is part of your Slate plus membership.

S2: It’s really kind of a targeted political project rather than a coherent judicial ideology. You could make a very interesting judicial ideology based on original concepts of democracy and the relationship between states and the federal government. They’re not doing it.

S3: Hi, and welcome to Amicus Services, Slate’s biweekly podcast that now seems to be its weekly podcast about the courts and the law and the rule of law and the Supreme Court. I’m Dahlia Lithwick. I cover those things for Slate. This past week has hurled us toward two big states in time. One, the ascension of Amy Connie Barrett to be seated at the U.S. Supreme Court replacing Ruth Bader Ginsburg. Judge Barrett was voted out of the Judiciary Committee this week with no Democrats in attendance and the November election that will be upon us November 3rd. Just over a week later on in the show, we are going to talk to Slate’s own Mark Joseph Stern in a Slate plus segment that covers the courts and election news of the week. And trust me, there is an immense amount of it. This week I wanted to try to close the circle on something that I’ve been trying to understand.

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S1: I’ve been trying to explain, but in really bad and compressed ways for some time now, I notice that I keep using this term minority rule, but I use it to describe this whole panoply of systems and ideas and thoughts. It’s almost a tick for me and I use it to describe the mass closing of polling places. I use it to describe what happens when the Senate rams through a Supreme Court nominee just days before an election when they wouldn’t do that in 2016, 11 months before an election. I also keep using minority rule to describe what happens when the Supreme Court takes positions on guns or abortions or the Affordable Care Act that are totally misaligned with majority interests and also very aligned with dark money interests. I use it to describe stuff. I just don’t like minority rule, and that’s sloppy. So I wanted to bring in somebody who could help pass. What I mean when I say that the conservatives on the U.S. Supreme Court at this moment are not just ideological, they’re also partisan. They’re greenlighting gerrymandering, their greenlighting vote, purging, they’re helping suppress majority rule and help me understand that in the context of history. So one last stipulation. I fully understand that minority rule, minority tyranny encompasses all those things I just said. But I’m just going to cop to the fact that I am all for minority rule or at least a counter majoritarian check on government. Think of Brown v. Board. Think of Oberg fail. So I’m imprecise. And so I have conjured up somebody who’s probably well known to an awful lot of you. She’s been an absolute beacon, not just of a history, but of precision to me this past year. Heather Cox Richardson is a professor of history at Boston College, the author of six books about American politics. She started running, writing her daily letters to an American in 2019. And she now has many, many, many, many subscribers. I think she’s the first guest on this show. When I said to my husband, oh, my God, I’m going to go interview Heather Cox Richardson, he said, oh, my God, tell her thank you. So if you’re anything like me and you read her daily roundups at four or five or six o’clock every morning, and if you aren’t reading her, you should be. But I think her two superpowers are in making connections between events that seem random and then explaining it through this lens of crystal, an understanding of American history. So, Heather, I very rarely get this weird and fangirl girly, but thank you so, so, so much for being with us. I know you are the most tired person in America, so welcome to Amicus.

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S2: Oh, I’m so thrilled to be here. And I will fan girl right back at you. I’ve been reading you forever.

S1: Well, thank you. And I wonder if we could just start. I know we were in a weird interstitial space between me that thinks about the constitutional law, you that thinks about history. But I want to start with the history of the Constitution, if we could, because I do think it’s useful when we’re thinking about constitutional systems to understand the role of majority rule, minority rule, minority checks on majority rule and what the framers were thinking about when they baked in. Certain. Minority protections into the Constitution, but also I think that we forget sometimes or I often forget in my magical thinking about the Constitution, the Bill of Rights, that the founding documents were always a compromise between different versions of which white, privileged patriarchal men were going to dominate the rest of us, right?

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S2: Yes. So I think one of the ways it helps for me to think about all this material is that, you know, what we talk about and we talk about constitutional law or the way laws work is actually really interesting. It’s fascinating to watch how people make arguments and who gets protected and all of those things. But that’s a really kind of presentist way to think about things that you can’t really read that back into the constitutional era. And you certainly can’t look at the Constitution as something that was baked in the seventeen hundreds and then walked away from because that has always changed as well. So for me, it’s much easier to think about all of this where the court is today, where the court was in the nineteen fifties and the nineteen sixties in the nineteen seventies, where the court was in the nineteen twenties, where the court was in the nineties, where the court was in the eighteen fifties. It’s easier to think of all those things as a contest in America over what it means to be a nation in which theoretically everybody and I’m going to use that advisedly right now. But everybody has a say in their government because of course, that’s the theory, right? All men are created equal. And that’s a really radical thing to say in seventeen seventy six. I mean, it’s a whole new way of looking at the world. But what does it mean when you actually try to make a government based on that? And that’s one of the experiments that we’ve been doing ever since, is how do you make an actual government that works, that guarantees the voice of the people who are governed in their government itself. And the struggle over that has, over the course of the 19th century, really broken into a struggle between democracy in America, meaning the role of a small elite of white propertied men almost exclusively over everybody else. And on the other hand, the ideas, as Abraham Lincoln articulated it so powerfully in what people like Eric Foner called the second founding of democracy, meaning that that ordinary people, regardless of their race or it could be expanded, expanded to their gender. Of course, Lincoln didn’t do that, but people at his time did that, that ordinary people are the ones who should have a say in their government. And that struggle between the idea of democracy, meaning an elite rule versus democracy, meaning everybody actually has a say in their government, has shaped virtually all of the fights that we have had over the Constitution and over the Supreme Court since the eighteen sixties.

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S1: So when Mike Lee says for the first time, possibly uncovered medication, we’re not really a democracy. We were never intended to be a democracy, he’s flicking at some version of that theme that you just described. Right.

S2: This is just drives political historians insane. But we’re not a democracy. We’re a republic. You’ve heard that a thousand times. That actually comes from the nineteen fifties and the John Birch Society that is trying to establish that it does not want the idea of expanded voter rights and they don’t want the idea of expanded voter rights, in part because that means African-Americans are going to be voting. So it’s partly racial, but it’s also partly because we have this weird thing in America after the eighteen sixties that if you let African-Americans vote, what you are essentially doing is embracing socialism or communism, because what happened during the Civil War was that the Republican Party both invented America’s first national taxes, including an income tax, and they expanded suffrage. So going into reconstruction, there was this construction coming out of former confederates that they didn’t actually mind black people voting, which was ridiculous. Of course they did. But what they really were trying to do was prevent poor people from voting because poor people were going to redistribute wealth. And that would itself be a form of what they called at the time, socialism or after eighteen seventy one, when in Paris, the communards take over the city of Paris and create their own new kind of government there, that it is some form of communism. And that concept in America that socialism or communism is linked to poor people voting, especially poor people of color or women who are asking the federal government to level the playing field between them and white men, that that is somehow socialism or communism has really skewed our political system and our legal system, including what happens in the courts ever since.

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S1: And we’ve now just touched on race, we’ve touched on gender, we’ve touched on class. But I wonder if you can weave religion in for a minute, because I think one of the most astonishing things that is happening right now is that we are in the midst of a profound fracture in this country around religion and who gets to decide and majority religion and minority religion. And it’s, in my view, all held up in stark relief in this Amy Barrett hearing where nobody can even talk about religion. But clearly, there is also tension. I think in there’s a tension between the two provisions, the religious provisions in the First Amendment itself. But I think there’s clearly now a tension in minority majority rule in this country around this question of religion. And I wonder how that tracks back.

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S2: OK, so religion gets involved in American politics and the American law really in the in the nineteen sixties for our purposes. But let’s go back for a second and talk about how we got to the moment we’re in right now in terms of the Supreme Court and in terms of American politics. And that again goes back to the idea of democracy, meaning ordinary people versus American democracy, meaning a system in which a few elite men run things for everybody else. And what happens, of course, is after the great crash of the nineteen twenties, Franklin Delano Roosevelt and the Democrats take a look at the American government and they say, hey, we need a new deal for the American people. And they begin to use the government as an active force to level the playing field between ordinary Americans and the elites who’ve been running things. So they begin to regulate business. They provide a basic social safety net. They begin to support and advance infrastructure projects like the Tennessee Valley Authority, and they end up creating a new activist government that tends to level the playing field among economic classes in America. But it really doesn’t touch on racial or gender issues. They nod to it, but they don’t really do a lot with it. Coming out of that, there is this sense that America alone and this is a sense I want to emphasize, America alone is a democracy standing against authoritarian governments, fascism on the one hand for which we just want World War Two, but then the rise of communism as well. So there’s a real problem for Americans who come out of that war embracing democracy and talking about democracy. And people tend to forget that FDR talked a lot about how democracy was a superior system to fascism. He talks about it again and again in his fireside chats over the difference between Italy and America. And then coming out of that, there’s a problem for the American government and, of course, Americans in general, that communist governments take a look at American racial disparities and they say, what’s all this about democracy? They’re just they’re just lying to you that there’s nothing about equality in America. And under Dwight Eisenhower, a Republican president who takes office in nineteen fifty three, selected fifty two thousand fifty three, he appoints a bunch of Republican. To the Supreme Court and those Republicans are going to stand against the racist Southern Democrats who have baked into the New Deal and into American law racial categories. So, of course, he appoints Chief Justice Earl Warren, who had been the Republican governor of California. And Warren begins to use the 14th Amendment to go ahead and to level the racial and soon to be the gendered playing field in America. And that moment when they are using the government to try to erase segregation through the Brown versus Board of Education decision 50 seven, when they are saying that married couples have the right to buy contraception, when they are talking about the right of people to counsel, when they are talking about the right of people to marry across race lines, what they’re doing is they’re using the courts to go ahead and override the segregation and the different systems in the states that have developed such lines between different groups of people. So, of course, there’s a backlash to that. And that backlash is partly religious. To go back to your question, it is partly social for sure. There’s traditional fundamentalists at the time and social traditionalist, but it’s also a huge backlash on the part of big business that doesn’t want to see federal regulation of business. And so from then, of course, we get this political movement known as the movement conservatives who are gradually going to come to take over the Republican Party and eventually our political system, as they have now. But one of the branches in which they do that is through the courts. And part of their attempt to use the courts is articulated really well in nineteen seventy one by Lewis Powell, who is a lawyer for the tobacco industry, and he writes a secret memo to the head of the US Chamber of Commerce in which he says, We have to push back on the government and on the courts that are expanding American rights because they are hemming in what he calls the American free enterprise system. And one of the ways he wants to do that is through the courts. And, of course, we’re going to get the rise then of the concept of originalism, of the related concept of textualism, of the attempt to hem in the use of the courts for protection of the rights of minorities and also to him in voter rights and to him in regulation. But at the same time, that’s a political project. And the problem with the political project is that these things that were listed here, the regulation of business, the expansion of rights, the protection of social welfare, the promotion of infrastructure is actually really popular then and now. So if you are somebody who wants to get rid of business regulation, get rid of the protection of minorities and their inclusion in a larger society, which is going to cost tax dollars, how are you going to do that? Well, you’ve got to either get a lot of voters on your team and they couldn’t do that. They gave up on that project because Americans like the system or you can induce new people to join your coalition. And by the time of the Reagan administration in the nineteen eighties, that’s precisely what Reagan and his supporters do, is they make a huge plea to get evangelicals and traditional religious figures into this project. And it’s a really dramatic change because as late as 1970, the major church organizations in the country, including the Southern Baptists, actually supported reproductive rights. So you’ve got here you’re talking about the problem in the courts right now of religion, but that is really very much a reflection of the political project. They are designed to roll back the changes of the New Deal and, of course, the Warren Court and then the Burger Court. Warren Burger was appointed by Nixon in the nineteen seventies, and they’re the ones who passed Roe v. Wade. The objection to Roe v. Wade actually doesn’t come after Roe. It comes before Roe. That’s a political project immediately after the midterm elections of nineteen seventy to try and move Democratic Catholics into Nixon’s column before nineteen seventy two.

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S1: We had Elise Hoegh from there on the show, on the last show, explaining really clearly that the move from having religious objectors to Brown, which is really complicated, segway into religious objectors to abortion. Was the effort exactly what you’re describing, Heather, of lashing yourself to something that you can people will get behind? And when you can’t say I just have as a religious principle that is anathema to me to desegregate my school, it’s a lot easier to say. It is anathema to me to kill babies. And that’s kind of the move that happens there. And that’s when it takes off to things that you’re saying that are so important. I just want to underline one is that I think Americans, particularly progressive Americans, kind of hit the snooze button after Brown and Roe sort of said, hey, the court is essentially a progressive enterprise and is advancing this vision of democracy that you lay out, you know, equality and making sure everyone prospers and a little thumb on the scale to make sure that it’s fair for everyone. That actually has not been in a descriptive language that you can use about the Supreme Court. Certainly in the 20 years I’ve been covering the court. I mean, that’s not Bush v. Gore. That’s not John Roberts. That’s certainly not Shelby County or any of the chip chip chip erosion that we’ve seen. And this is the reason I wanted to talk to you on voting itself, that this is a court that at least since Bush v. Gore, but certainly since Shelby County striking down part of the Voting Rights Act, certainly when it blessed voter roll purges in Ohio. This is a court that isn’t just about, quote unquote, conservative legal ends, as you describe it. Right. The Powell memo and evangelical Christians and privileging big business and all that. This is now about all out voter suppression in a way that I think most progressives, if I said that sentence is Sheldon Whitehouse was trying to do a version of this last week at the hearings with his whiteboard that everybody, just including people that are very smart, would just like that. Now, what’s he talking about? But that’s the story, is that it has talked from a conservative legal project to now we have to make sure that not everybody gets to the polls.

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S2: Well, yes. And and this is, I think, where I was trying to start is that the court itself is fascinating and legal decisions are fascinating. But in America, legal decisions and the court have always been a reflection of what our democratic project is. So one of the things you just talked about there about religious objections to Brown v. Board and religious objections to Roe v. Wade, part of the religious objections to Brown v. Board. In fact, a significant part of that is an objection to communism, which, again, I just sounded like that came out of the blue, did not. But but if you think about the way that the concept of communism was constructed during the Cold War, communists were godless. They were atheists. I mean, you saw this as late as Reagan talking about the evil empire, which he did say in a speech to evangelicals in Florida, you know, this idea that somehow if you permit people at the bottom of society and in America, those were defined because of our weird history of reconstruction as black voters, although cautioned that that should include brown voters. It’s going to be immediately after World War Two. It’s actually going to be Dr. Hector Garcia and the American GI Movement, a group of Hispanic voters who are going to really push the boundaries of voting first. And we tend to read that of our history because we tend to focus on African-Americans. But this idea that somehow letting people of color and later on women who want to be something other than wives and mothers is going to create a government that is going to permit poor people essentially to vote for policies that are going to cost tax dollars. And during reconstruction, by definition, people who had money to pay taxes were people with property and were white, because in that period, if you were an African-American, you couldn’t have property before the end of human enslavement. So we have this weird thing after the eighteen sixties where if the democracy permits widespread voting, it has this link to this concept of communism. And that link to the concept of communism is also a link after World War Two to the idea of godless communism. And so you have this, again, this really weird sort of political construction that if you let people vote in America in certain political moments, we’re in one now. It’s not always this way. And if you’re interested, I can talk about the times. It’s not. But we are in a political moment right now where there is a significant portion of the country and a lot of unfortunate. The Supreme Court that thinks if you let people vote, especially people of color and women vote, they are going to destroy America by voting in socialism or communism and that they are also godless. So I guess what I’m trying to point to here is the idea that the current Supreme Court, with its emphasis on an originalism, that itself comes after the Powell memo and that is really embraced by the construction of the Federalist Society in nineteen eighty two, that that itself is a political project. I mean, it’s all couched up in this. Oh, we’ve got this great theory. But if you actually read the theory coming from Justice Antonin Scalia and people like that, it’s really kind of started up political project rather than a coherent judicial ideology. You could make a very interesting judicial ideology based on original concepts of democracy and the relationship between states and the federal government. They’re not doing it. They’re part of a political project.

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S1: And before we leave the structural question of minority rule, I think I want to ask I have been saying for probably three years now that there is clearly a design flaw when you have gerrymandered legislative districts that are not apportioned one person, one vote, then you have a wildly malapportioned Senate in which if you’re in California or Wyoming, you have the same amount of representation and then you have a president who did not win the majority of the vote. So it seems as though the entire structure is existing to preserve minority rule. And I know, as you’ve said, that’s not always been the case. And we can talk about that. But then larded up over that. Now you have a Supreme Court that is five justices appointed by a minority majority president. It just feels as though unless I’m missing something, this is a profound design flaw where there is no way that you’re going to have anything close to majority rule because it feels as though, at least in this moment, every branch of government has been designed to suppress majority will. I know I’m wrong somewhere in there, but that’s certainly the moment we seem to be in right now.

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S2: The only place Jurong is in the word design, the system itself is not necessarily baked to do that. And I’m hitting here again on the idea of a political project. We are absolutely in a moment when we have gotten to a place where we have minority rule and it is baked into the system that we currently have. But the system itself doesn’t have to do that. And there are times when it has not. But one of the things that that has happened at least three times in American history is we go from a period where there is a focus on equality and on rights. And when that happens, when people, ordinary people start to have political power, they do, in fact, guarantee that they retain more of the value that they produce. And they want they want what they have done. They don’t want what anybody else has done, but they actually want what they have produced. And when that happens, the people who have tended to be able to accumulate wealth into their own hands start to worry that they are going to lose that power. And they’re very really quite articulate about this. In the 19th century, we’ve got people like James Henry Hamilton in 1858 giving a speech in front of the Senate in which he says, listen, the way this country should work is that the vast majority of people are kind of dumb and they’re kind of dull and they’re hard workers and they make a lot of money. I’m not making this up. By the way. He actually calls them Mud Sill’s, which is the part of the wood that gets hammered into the dirt to support a plantation home, which is where he lived. It was a South Carolina senator. And and and those people produce a lot. They work hard. They produce a lot. But the problem is, if you let them keep what they produce, they’re just going to waste it and frittered away on stuff like food. And that’s not going to move society forward. So what you really want to do is let that wealth accumulate at the top. And people like me, he says, are going to go ahead. And we’ve got connections and we have educations and we know how to do things and we will move society forward. And this is obviously the way things should be, because, look, we got beautiful paintings on our walls and God obviously favors us, unlike those people at the bottom of society. And he argues, of course, this point with regard to the African-American neighbors and slaves, but he also that to the north and he says you guys are idiots because you’ve also got this same group of mud, but you let them vote. And if you let them vote, they’re going to ask for more of what they’re producing. And if they do that, they’re going to redistribute wealth. And that means people like us aren’t going to have as much money and we’re not going to be able to move society forward. Andrew Carnegie says something very, very similar in 1890. And obviously you see the same thing. Nowadays, with the concept of makers and takers, and I know only the best people, it’s a way of thinking. It’s a it’s a philosophy itself. But what happens when they begin to fear the idea of widespread voting is in each of the periods that I’m talking about, the eighteen, fifties, the 80s, 90s, and now the present is leaders start to claw back who gets to vote first. They start to suppress the vote either through nowadays making the lines long or in the nineties, having grandfather clauses or understanding clauses in the Constitution or in the fifties making voting dependent on property. Then when even that isn’t enough, they begin to change the media system so that people only get access to their version of the facts. And that happened in all three of the periods I’m talking about. And then they actually start to game the system like they are nowadays, saying, well, we’ll gerrymander the states to the point that you, the Democrats, basically can’t win. So first they start with suppressing the vote, then they start with changing the media landscape, and then they go forward and say, I’m just going to change the way things are. And when even that doesn’t work in all three of the periods I’m talking about, they say, OK, we’re really in trouble now. We better make sure that nobody can change the way the system works by breaking it into the Supreme Court. So in the eighteen fifty show at the tourny court, the Roger Tourny court going ahead and saying we’re just going to go ahead and advance the interests of the elite slaveholders to the courts, even though they absolutely do not have the numbers. They’re are only about one percent of even the southern population, let alone the American population. In the nineties, you have the Melville Fuller court, which has just such contorted decisions that the only ones that have still stood are the insular cases, which I think should be on the table now. Lochner, which says that the state can’t limit workers hours. It’s Plessy v. Ferguson, which is a railroad case. I mean, we look at as a racial case, it’s a railroad case. It’s in Ray Debs is publicly farmers loan saying that the state isn’t strong enough to have an income tax. You know, they try and bake their vision into the Supreme Court. And I will point out that we don’t retain the decisions from the tiny court or the fuller court. And I expect the decisions of the Roberts court will also, in 20 to 30 years, be largely replaced.

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S1: So this is actually really why I needed to talk to you today, is because I think we forget and Justice Ginsburg used to always say it’s a pendulum swings back and forth. And I think for an awful lot of folks who listen to this show, this is an apocalyptic once in a lifetime abuse of the levers of government and the court that we’ve never seen before. And what you’re saying is, oh, buddy, no, no, no. This is by capturing the court and getting the court on board with this plan. This is something that happens and it’s corrected. And I guess my question is it’s corrected in some sense by a move back to that first vision of democracy you describe, which is you pass H.R. one, you give statehood to DC in Puerto Rico. You make sure everybody can vote. You do all the things that should have been done. By the way, after Bush v. Gore and the motor voter law to ensure that voting is easy as opposed to difficult. This is correctable. What other big structural changes have to happen to get the pendulum? I think a lot of people want to see the pendulum where it’s going to go. What other big structural reforms happen?

S2: Well, so first of all, to go back to the project of democracy, which I think is really where we need to be, I hear this all the time. This is it. It’s over. We’re done. We’re they’ve got the court. It’s going to be over here. And I just want to put that as an intellectual problem. If we are a democracy, how does a small minority retain power? I mean, what does that look like? And I’m not sort of like being philosophically what does that look like? What does it look like if, in fact, we have a Supreme Court that takes away things that 80 percent of us. What does that mean? We all go, OK, it’s over now. I just don’t see Americans saying, OK, yeah, I’m going to do exactly what the justices say. And a great example of this, of course, is the Dred Scott decision of eighteen fifty seven, which was enormously unpopular for various reasons that I won’t go into here. But but Americans didn’t go. Oh, yeah, that’s right. No, a small minority of Americans went, yeah, that’s right. We’re going to abide by the Supreme Court and the vast majority of Americans would like it happen in here. So the question is, first of all, what is that look like? And I think it’s not sustainable. And this is one of the things I keep hammering on. It is not sustainable for us to have a president who is in power with only a minority of the popular vote. And I think it’s really astonishing where we are right now in America that we have somebody running for re-election who is making no pretense to winning a majority. He is simply trying to game the system, and that’s never happened before, and that’s really important. The Supreme Court is not reflecting where the majority of Americans are. That is not sustainable. Gerrymandering does not reflect where people are. That is not sustainable. The Electoral College doesn’t reflect where people are. That is not sustainable. The Senate does not reflect America. That is not sustainable. So where does the change come from? And the answer to that depends on how you see the world’s eyes. I believe I am an idealist, so I believe that the world changes according to the way people think and the pressure that we put on our representatives, because if we vote them out, the people that we elect to make our laws are going to reflect more what we want them to do. And I think one of the problems that we’ve had since the Warren Court, since the Burger Court and really since the New Deal, a lot of Americans thought our system was done, that we were going to have Social Security, we were going to have Medicare, we were going to have basic protections for minorities, for women. Those things just were there. I remember students saying to me 20 years ago when I talked about attacks on women’s reproductive rights and then saying to me, oh, you’re just an old feminist. These these are never going away. No one’s going to put up with it. And I kind of wish I had the list of those students in front of me to say, shall we talk again? But I think now that Americans recognize that they need to put skin in the game. And every time that I’ve talked about the nineteen fifties and the nineteen sixties, the 80s, 90s and the nineteen aughts and the eighteen 60s and the 70s, what changed the American government was the American people stepping up to the plate and saying, this is what democracy means, this is what we stand for. And I see that happening now.

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S1: So as I bring you my worries, help me hold my worries. But as I bring them to you, one of the things I do worry about, you’ve talked around this, but let’s just put it out there is the great American reverence for the court. The court is our secular church. It is designed that way. They shuffle around in black robes for that reason. And even when we see the popularity of the other branches tanking, the court is held in really high esteem and by design, right. That’s the Federalist Papers. Neither the purse nor the sword. We love them. We need them and we believe in them. And amazing piece this week, I think, in New York magazine saying even as we’re seeing a court quite literally being packed to the dismay of Americans, they still love the court. They can’t disaggregate the politicization of the court and the aggressive attempts by the court to distort democracy with this idea that they revere the court. And I don’t say that to say Americans are stupid or, you know, I just think we need that. We need to believe that this third branch of government is oracular and different. And so when I worry and what I think about is I think we are careening into a moment where the court may just hand down some 63 per curiam Bush v. Gore style, something something maybe they won’t even include a reasoning. They haven’t included reasoning all summer on these voter suppression cases. But I think that the court is both the solution and the problem. Heather, I think that we rely on it to solve the moment we’re in. And also because of that deep affection, reliance regard, we’re almost completely unaware of the peril it’s putting the country in. And so I don’t even know what the question is except to say I feel fairly confident that if there is a six three decision saying we’re tossing ballots in Michigan or Pennsylvania and it’s Bush v. Gore one. Right. Only when I’m going to attempt to put this whatever this equal protection argument is in ways that make sense, that there’s a deep fear I have, that the American public will go, yeah, well, that’s the court. That’s what we did in 2000.

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S2: Well, it’s probably why I study politics and you study the courts because we’ve had this moment happen before in America. And I disagree. I don’t think Americans will say, oh, yeah, never mind. We’re perfectly happy for the courts to have gone ahead and destroyed something we care a lot about. And I think you can see this with the reaction to the ACA and the idea that it’s going before the courts a week after the election. Americans care a lot about the ACA and they have not paid attention to the courts because for many Americans, it does not seem to really be part of their lives. I mean, you talk about the big Aratula and for sure they are, but they’re also not on the same schedule, anybody else’s. And they seem to deliberate in private. And they’re all six hundred years old. And, you know, no one’s really paying that close attention. And I think they are paying attention now. And I don’t think I don’t think that you can divorce the reaction to the court from the reaction to what seems to be the machinations of Republicans across the country to go ahead and stay in. Even though they are so radically unpopular right now, I think a bigger concern for me is that and I actually think this is probably a concern of Chief Justice Roberts as well, is that respect for the court and the idea that if they pull stuff that is too out there, the standing of the court is going to fail. And if the standing of the court fails, that puts us into a real problem. I think we could actually game out a lot of what that would look like and a lot of what it might look like in the next 20 years if we do end up trying to repair the holes in our Democratic mechanics. Because, of course, the court has taken on a lot of power that it didn’t used to have. And the court has also gotten quite divorced from the political system. So I believe and correct me if I’m wrong, I believe this is the first Supreme Court that does not have a politician on it. I think Sandra Day O’Connor was the last. And so they are increasingly divorced from what real Americans want in their lives. And I think that’s really going to matter. So I’m a little less I’m a little less concerned than you are about people not caring. I’m certainly concerned about what the court’s going to do, but I think Americans will pay attention to it.

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S1: And maybe useful to say, because we think of FDA’s court packing plan as this colossal disaster that almost takes his presidency. But you’d be the first to say actually no, because it although he doesn’t pack the court, it triggers this, you know, a switch in time that saves nine. The court begins to modulate its rabid anti New Deal behavior, which is exactly, I think, what you’re saying about John Roberts. Right, that at some point there is a recognition, holy cow of 80 percent of the American public hates so freaking loudly everything we’re doing, whether or not we talk about court packing the court itself changes. I guess I want to ask you one last question. And I know we’ve been in sort of Mylène, which is the law and the constitution, your language, which is history. I want to talk about this third lane that you wrote a little bit about this in your Friday letter. But I know you think about it all the time. And that is the messaging piece. I think in your Friday letter, you talked about Joe McCarthy and the sort of flooding the zone with I’m going to just say, shit, you know what it means when the messaging apparatus is distorting truth so consistently that people will just glom onto anything that feels true. You mentioned that that’s a piece of the puzzle here, how you get people to vote against their own interests. But I’m not sure I have a prescription for that problem either. And I know it goes to deep questions about Fox News and it about, you know, Sinclair Broadcasting and the fact that many, many, many, many Americans get all their news from Facebook. Well, they get your news from Facebook, too. So it’s, again, the solution and the problem. But I wonder if you could just take us out by talking about if this moment in which. It’s a cliche, Heather, to say we live in two universes, there are people who get all their facts from very distorting media sources. Has this happened before? Have we ever been in a situation where foundational truths are so distorted that a big, big proportion of the country doesn’t actually agree on facts?

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S2: You’re going to hate me. But yeah, I knew it. I knew it.

S1: You’re going to say those regs, those broadsheets were part of them. Go ahead. You say it.

S2: Well, yeah, because again, you tend to forget, but it’s only really in the late 19th century that we start to see the ability of media to travel across states. So in the eighteen fifties, the news that you’re reading in South Carolina is completely different than the news that you’re reading in Massachusetts. And of course, we had a partisan media at the time as well. We even had in the 90s a version of Fox News, which was the Harrison administration actually bought Frank Leslie’s illustrated newspaper and made it a mouthpiece of the administration secretly. So a lot of people didn’t know that was the case. They kept it only during that administration and then they sold it again. So, yeah, we have been here before. But I think what we are really doing in America and across the world is grappling with what is probably say to my students is the biggest change since fire, and that is the Internet. So we have this new technology that erases boundaries, but also lets us cherry pick where we are. It is a new frontier where anything goes, but also gatekeepers can direct you without you knowing what’s there. It’s a place where entrepreneurs can thrive, but at the same time, people can buy and sell you by adjusting what they advertise to you. And I just don’t think we currently know how to handle that. Do I think that democracy is going to be able to master it? Yes, I do. And I believe it because I believe in the concept of human self-determination with an almost religious belief that we will not put up with being serfs. But I also believe that in a practical sense, if you look at I know it seems like forever, but in the scheme of things, the advent of the Internet is pretty recent and the uses to which it can be put are pretty recent. But if you look nowadays, even at things like Twitter beginning to put alarms on tweets and Facebook beginning to flag certain things. Now, I am certainly not an advocate for either one of those platforms, especially Facebook, I think has done incalculable damage. And by the way, that is precisely why I am there, is because it is my attempt to push back on. That’s where people get their news. So and most respectable, if you will, people won’t be there because it’s such a cesspool. And so it was a terribly underserved group of people. And that’s precisely why I write my best stuff is on Facebook. I make it a big point, give my very best material there, because I respect the people who who get their news there and I want to make sure they have access to good material. So I’m not defending it. Yeah, but what my point is, as a historian, I always say it’s like the Wild West. At first it is completely wild. I mean, there there’s murders and there’s heavy drinking and there’s genocide and there’s whatever you want to put out there because there is a breakdown in law and order when you first rush into a new region, but then you start to get boundaries. And I think what we’re seeing now is the idea of getting some of those guardrails over the Internet. And that’s one of the things we’re going to have to solve. But do I think that we are going to end up in some dystopian world? I really don’t. I do think we’re going to end up in a world that I can’t envision and that really nobody can envision yet because we haven’t built it yet. But one of the things that gives me enormous hope is that for the first time in my lifetime, people are getting involved and caring. You know, I’ve been at this project since nineteen eighty seven and used to be a joke in my family to try and get me wound up about politics because it was so funny because nobody else cared. And now those same people are like, wait a minute, where do I vote, where do I do. And so a lot of people are like, we’re in this terrible moment. I’m like, no, we’re not. We’re beyond the terrible moment. The terrible moment was like in 2000 when people like, er. Yeah, Bush, Gore, who cares? Now people say, hey, I care and I’m showing up for this. And that’s precisely where we have been in the fifties and in the nineties. And even if you will, in the nineteen twenties and out of all those moments we got a reborn faith in democracy and in equality before the law and equality of access to resources. And at my age, I just kind of hold onto the hope we’re going to do it again.

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S1: Heather, one of the things that I have loved as a slavish reader of your letters is that I do think you always manage to walk the line, but. Telling people simultaneously, nobody’s coming to save you, you’re going to you know, it’s not going to be Muehler, it’s not going to be Ruth Bader Ginsburg, like you got to do it. But also, if you do it, we could change everything. And I think that that really is it’s sort of the be fearful, be worried. It’s a little grim and also be powerful because I think that we forget we forget that that really is like the greatest superpower we have is to not get rattled or freaked out or paralyzed, but to just step in and do our thing. So I just want to thank you so very much for joining us. Heather Cox Richardson is a professor of history at Boston College. She’s the author of six books about American politics. And she began writing her daily letters to an American in twenty nineteen. She has ridiculous numbers of subscribers, including my husband and myself. And you should to Heather, thank you so very, very, very much. I know you were up all night with the debate, so thank you very much for taking time to help both come down and round me up in equal measure. Well, that’s kind of the plan, but it’s a great pleasure to be here.

S2: And you keep doing what you’re doing, too. I’m a huge fan of everything you’re doing and describing the courts and what happens. You’re the first person I go to every single time something happens over there and a lot of stuff seems to be happening lately and it will keep on happening.

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S1: Thank you for being with us. Let’s on the flip side, when this is all over, have a calm, tranquil conversation about what comes next. This brings us to everybody’s favorite part of the show, which is our check in for Slate plus only with Mark Joseph Stern. So here we are. Mark covers the courts and the law and the Supreme Court and the state courts and most importantly right now, election law tirelessly for Slate. So, Mark, welcome back. Thank you. And this is our special thanks to our Slate plus members, because without you, we couldn’t do any of this. So thank you. Thank you for the work you help us do. Thank you. And Mark, I want to just jump right in because as I said, you have been the one who, like me, is kind of watching the debates and kind of watching the polls, but is well aware that this election may well be decided in that third secretive branch of government that we like to call the courts. And this has been a rather terrible week on that front, correct?

S4: Yes, that is absolutely correct. It has been a rotten week at the Supreme Court, even though the court handed Democrats what appeared to be a victory, as we will discuss, it was a Pyrrhic one at best. And it’s basically suggests that we’re in for a lot of doom and gloom for probably the rest of our lives over at the Supreme Court.

S1: Mark, outstanding, lifelong. You heard it here first, Mark. We have a lot to talk about, but I wonder if we can talk just for a moment about the Fifth Circuit and Indecisions. I know we talked about one the last time you and I spoke of doing away with drop boxes, but then also newly about just tossing ballots.

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S4: Yeah. So earlier, five Republican appointed judges on the 5th Circuit. Can we just call them Republican judges? Now, at this stage, I mean, it’s November 20, 20. Like, let’s just let’s just take the mask off, so to speak. Keep your masks on the actual ones. Three Republican judges allowed the governor of Texas to remove a ton of ballot drop boxes that were extremely popular and allowed each county in Texas to have just one Dropbox, which is a huge problem because, of course, there’s all kinds of USPS delays these days. The postmaster seems to be slowing down the mail. People want to make sure their ballots are counted. But some Texas counties have like five people. Some of them have like millions and millions. And those counties that have millions of people, all those folks are now going to have to wait in line for the one ballot, Dropbox, which is voter suppression. And yet the Republican judges on the 5th Circuit claimed in a rather Orwellian move that the governor had actually expanded the right to vote. More recently this week, the three Republican judges on the 5th Circuit said that it was totally OK for Texas to throw away mail in ballots that had some kind of alleged technical deficiency, even something like a signature mismatch. Election officials totally untrained in handwriting analysis, claiming that two of your signatures don’t perfectly align. The state can throw away those ballots and it doesn’t have to tell you and it doesn’t have to give you an opportunity to fix them. So basically, everybody who votes by mail in Texas, well, nice idea. It may work. It may not. Your fate is in the hands of totally unaccountable election bureaucrats who have absolute power to nullify your vote.

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S1: If they so choose, OK, and Texas is not the only place where this is happening, I suppose it’s no accident that we are seeing these cases or I think we’ve talked about this before. I think there’s more than 300 now election law cases going on in forty six states. It is no accident that the money is being poured into Texas and Pennsylvania and Wisconsin. Right. All the states that are going to be within the margin of litigation. But then the Supreme Court gets in the action. As you noted, up top, everybody was super happy initially when the court intervened in a Pennsylvania lawsuit. But tell us why that really is a Pyrrhic victory.

S4: Well, because it was a four four split with the chief justice joining the liberals. And I guess we’re going to have to start calling Roberts like a liberal justice now just in comparison to his ultra conservative colleagues. So, look, the Supreme Court allowed Pennsylvania to count ballots that are received up to three days after Election Day so long as they’re mailed by Election Day. OK, that’s the good news. And that’s why Democrats are celebrating. But like I said, it was a four four vote, which means that the four ultraconservatives, Thomas, Alito, Gorsuch, Kavanaugh, all voted to prevent Pennsylvania from counting those ballots. Now, why is this a big deal? Why is it terrible news? Because this is not the normal election case that we talk about on the show. The normal election case, a federal district court comes in and says we’re going to block this voter suppression law. And appeals court either gives it a thumbs up or thumbs down. And then the Supreme Court comes in and consistently says voter suppression is OK. Right. This case is totally different because it was all in Pennsylvania state courts. All of the action was at the Pennsylvania Supreme Court. The Pennsylvania Supreme Court basically had to decide between two conflicting rules. There is a statute that says ballots can only be counted if they’re received by Election Day. But there is a constitutional provision in the Pennsylvania Constitution that provides for free and equal elections and guarantees that all voters ballots should be counted. And so the Pennsylvania Supreme Court says, look, to kind of harmonize these rules, to make sure that all all votes are counted, we’re going to extend the ballot deadline. Those that are received within three days of the election, they’re going to be counted unless it turns out they were mailed after the election. Right. Seems like a pretty straightforward, simple rule. Right. Like this doesn’t sound very radical to me. Does it sound radical to you? It does not. OK, good, because lots of other states do this. OK, 18 states and the District of Columbia count ballots that arrive after Election Day. But for conservative justices wanted to come in and stop the Pennsylvania Supreme Court from interpreting its own state’s constitution to allow this modest expansion of voting rights. What does that mean? It probably means that those four conservatives believe that state courts are powerless to protect voting rights, to enforce their own state constitutions, to ensure that all elections are free and equal. If the legislature is controlled by Republicans and Republicans, scream and kick and shout and say, we do not like voting and we want these ballots to be thrown out. That is extremely troubling because the rule from the American founding up till now is that state supreme courts have total power to interpret their state constitutions. And now it looks like four conservative justices are going to say, well, actually, it’s totally fine when state supreme courts suppress the right to vote. But when state supreme courts expand the right to vote, we’re going to come in and stomp on their faces.

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S1: So there are a couple of parts of this that are troubling. And one of them you’ve just said really eloquently, but I want to talk about it. Which is it? This is just hornbook law that state supreme courts have the last word on state law. This is not a complicated notion and this has a lot to do with just the basic division of labor and constitutional checks and balances for the U.S. Supreme Court to Bigfoot in until a state Supreme Court. That its interpretation of its own law is incorrect is, as you say, horrifying. I guess we should flag here. This is what the Supreme Court did in Bush v. Gore.

S4: Well, it’s what three conservative justices wanted to do in Bush v. Gore. Right. But ultimately, Kennedy and O’Connor, no flaming liberals couldn’t bring themselves to sign on to that because it went too far for them. That’s why they concocted this ridiculous equal protection, equal dignity, a voter’s rationale that they then said, by the way, never use this again because it’s B.S. We just made it up for this case.

S1: But I think it’s also really interesting that when John Roberts signs his name to Shelby County, eviscerating the heart of the Voting Rights Act, his predicate is all states have. Dignity. We have to really we have to honor the dignity of the states, and it is astounding to me that we had three justices, as you say, in Bush v. Gore and apparently for today and maybe next week five, who think that the dignity of the state somehow stops when the state Supreme Court, as you says, makes a proclamation about state voting law in order to expand the franchise.

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S4: Right, exactly. Because they interpret this constitutional provision more narrowly than the court ever has before. This totally goes against all precedent. The Constitution says that the legislature gets to regulate elections. OK, fine. But, you know, the legislature played a role in passing Pennsylvania’s constitution, right? The legislature passes a law, but the state courts have to interpret it. The courts aren’t usurping power from the legislature. They’re just trying to balance the laws on the books that have been passed with the aid of the legislature. So it seems like what these four conservative justices and maybe soon five are really trying to do is overrule state law based on their own subjective sense of how state courts should have interpreted that law. And just if I can give one more example of this. Right. So we have a very similar case in North Carolina right now that is probably going to reach the Supreme Court after Amy Koni Barrett has joined, which is absolutely terrifying. And it’s a really similar situation. Right. So the the legislature says, OK, we’re going to count ballots that are received up to three days after Election Day. But if there’s a natural disaster, the state elections board can extend that deadline. OK, so the state election board comes in and says we’ve you covid as a natural disaster, which is not strange or unusual at all. It’s been deemed a natural disaster for all kinds of legal purposes right now. So the board says we’re going to extend this deadline to nine days after the election. And three conservative judges on the 4th Circuit claimed that that was unconstitutional for a state board of elections to exercise the power delegated to it explicitly by a state legislature to modestly expand the right to vote. Three conservative justices on the 4th Circuit said that that was unconstitutional and said even though they weren’t in the majority, said you need to take this up to the Supreme Court, North Carolina legislature, because we think that the legislative intent has been trampled upon and the state board of elections is out of control. And that is such an egregious affront to federalism, such a disgusting infringement on really core principles of state sovereignty, that it absolutely boggles my mind to read conservative judges espousing it. I mean, this is the kind of shitting on state sovereignty that you wouldn’t even see from the most flaming liberal in the entire federal judiciary coming from the mouths and pens of conservative judges.

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S1: Right. I mean, this is exactly what you just said. O’Connor and Kennedy could not even hold their nose and crap on states. And yet here we have joyful 4th Circuit judges doing the same. I wonder if we can talk about Alabama for one quick second in our tour of gross overreach, because this is another case, I think, this week. Again, if you’re not clocking these cases the way Mark is, that’s why Mark is here. But essentially, Alabama voters being told like voting should be almost impossible. That’s what God wanted.

S5: Yeah. Yeah. So Alabama. Oh, Alabama. So Alabama’s secretary of state, who is a notorious voter suppressor who claim that civil rights icons would want it to be hard to vote today.

S6: He’s a white guy. He fabricated a rule out of thin air that nobody could vote by curbside in Alabama so there would be no curbside voting. Let’s be clear about what curbside voting is, a super common practice endorsed by the federal government itself, actually, where instead of having to go into the polls, the poll workers come out to you, to your car and make sure that you don’t have to interact too closely with anybody else. You keep the windows down, you fill out your ballot privately, you give it back. No problem. Right. Easy. It’s been done many times before, but Alabama and its covid, it’s an old people.

S5: Old people don’t want to get covered. Old people don’t want to die. They want to live to their grandchildren’s experts. They want to be able to see their kids again. OK, old people want to be able to vote in their cars, give them this Alabama but no, because it’s Alabama. So the secretary of state makes up this ban and says counties absolutely cannot allow curbside voting. So a federal judge comes in and says that violates the Americans with disabilities.

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S6: You are denying disabled people equal access to the ballot to basic civic participation. A federal appeals court upholds that order and says, look, all he all Obama has to do is allow individual counties to offer curbside voting if they want. So it’s not a mandate, right? Any county that doesn’t want it doesn’t have to do it. But there’s a couple of counties that have said they’re ready, willing and able to do it and Alabama’s got to let them operate. That goes up to the Supreme Court. And guess what? By a five. A three vote, not even explaining the reasoning a little bit, the conservatives shut it down, including John Roberts, this time joining with the four horsemen to say, actually, it’s totally fine for Alabama to make up a ban on curbside voting and forbid it throughout the state. So, frankly, that’s the kind of awful ruling that we’re used to. It alarms me. It disgusts me, but it doesn’t frighten me quite as much as the Pennsylvania North Carolina cases, because at least in those cases, you have the state trying to do the right thing and then you have the courts coming in and saying, no, you’re not allowed to do this. In the Alabama case, the state is doing the wrong thing and the courts are just letting it suppress votes. That’s bad, but it’s not as awful as the phase that we are probably going to enter in election law as soon as Amy Connie Barrett is confirmed.

S1: And I think it’s worth saying this outright. You’ve said it, but let’s say it again, because these Supreme Court decisions, both in Pennsylvania, we’ve seen this all summer happen on the shadow docket. We don’t have reasoning. And as you noted in your piece about the four four split in Pennsylvania, Mark, that means we have to guess which of the alternate arguments was being. We don’t even know what the court was deciding. We simply have a vote count. We don’t know what the rationale was.

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S5: It’s a terrible look for the court. It’s terrible for the development of the law. Right. One of the other arguments presented in the Pennsylvania case is that it’s actually illegal for any state to count ballots that are received after Election Day, which is a frivolous argument. But, hey, we don’t know if the four conservatives also supported that right before ultraconservatives. And so there’s a possibility that four justices on the Supreme Court right now think that laws in 18 states and D.C. that allow the counting of late ballots are illegal. And we just don’t know because it’s all done on the shadow docket. We have to guess we have the Supreme Court making substantive rules of election law, really important ones that affects all of us without explaining their reasoning in late night orders that few people really pay attention to because the court is not acting like a court. These judges are not acting like judges. They are not providing us their reasoning and analysis. They’re acting like a super legislature. That’s just another veto point for voting rights, which I’m pretty sure is not what the founding fathers intended supposed to be.

S1: And I think it’s worth also saying they’re signaling. Right? They’re calling out signals to litigants, to the Trump campaign, to the Republican Party, saying these are the kinds of suits we might be willing to invite. And it’s not just that we don’t know, as you say, what substantive law was established on Monday night when the court handed down that forfour order. But it certainly seems to say let a thousand flowers bloom, bring your kooky arguments. We will certainly be open to them. And I think that that level of indeterminacy with less than two weeks to go before the election is really destabilizing.

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S4: Absolutely.

S5: It’s terrifying to see an action because Republicans certainly get the message and they have already brought another case in Pennsylvania that basically presents the same argument because they hope it will get to the Supreme Court after Amy Barrett is confirmed. Right. And they think they’ll get that fifth vote to prevent Pennsylvania from enforcing its own constitution and counting ballots that arrive late. So I agree this is the kind of strategy that I think John Roberts shied away from over the last few years where you saw Roberts casting strategic votes as a sort of signal to the conservative legal movement, saying, this is where I draw the line. I’m thinking King v. Burwell. Right. Obamacare subsidies. Not going to the census case, of course, to some degree, the ACA case. Right. He’s not going to sign off on this extremely sloppy lawyering or these radical theories that would entrench Republican power against the will of voters or the Democratic will more broadly. And Roberts is now in the minority or he’s about to be in the minority because Amy Barrett will join the four horsemen and starts kind of establishing the Federalist Society party line as the law of the land, maybe within hours or days of her joining that court.

S1: And I want to end with the Federalist Society, Mark, because Rickerson and I wrote a piece at the start of the week saying it’s weird that Leonard Leo and Carrie Severino and some of the people who’ve been the winners, Waldo’s of the conservative legal movement and the big money behind the conservative legal movement suddenly are getting themselves involved in these lawsuits. Suddenly, Leonard Leo is nowhere to be seen in the Federalist Society, but he’s popped up finding ways to channel more dark money to really, as you said, egregiously frivolous suits that. Mostly serve to grind down election officials who are trying their best under covid hard circumstances to make elections functional.

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S6: So I just and I should just say, like Leonard, Leo’s voter suppression group is actively spreading disinformation. Right, about voter fraud, about voting rights. It is trying to sow doubts about the legitimacy of this election and this vote clearly teeing up a challenge to the results. And Federalist Society members are nowhere to be found. When you talk about this, you’re not going to see them criticizing Leonard Leo on Twitter. You’re not going to see them condemning him in any kind of speeches or articles, because this is what the Federalist Society has built. This is an integral part of the well-run machine. That is the kind of broader Federalist Society framework that includes the Judicial Crisis Network. Carrie Severino, all of the billionaires and dark money front groups and shell companies that are used to funnel hundreds of millions of dollars into the fight for conservative judges and against voting rights.

S1: And let’s just say it outright, because I think you and I are trying to draw attention to this, that when the Federalist Society, even last week styles itself as a convivial debate society that’s just bouncing around ideas so that conservative legal arguments are surfaced in law school and young minds can have both sides of the story. When you’re overtly or when your former leadership are overtly working in the states to bring votes, oppressive litigation, you’re just not a debate society anymore. Some like just say it out loud with me. And yet, as you say, no ownership of that fact.

S5: Absolutely no. They’ll say, oh, Leonard, Leo, he’s not part of the Federalist Society anymore. You know, he took a leave of absence or the Federalist Society is just a debate club. All this stuff is separate. Well, it’s funded by the same people and it’s run by a lot of the same dudes. And I think that we’re a little bit smarter and not quite naive enough to buy the really kind of offensive gaslighting the Federalist Society members are engaged in right now to claim that the men, the men who built up this entire network, the donors who are funding it, that all of them who created the Federalist Society, who are now suppressing votes have nothing to do with the debate club.

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S6: That is our glorious fetlock.

S1: Let’s end at Bush v. Gore, if we might, Mark, because we sort of started there. And I feel as though all of our listeners probably at this point get the sense that you and I are not 100 percent confident that we know the winner. We hope we know the winner on November 3rd, November 4th, November 10th, but that there will be litigation, the margins are massive and that the litigation, as you and I think are agreeing, is going to be sewn in ground. That has been really, really carefully tilled over the past summer to suppress votes and not to broaden the franchise. When we talk about Bush v. Gore, I want to just be really clear that that was meant to be the Supreme Court’s good for one, right. Only 2000 thing. It’s been cited once by Clarence Thomas in a dissent. It’s not meant to be binding law. Boy, is it popping up in the litigation. I mean, they’re citing Bush v. Gore as though that equal protection principle that you opened with, as though that is somehow established precedent as though it’s real.

S7: And you saw this in the North Carolina case, and those three conservative judges supported this argument that somehow by just extending the ballot deadline a little bit, that the Board of Elections was violating Bush v. Gore by infringing on voters equal protection, their equal opportunity to cast ballots, not a principle enforced by the Supreme Court since the moment Bush v. Gore came down, not one like you said that any of the justices even speak of. I mean, the truth is, you really can’t find anyone today who will, with a straight face, defend the decision in Bush v. Gore on the merits. Right. That equal protection holding was so obviously ridiculous. The idea that, oh, these the recount was being done in too many different ways, that it was violating voter’s equal dignity, was so stupid on its face that you didn’t see it cropping up until now until Republican election lawyer Amy CONI buried in the offing and say maybe this is our shots. Let’s turn this to get good for one right only into the actual law of the land and screw over Democrats forever.

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S1: And let’s just end on the happy note that three sitting members of the U.S. Supreme Court, once Barrett is elevated, will have worked on the Bush team for the Florida recount. That’s amazing. Good fortune for random election lawyers, really. It’s incredible. So, Mark, Joseph Stern, always a delight, even when you’re apocalyptic and gloomy. Thank you very, very much for joining us this week, Mark. Joseph Stern covers the courts, the law, LGBTQ issues, voting, all the things for us at Slate. Mark, thank you very much. Have a good weekend.

S7: Thank you. I hope you are able to sleep at least one hour at night.

S1: That’s what we’re shooting for. That and the vodka. Thanks, Mark.

S3: And that is a wrap for this off week on week, I can’t remember episode of Amicus, thank you so much for listening along and thank you so very much for your letters and your questions. You can always keep in touch at Amicus, at Slate, Dotcom. You can find us at Facebook dot com amicus podcast. We love your questions and we’re trying to figure out what it is we should keep covering. So keep them coming. Today’s show was produced by Sara Bermingham. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate podcasts. We will be back with another episode of Amicus sooner than any of us could believe. Please subscribe. Hang on in there. Take good care of yourselves.

S1: This ad free podcast is part of your Slate plus membership.

S2: It’s really kind of a targeted political project rather than a coherent judicial ideology. You could make a very interesting judicial ideology based on original concepts of democracy and the relationship between states and the federal government. They’re not doing it.

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S3: Hi, and welcome to Amicus Services, Slate’s biweekly podcast that now seems to be its weekly podcast about the courts and the law and the rule of law and the Supreme Court. I’m Dahlia Lithwick. I cover those things for Slate. This past week has hurled us toward two big states in time. One, the ascension of Amy Connie Barrett to be seated at the U.S. Supreme Court replacing Ruth Bader Ginsburg. Judge Barrett was voted out of the Judiciary Committee this week with no Democrats in attendance and the November election that will be upon us November 3rd. Just over a week later on in the show, we are going to talk to Slate’s own Mark Joseph Stern in a Slate plus segment that covers the courts and election news of the week. And trust me, there is an immense amount of it. This week I wanted to try to close the circle on something that I’ve been trying to understand.

S1: I’ve been trying to explain, but in really bad and compressed ways for some time now, I notice that I keep using this term minority rule, but I use it to describe this whole panoply of systems and ideas and thoughts. It’s almost a tick for me and I use it to describe the mass closing of polling places. I use it to describe what happens when the Senate rams through a Supreme Court nominee just days before an election when they wouldn’t do that in 2016, 11 months before an election. I also keep using minority rule to describe what happens when the Supreme Court takes positions on guns or abortions or the Affordable Care Act that are totally misaligned with majority interests and also very aligned with dark money interests. I use it to describe stuff. I just don’t like minority rule, and that’s sloppy. So I wanted to bring in somebody who could help pass. What I mean when I say that the conservatives on the U.S. Supreme Court at this moment are not just ideological, they’re also partisan. They’re greenlighting gerrymandering, their greenlighting vote, purging, they’re helping suppress majority rule and help me understand that in the context of history. So one last stipulation. I fully understand that minority rule, minority tyranny encompasses all those things I just said. But I’m just going to cop to the fact that I am all for minority rule or at least a counter majoritarian check on government. Think of Brown v. Board. Think of Oberg fail. So I’m imprecise. And so I have conjured up somebody who’s probably well known to an awful lot of you. She’s been an absolute beacon, not just of a history, but of precision to me this past year. Heather Cox Richardson is a professor of history at Boston College, the author of six books about American politics. She started running, writing her daily letters to an American in 2019. And she now has many, many, many, many subscribers. I think she’s the first guest on this show. When I said to my husband, oh, my God, I’m going to go interview Heather Cox Richardson, he said, oh, my God, tell her thank you. So if you’re anything like me and you read her daily roundups at four or five or six o’clock every morning, and if you aren’t reading her, you should be. But I think her two superpowers are in making connections between events that seem random and then explaining it through this lens of crystal, an understanding of American history. So, Heather, I very rarely get this weird and fangirl girly, but thank you so, so, so much for being with us. I know you are the most tired person in America, so welcome to Amicus.

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S2: Oh, I’m so thrilled to be here. And I will fan girl right back at you. I’ve been reading you forever.

S1: Well, thank you. And I wonder if we could just start. I know we were in a weird interstitial space between me that thinks about the constitutional law, you that thinks about history. But I want to start with the history of the Constitution, if we could, because I do think it’s useful when we’re thinking about constitutional systems to understand the role of majority rule, minority rule, minority checks on majority rule and what the framers were thinking about when they baked in. Certain. Minority protections into the Constitution, but also I think that we forget sometimes or I often forget in my magical thinking about the Constitution, the Bill of Rights, that the founding documents were always a compromise between different versions of which white, privileged patriarchal men were going to dominate the rest of us, right?

S2: Yes. So I think one of the ways it helps for me to think about all this material is that, you know, what we talk about and we talk about constitutional law or the way laws work is actually really interesting. It’s fascinating to watch how people make arguments and who gets protected and all of those things. But that’s a really kind of presentist way to think about things that you can’t really read that back into the constitutional era. And you certainly can’t look at the Constitution as something that was baked in the seventeen hundreds and then walked away from because that has always changed as well. So for me, it’s much easier to think about all of this where the court is today, where the court was in the nineteen fifties and the nineteen sixties in the nineteen seventies, where the court was in the nineteen twenties, where the court was in the nineties, where the court was in the eighteen fifties. It’s easier to think of all those things as a contest in America over what it means to be a nation in which theoretically everybody and I’m going to use that advisedly right now. But everybody has a say in their government because of course, that’s the theory, right? All men are created equal. And that’s a really radical thing to say in seventeen seventy six. I mean, it’s a whole new way of looking at the world. But what does it mean when you actually try to make a government based on that? And that’s one of the experiments that we’ve been doing ever since, is how do you make an actual government that works, that guarantees the voice of the people who are governed in their government itself. And the struggle over that has, over the course of the 19th century, really broken into a struggle between democracy in America, meaning the role of a small elite of white propertied men almost exclusively over everybody else. And on the other hand, the ideas, as Abraham Lincoln articulated it so powerfully in what people like Eric Foner called the second founding of democracy, meaning that that ordinary people, regardless of their race or it could be expanded, expanded to their gender. Of course, Lincoln didn’t do that, but people at his time did that, that ordinary people are the ones who should have a say in their government. And that struggle between the idea of democracy, meaning an elite rule versus democracy, meaning everybody actually has a say in their government, has shaped virtually all of the fights that we have had over the Constitution and over the Supreme Court since the eighteen sixties.

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S1: So when Mike Lee says for the first time, possibly uncovered medication, we’re not really a democracy. We were never intended to be a democracy, he’s flicking at some version of that theme that you just described. Right.

S2: This is just drives political historians insane. But we’re not a democracy. We’re a republic. You’ve heard that a thousand times. That actually comes from the nineteen fifties and the John Birch Society that is trying to establish that it does not want the idea of expanded voter rights and they don’t want the idea of expanded voter rights, in part because that means African-Americans are going to be voting. So it’s partly racial, but it’s also partly because we have this weird thing in America after the eighteen sixties that if you let African-Americans vote, what you are essentially doing is embracing socialism or communism, because what happened during the Civil War was that the Republican Party both invented America’s first national taxes, including an income tax, and they expanded suffrage. So going into reconstruction, there was this construction coming out of former confederates that they didn’t actually mind black people voting, which was ridiculous. Of course they did. But what they really were trying to do was prevent poor people from voting because poor people were going to redistribute wealth. And that would itself be a form of what they called at the time, socialism or after eighteen seventy one, when in Paris, the communards take over the city of Paris and create their own new kind of government there, that it is some form of communism. And that concept in America that socialism or communism is linked to poor people voting, especially poor people of color or women who are asking the federal government to level the playing field between them and white men, that that is somehow socialism or communism has really skewed our political system and our legal system, including what happens in the courts ever since.

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S1: And we’ve now just touched on race, we’ve touched on gender, we’ve touched on class. But I wonder if you can weave religion in for a minute, because I think one of the most astonishing things that is happening right now is that we are in the midst of a profound fracture in this country around religion and who gets to decide and majority religion and minority religion. And it’s, in my view, all held up in stark relief in this Amy Barrett hearing where nobody can even talk about religion. But clearly, there is also tension. I think in there’s a tension between the two provisions, the religious provisions in the First Amendment itself. But I think there’s clearly now a tension in minority majority rule in this country around this question of religion. And I wonder how that tracks back.

S2: OK, so religion gets involved in American politics and the American law really in the in the nineteen sixties for our purposes. But let’s go back for a second and talk about how we got to the moment we’re in right now in terms of the Supreme Court and in terms of American politics. And that again goes back to the idea of democracy, meaning ordinary people versus American democracy, meaning a system in which a few elite men run things for everybody else. And what happens, of course, is after the great crash of the nineteen twenties, Franklin Delano Roosevelt and the Democrats take a look at the American government and they say, hey, we need a new deal for the American people. And they begin to use the government as an active force to level the playing field between ordinary Americans and the elites who’ve been running things. So they begin to regulate business. They provide a basic social safety net. They begin to support and advance infrastructure projects like the Tennessee Valley Authority, and they end up creating a new activist government that tends to level the playing field among economic classes in America. But it really doesn’t touch on racial or gender issues. They nod to it, but they don’t really do a lot with it. Coming out of that, there is this sense that America alone and this is a sense I want to emphasize, America alone is a democracy standing against authoritarian governments, fascism on the one hand for which we just want World War Two, but then the rise of communism as well. So there’s a real problem for Americans who come out of that war embracing democracy and talking about democracy. And people tend to forget that FDR talked a lot about how democracy was a superior system to fascism. He talks about it again and again in his fireside chats over the difference between Italy and America. And then coming out of that, there’s a problem for the American government and, of course, Americans in general, that communist governments take a look at American racial disparities and they say, what’s all this about democracy? They’re just they’re just lying to you that there’s nothing about equality in America. And under Dwight Eisenhower, a Republican president who takes office in nineteen fifty three, selected fifty two thousand fifty three, he appoints a bunch of Republican. To the Supreme Court and those Republicans are going to stand against the racist Southern Democrats who have baked into the New Deal and into American law racial categories. So, of course, he appoints Chief Justice Earl Warren, who had been the Republican governor of California. And Warren begins to use the 14th Amendment to go ahead and to level the racial and soon to be the gendered playing field in America. And that moment when they are using the government to try to erase segregation through the Brown versus Board of Education decision 50 seven, when they are saying that married couples have the right to buy contraception, when they are talking about the right of people to counsel, when they are talking about the right of people to marry across race lines, what they’re doing is they’re using the courts to go ahead and override the segregation and the different systems in the states that have developed such lines between different groups of people. So, of course, there’s a backlash to that. And that backlash is partly religious. To go back to your question, it is partly social for sure. There’s traditional fundamentalists at the time and social traditionalist, but it’s also a huge backlash on the part of big business that doesn’t want to see federal regulation of business. And so from then, of course, we get this political movement known as the movement conservatives who are gradually going to come to take over the Republican Party and eventually our political system, as they have now. But one of the branches in which they do that is through the courts. And part of their attempt to use the courts is articulated really well in nineteen seventy one by Lewis Powell, who is a lawyer for the tobacco industry, and he writes a secret memo to the head of the US Chamber of Commerce in which he says, We have to push back on the government and on the courts that are expanding American rights because they are hemming in what he calls the American free enterprise system. And one of the ways he wants to do that is through the courts. And, of course, we’re going to get the rise then of the concept of originalism, of the related concept of textualism, of the attempt to hem in the use of the courts for protection of the rights of minorities and also to him in voter rights and to him in regulation. But at the same time, that’s a political project. And the problem with the political project is that these things that were listed here, the regulation of business, the expansion of rights, the protection of social welfare, the promotion of infrastructure is actually really popular then and now. So if you are somebody who wants to get rid of business regulation, get rid of the protection of minorities and their inclusion in a larger society, which is going to cost tax dollars, how are you going to do that? Well, you’ve got to either get a lot of voters on your team and they couldn’t do that. They gave up on that project because Americans like the system or you can induce new people to join your coalition. And by the time of the Reagan administration in the nineteen eighties, that’s precisely what Reagan and his supporters do, is they make a huge plea to get evangelicals and traditional religious figures into this project. And it’s a really dramatic change because as late as 1970, the major church organizations in the country, including the Southern Baptists, actually supported reproductive rights. So you’ve got here you’re talking about the problem in the courts right now of religion, but that is really very much a reflection of the political project. They are designed to roll back the changes of the New Deal and, of course, the Warren Court and then the Burger Court. Warren Burger was appointed by Nixon in the nineteen seventies, and they’re the ones who passed Roe v. Wade. The objection to Roe v. Wade actually doesn’t come after Roe. It comes before Roe. That’s a political project immediately after the midterm elections of nineteen seventy to try and move Democratic Catholics into Nixon’s column before nineteen seventy two.

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S1: We had Elise Hoegh from there on the show, on the last show, explaining really clearly that the move from having religious objectors to Brown, which is really complicated, segway into religious objectors to abortion. Was the effort exactly what you’re describing, Heather, of lashing yourself to something that you can people will get behind? And when you can’t say I just have as a religious principle that is anathema to me to desegregate my school, it’s a lot easier to say. It is anathema to me to kill babies. And that’s kind of the move that happens there. And that’s when it takes off to things that you’re saying that are so important. I just want to underline one is that I think Americans, particularly progressive Americans, kind of hit the snooze button after Brown and Roe sort of said, hey, the court is essentially a progressive enterprise and is advancing this vision of democracy that you lay out, you know, equality and making sure everyone prospers and a little thumb on the scale to make sure that it’s fair for everyone. That actually has not been in a descriptive language that you can use about the Supreme Court. Certainly in the 20 years I’ve been covering the court. I mean, that’s not Bush v. Gore. That’s not John Roberts. That’s certainly not Shelby County or any of the chip chip chip erosion that we’ve seen. And this is the reason I wanted to talk to you on voting itself, that this is a court that at least since Bush v. Gore, but certainly since Shelby County striking down part of the Voting Rights Act, certainly when it blessed voter roll purges in Ohio. This is a court that isn’t just about, quote unquote, conservative legal ends, as you describe it. Right. The Powell memo and evangelical Christians and privileging big business and all that. This is now about all out voter suppression in a way that I think most progressives, if I said that sentence is Sheldon Whitehouse was trying to do a version of this last week at the hearings with his whiteboard that everybody, just including people that are very smart, would just like that. Now, what’s he talking about? But that’s the story, is that it has talked from a conservative legal project to now we have to make sure that not everybody gets to the polls.

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S2: Well, yes. And and this is, I think, where I was trying to start is that the court itself is fascinating and legal decisions are fascinating. But in America, legal decisions and the court have always been a reflection of what our democratic project is. So one of the things you just talked about there about religious objections to Brown v. Board and religious objections to Roe v. Wade, part of the religious objections to Brown v. Board. In fact, a significant part of that is an objection to communism, which, again, I just sounded like that came out of the blue, did not. But but if you think about the way that the concept of communism was constructed during the Cold War, communists were godless. They were atheists. I mean, you saw this as late as Reagan talking about the evil empire, which he did say in a speech to evangelicals in Florida, you know, this idea that somehow if you permit people at the bottom of society and in America, those were defined because of our weird history of reconstruction as black voters, although cautioned that that should include brown voters. It’s going to be immediately after World War Two. It’s actually going to be Dr. Hector Garcia and the American GI Movement, a group of Hispanic voters who are going to really push the boundaries of voting first. And we tend to read that of our history because we tend to focus on African-Americans. But this idea that somehow letting people of color and later on women who want to be something other than wives and mothers is going to create a government that is going to permit poor people essentially to vote for policies that are going to cost tax dollars. And during reconstruction, by definition, people who had money to pay taxes were people with property and were white, because in that period, if you were an African-American, you couldn’t have property before the end of human enslavement. So we have this weird thing after the eighteen sixties where if the democracy permits widespread voting, it has this link to this concept of communism. And that link to the concept of communism is also a link after World War Two to the idea of godless communism. And so you have this, again, this really weird sort of political construction that if you let people vote in America in certain political moments, we’re in one now. It’s not always this way. And if you’re interested, I can talk about the times. It’s not. But we are in a political moment right now where there is a significant portion of the country and a lot of unfortunate. The Supreme Court that thinks if you let people vote, especially people of color and women vote, they are going to destroy America by voting in socialism or communism and that they are also godless. So I guess what I’m trying to point to here is the idea that the current Supreme Court, with its emphasis on an originalism, that itself comes after the Powell memo and that is really embraced by the construction of the Federalist Society in nineteen eighty two, that that itself is a political project. I mean, it’s all couched up in this. Oh, we’ve got this great theory. But if you actually read the theory coming from Justice Antonin Scalia and people like that, it’s really kind of started up political project rather than a coherent judicial ideology. You could make a very interesting judicial ideology based on original concepts of democracy and the relationship between states and the federal government. They’re not doing it. They’re part of a political project.

S1: And before we leave the structural question of minority rule, I think I want to ask I have been saying for probably three years now that there is clearly a design flaw when you have gerrymandered legislative districts that are not apportioned one person, one vote, then you have a wildly malapportioned Senate in which if you’re in California or Wyoming, you have the same amount of representation and then you have a president who did not win the majority of the vote. So it seems as though the entire structure is existing to preserve minority rule. And I know, as you’ve said, that’s not always been the case. And we can talk about that. But then larded up over that. Now you have a Supreme Court that is five justices appointed by a minority majority president. It just feels as though unless I’m missing something, this is a profound design flaw where there is no way that you’re going to have anything close to majority rule because it feels as though, at least in this moment, every branch of government has been designed to suppress majority will. I know I’m wrong somewhere in there, but that’s certainly the moment we seem to be in right now.

S2: The only place Jurong is in the word design, the system itself is not necessarily baked to do that. And I’m hitting here again on the idea of a political project. We are absolutely in a moment when we have gotten to a place where we have minority rule and it is baked into the system that we currently have. But the system itself doesn’t have to do that. And there are times when it has not. But one of the things that that has happened at least three times in American history is we go from a period where there is a focus on equality and on rights. And when that happens, when people, ordinary people start to have political power, they do, in fact, guarantee that they retain more of the value that they produce. And they want they want what they have done. They don’t want what anybody else has done, but they actually want what they have produced. And when that happens, the people who have tended to be able to accumulate wealth into their own hands start to worry that they are going to lose that power. And they’re very really quite articulate about this. In the 19th century, we’ve got people like James Henry Hamilton in 1858 giving a speech in front of the Senate in which he says, listen, the way this country should work is that the vast majority of people are kind of dumb and they’re kind of dull and they’re hard workers and they make a lot of money. I’m not making this up. By the way. He actually calls them Mud Sill’s, which is the part of the wood that gets hammered into the dirt to support a plantation home, which is where he lived. It was a South Carolina senator. And and and those people produce a lot. They work hard. They produce a lot. But the problem is, if you let them keep what they produce, they’re just going to waste it and frittered away on stuff like food. And that’s not going to move society forward. So what you really want to do is let that wealth accumulate at the top. And people like me, he says, are going to go ahead. And we’ve got connections and we have educations and we know how to do things and we will move society forward. And this is obviously the way things should be, because, look, we got beautiful paintings on our walls and God obviously favors us, unlike those people at the bottom of society. And he argues, of course, this point with regard to the African-American neighbors and slaves, but he also that to the north and he says you guys are idiots because you’ve also got this same group of mud, but you let them vote. And if you let them vote, they’re going to ask for more of what they’re producing. And if they do that, they’re going to redistribute wealth. And that means people like us aren’t going to have as much money and we’re not going to be able to move society forward. Andrew Carnegie says something very, very similar in 1890. And obviously you see the same thing. Nowadays, with the concept of makers and takers, and I know only the best people, it’s a way of thinking. It’s a it’s a philosophy itself. But what happens when they begin to fear the idea of widespread voting is in each of the periods that I’m talking about, the eighteen, fifties, the 80s, 90s, and now the present is leaders start to claw back who gets to vote first. They start to suppress the vote either through nowadays making the lines long or in the nineties, having grandfather clauses or understanding clauses in the Constitution or in the fifties making voting dependent on property. Then when even that isn’t enough, they begin to change the media system so that people only get access to their version of the facts. And that happened in all three of the periods I’m talking about. And then they actually start to game the system like they are nowadays, saying, well, we’ll gerrymander the states to the point that you, the Democrats, basically can’t win. So first they start with suppressing the vote, then they start with changing the media landscape, and then they go forward and say, I’m just going to change the way things are. And when even that doesn’t work in all three of the periods I’m talking about, they say, OK, we’re really in trouble now. We better make sure that nobody can change the way the system works by breaking it into the Supreme Court. So in the eighteen fifty show at the tourny court, the Roger Tourny court going ahead and saying we’re just going to go ahead and advance the interests of the elite slaveholders to the courts, even though they absolutely do not have the numbers. They’re are only about one percent of even the southern population, let alone the American population. In the nineties, you have the Melville Fuller court, which has just such contorted decisions that the only ones that have still stood are the insular cases, which I think should be on the table now. Lochner, which says that the state can’t limit workers hours. It’s Plessy v. Ferguson, which is a railroad case. I mean, we look at as a racial case, it’s a railroad case. It’s in Ray Debs is publicly farmers loan saying that the state isn’t strong enough to have an income tax. You know, they try and bake their vision into the Supreme Court. And I will point out that we don’t retain the decisions from the tiny court or the fuller court. And I expect the decisions of the Roberts court will also, in 20 to 30 years, be largely replaced.

S1: So this is actually really why I needed to talk to you today, is because I think we forget and Justice Ginsburg used to always say it’s a pendulum swings back and forth. And I think for an awful lot of folks who listen to this show, this is an apocalyptic once in a lifetime abuse of the levers of government and the court that we’ve never seen before. And what you’re saying is, oh, buddy, no, no, no. This is by capturing the court and getting the court on board with this plan. This is something that happens and it’s corrected. And I guess my question is it’s corrected in some sense by a move back to that first vision of democracy you describe, which is you pass H.R. one, you give statehood to DC in Puerto Rico. You make sure everybody can vote. You do all the things that should have been done. By the way, after Bush v. Gore and the motor voter law to ensure that voting is easy as opposed to difficult. This is correctable. What other big structural changes have to happen to get the pendulum? I think a lot of people want to see the pendulum where it’s going to go. What other big structural reforms happen?

S2: Well, so first of all, to go back to the project of democracy, which I think is really where we need to be, I hear this all the time. This is it. It’s over. We’re done. We’re they’ve got the court. It’s going to be over here. And I just want to put that as an intellectual problem. If we are a democracy, how does a small minority retain power? I mean, what does that look like? And I’m not sort of like being philosophically what does that look like? What does it look like if, in fact, we have a Supreme Court that takes away things that 80 percent of us. What does that mean? We all go, OK, it’s over now. I just don’t see Americans saying, OK, yeah, I’m going to do exactly what the justices say. And a great example of this, of course, is the Dred Scott decision of eighteen fifty seven, which was enormously unpopular for various reasons that I won’t go into here. But but Americans didn’t go. Oh, yeah, that’s right. No, a small minority of Americans went, yeah, that’s right. We’re going to abide by the Supreme Court and the vast majority of Americans would like it happen in here. So the question is, first of all, what is that look like? And I think it’s not sustainable. And this is one of the things I keep hammering on. It is not sustainable for us to have a president who is in power with only a minority of the popular vote. And I think it’s really astonishing where we are right now in America that we have somebody running for re-election who is making no pretense to winning a majority. He is simply trying to game the system, and that’s never happened before, and that’s really important. The Supreme Court is not reflecting where the majority of Americans are. That is not sustainable. Gerrymandering does not reflect where people are. That is not sustainable. The Electoral College doesn’t reflect where people are. That is not sustainable. The Senate does not reflect America. That is not sustainable. So where does the change come from? And the answer to that depends on how you see the world’s eyes. I believe I am an idealist, so I believe that the world changes according to the way people think and the pressure that we put on our representatives, because if we vote them out, the people that we elect to make our laws are going to reflect more what we want them to do. And I think one of the problems that we’ve had since the Warren Court, since the Burger Court and really since the New Deal, a lot of Americans thought our system was done, that we were going to have Social Security, we were going to have Medicare, we were going to have basic protections for minorities, for women. Those things just were there. I remember students saying to me 20 years ago when I talked about attacks on women’s reproductive rights and then saying to me, oh, you’re just an old feminist. These these are never going away. No one’s going to put up with it. And I kind of wish I had the list of those students in front of me to say, shall we talk again? But I think now that Americans recognize that they need to put skin in the game. And every time that I’ve talked about the nineteen fifties and the nineteen sixties, the 80s, 90s and the nineteen aughts and the eighteen 60s and the 70s, what changed the American government was the American people stepping up to the plate and saying, this is what democracy means, this is what we stand for. And I see that happening now.

S1: So as I bring you my worries, help me hold my worries. But as I bring them to you, one of the things I do worry about, you’ve talked around this, but let’s just put it out there is the great American reverence for the court. The court is our secular church. It is designed that way. They shuffle around in black robes for that reason. And even when we see the popularity of the other branches tanking, the court is held in really high esteem and by design, right. That’s the Federalist Papers. Neither the purse nor the sword. We love them. We need them and we believe in them. And amazing piece this week, I think, in New York magazine saying even as we’re seeing a court quite literally being packed to the dismay of Americans, they still love the court. They can’t disaggregate the politicization of the court and the aggressive attempts by the court to distort democracy with this idea that they revere the court. And I don’t say that to say Americans are stupid or, you know, I just think we need that. We need to believe that this third branch of government is oracular and different. And so when I worry and what I think about is I think we are careening into a moment where the court may just hand down some 63 per curiam Bush v. Gore style, something something maybe they won’t even include a reasoning. They haven’t included reasoning all summer on these voter suppression cases. But I think that the court is both the solution and the problem. Heather, I think that we rely on it to solve the moment we’re in. And also because of that deep affection, reliance regard, we’re almost completely unaware of the peril it’s putting the country in. And so I don’t even know what the question is except to say I feel fairly confident that if there is a six three decision saying we’re tossing ballots in Michigan or Pennsylvania and it’s Bush v. Gore one. Right. Only when I’m going to attempt to put this whatever this equal protection argument is in ways that make sense, that there’s a deep fear I have, that the American public will go, yeah, well, that’s the court. That’s what we did in 2000.

S2: Well, it’s probably why I study politics and you study the courts because we’ve had this moment happen before in America. And I disagree. I don’t think Americans will say, oh, yeah, never mind. We’re perfectly happy for the courts to have gone ahead and destroyed something we care a lot about. And I think you can see this with the reaction to the ACA and the idea that it’s going before the courts a week after the election. Americans care a lot about the ACA and they have not paid attention to the courts because for many Americans, it does not seem to really be part of their lives. I mean, you talk about the big Aratula and for sure they are, but they’re also not on the same schedule, anybody else’s. And they seem to deliberate in private. And they’re all six hundred years old. And, you know, no one’s really paying that close attention. And I think they are paying attention now. And I don’t think I don’t think that you can divorce the reaction to the court from the reaction to what seems to be the machinations of Republicans across the country to go ahead and stay in. Even though they are so radically unpopular right now, I think a bigger concern for me is that and I actually think this is probably a concern of Chief Justice Roberts as well, is that respect for the court and the idea that if they pull stuff that is too out there, the standing of the court is going to fail. And if the standing of the court fails, that puts us into a real problem. I think we could actually game out a lot of what that would look like and a lot of what it might look like in the next 20 years if we do end up trying to repair the holes in our Democratic mechanics. Because, of course, the court has taken on a lot of power that it didn’t used to have. And the court has also gotten quite divorced from the political system. So I believe and correct me if I’m wrong, I believe this is the first Supreme Court that does not have a politician on it. I think Sandra Day O’Connor was the last. And so they are increasingly divorced from what real Americans want in their lives. And I think that’s really going to matter. So I’m a little less I’m a little less concerned than you are about people not caring. I’m certainly concerned about what the court’s going to do, but I think Americans will pay attention to it.

S1: And maybe useful to say, because we think of FDA’s court packing plan as this colossal disaster that almost takes his presidency. But you’d be the first to say actually no, because it although he doesn’t pack the court, it triggers this, you know, a switch in time that saves nine. The court begins to modulate its rabid anti New Deal behavior, which is exactly, I think, what you’re saying about John Roberts. Right, that at some point there is a recognition, holy cow of 80 percent of the American public hates so freaking loudly everything we’re doing, whether or not we talk about court packing the court itself changes. I guess I want to ask you one last question. And I know we’ve been in sort of Mylène, which is the law and the constitution, your language, which is history. I want to talk about this third lane that you wrote a little bit about this in your Friday letter. But I know you think about it all the time. And that is the messaging piece. I think in your Friday letter, you talked about Joe McCarthy and the sort of flooding the zone with I’m going to just say, shit, you know what it means when the messaging apparatus is distorting truth so consistently that people will just glom onto anything that feels true. You mentioned that that’s a piece of the puzzle here, how you get people to vote against their own interests. But I’m not sure I have a prescription for that problem either. And I know it goes to deep questions about Fox News and it about, you know, Sinclair Broadcasting and the fact that many, many, many, many Americans get all their news from Facebook. Well, they get your news from Facebook, too. So it’s, again, the solution and the problem. But I wonder if you could just take us out by talking about if this moment in which. It’s a cliche, Heather, to say we live in two universes, there are people who get all their facts from very distorting media sources. Has this happened before? Have we ever been in a situation where foundational truths are so distorted that a big, big proportion of the country doesn’t actually agree on facts?

S2: You’re going to hate me. But yeah, I knew it. I knew it.

S1: You’re going to say those regs, those broadsheets were part of them. Go ahead. You say it.

S2: Well, yeah, because again, you tend to forget, but it’s only really in the late 19th century that we start to see the ability of media to travel across states. So in the eighteen fifties, the news that you’re reading in South Carolina is completely different than the news that you’re reading in Massachusetts. And of course, we had a partisan media at the time as well. We even had in the 90s a version of Fox News, which was the Harrison administration actually bought Frank Leslie’s illustrated newspaper and made it a mouthpiece of the administration secretly. So a lot of people didn’t know that was the case. They kept it only during that administration and then they sold it again. So, yeah, we have been here before. But I think what we are really doing in America and across the world is grappling with what is probably say to my students is the biggest change since fire, and that is the Internet. So we have this new technology that erases boundaries, but also lets us cherry pick where we are. It is a new frontier where anything goes, but also gatekeepers can direct you without you knowing what’s there. It’s a place where entrepreneurs can thrive, but at the same time, people can buy and sell you by adjusting what they advertise to you. And I just don’t think we currently know how to handle that. Do I think that democracy is going to be able to master it? Yes, I do. And I believe it because I believe in the concept of human self-determination with an almost religious belief that we will not put up with being serfs. But I also believe that in a practical sense, if you look at I know it seems like forever, but in the scheme of things, the advent of the Internet is pretty recent and the uses to which it can be put are pretty recent. But if you look nowadays, even at things like Twitter beginning to put alarms on tweets and Facebook beginning to flag certain things. Now, I am certainly not an advocate for either one of those platforms, especially Facebook, I think has done incalculable damage. And by the way, that is precisely why I am there, is because it is my attempt to push back on. That’s where people get their news. So and most respectable, if you will, people won’t be there because it’s such a cesspool. And so it was a terribly underserved group of people. And that’s precisely why I write my best stuff is on Facebook. I make it a big point, give my very best material there, because I respect the people who who get their news there and I want to make sure they have access to good material. So I’m not defending it. Yeah, but what my point is, as a historian, I always say it’s like the Wild West. At first it is completely wild. I mean, there there’s murders and there’s heavy drinking and there’s genocide and there’s whatever you want to put out there because there is a breakdown in law and order when you first rush into a new region, but then you start to get boundaries. And I think what we’re seeing now is the idea of getting some of those guardrails over the Internet. And that’s one of the things we’re going to have to solve. But do I think that we are going to end up in some dystopian world? I really don’t. I do think we’re going to end up in a world that I can’t envision and that really nobody can envision yet because we haven’t built it yet. But one of the things that gives me enormous hope is that for the first time in my lifetime, people are getting involved and caring. You know, I’ve been at this project since nineteen eighty seven and used to be a joke in my family to try and get me wound up about politics because it was so funny because nobody else cared. And now those same people are like, wait a minute, where do I vote, where do I do. And so a lot of people are like, we’re in this terrible moment. I’m like, no, we’re not. We’re beyond the terrible moment. The terrible moment was like in 2000 when people like, er. Yeah, Bush, Gore, who cares? Now people say, hey, I care and I’m showing up for this. And that’s precisely where we have been in the fifties and in the nineties. And even if you will, in the nineteen twenties and out of all those moments we got a reborn faith in democracy and in equality before the law and equality of access to resources. And at my age, I just kind of hold onto the hope we’re going to do it again.

S1: Heather, one of the things that I have loved as a slavish reader of your letters is that I do think you always manage to walk the line, but. Telling people simultaneously, nobody’s coming to save you, you’re going to you know, it’s not going to be Muehler, it’s not going to be Ruth Bader Ginsburg, like you got to do it. But also, if you do it, we could change everything. And I think that that really is it’s sort of the be fearful, be worried. It’s a little grim and also be powerful because I think that we forget we forget that that really is like the greatest superpower we have is to not get rattled or freaked out or paralyzed, but to just step in and do our thing. So I just want to thank you so very much for joining us. Heather Cox Richardson is a professor of history at Boston College. She’s the author of six books about American politics. And she began writing her daily letters to an American in twenty nineteen. She has ridiculous numbers of subscribers, including my husband and myself. And you should to Heather, thank you so very, very, very much. I know you were up all night with the debate, so thank you very much for taking time to help both come down and round me up in equal measure. Well, that’s kind of the plan, but it’s a great pleasure to be here.

S2: And you keep doing what you’re doing, too. I’m a huge fan of everything you’re doing and describing the courts and what happens. You’re the first person I go to every single time something happens over there and a lot of stuff seems to be happening lately and it will keep on happening.

S1: Thank you for being with us. Let’s on the flip side, when this is all over, have a calm, tranquil conversation about what comes next. This brings us to everybody’s favorite part of the show, which is our check in for Slate plus only with Mark Joseph Stern. So here we are. Mark covers the courts and the law and the Supreme Court and the state courts and most importantly right now, election law tirelessly for Slate. So, Mark, welcome back. Thank you. And this is our special thanks to our Slate plus members, because without you, we couldn’t do any of this. So thank you. Thank you for the work you help us do. Thank you. And Mark, I want to just jump right in because as I said, you have been the one who, like me, is kind of watching the debates and kind of watching the polls, but is well aware that this election may well be decided in that third secretive branch of government that we like to call the courts. And this has been a rather terrible week on that front, correct?

S4: Yes, that is absolutely correct. It has been a rotten week at the Supreme Court, even though the court handed Democrats what appeared to be a victory, as we will discuss, it was a Pyrrhic one at best. And it’s basically suggests that we’re in for a lot of doom and gloom for probably the rest of our lives over at the Supreme Court.

S1: Mark, outstanding, lifelong. You heard it here first, Mark. We have a lot to talk about, but I wonder if we can talk just for a moment about the Fifth Circuit and Indecisions. I know we talked about one the last time you and I spoke of doing away with drop boxes, but then also newly about just tossing ballots.

S4: Yeah. So earlier, five Republican appointed judges on the 5th Circuit. Can we just call them Republican judges? Now, at this stage, I mean, it’s November 20, 20. Like, let’s just let’s just take the mask off, so to speak. Keep your masks on the actual ones. Three Republican judges allowed the governor of Texas to remove a ton of ballot drop boxes that were extremely popular and allowed each county in Texas to have just one Dropbox, which is a huge problem because, of course, there’s all kinds of USPS delays these days. The postmaster seems to be slowing down the mail. People want to make sure their ballots are counted. But some Texas counties have like five people. Some of them have like millions and millions. And those counties that have millions of people, all those folks are now going to have to wait in line for the one ballot, Dropbox, which is voter suppression. And yet the Republican judges on the 5th Circuit claimed in a rather Orwellian move that the governor had actually expanded the right to vote. More recently this week, the three Republican judges on the 5th Circuit said that it was totally OK for Texas to throw away mail in ballots that had some kind of alleged technical deficiency, even something like a signature mismatch. Election officials totally untrained in handwriting analysis, claiming that two of your signatures don’t perfectly align. The state can throw away those ballots and it doesn’t have to tell you and it doesn’t have to give you an opportunity to fix them. So basically, everybody who votes by mail in Texas, well, nice idea. It may work. It may not. Your fate is in the hands of totally unaccountable election bureaucrats who have absolute power to nullify your vote.

S1: If they so choose, OK, and Texas is not the only place where this is happening, I suppose it’s no accident that we are seeing these cases or I think we’ve talked about this before. I think there’s more than 300 now election law cases going on in forty six states. It is no accident that the money is being poured into Texas and Pennsylvania and Wisconsin. Right. All the states that are going to be within the margin of litigation. But then the Supreme Court gets in the action. As you noted, up top, everybody was super happy initially when the court intervened in a Pennsylvania lawsuit. But tell us why that really is a Pyrrhic victory.

S4: Well, because it was a four four split with the chief justice joining the liberals. And I guess we’re going to have to start calling Roberts like a liberal justice now just in comparison to his ultra conservative colleagues. So, look, the Supreme Court allowed Pennsylvania to count ballots that are received up to three days after Election Day so long as they’re mailed by Election Day. OK, that’s the good news. And that’s why Democrats are celebrating. But like I said, it was a four four vote, which means that the four ultraconservatives, Thomas, Alito, Gorsuch, Kavanaugh, all voted to prevent Pennsylvania from counting those ballots. Now, why is this a big deal? Why is it terrible news? Because this is not the normal election case that we talk about on the show. The normal election case, a federal district court comes in and says we’re going to block this voter suppression law. And appeals court either gives it a thumbs up or thumbs down. And then the Supreme Court comes in and consistently says voter suppression is OK. Right. This case is totally different because it was all in Pennsylvania state courts. All of the action was at the Pennsylvania Supreme Court. The Pennsylvania Supreme Court basically had to decide between two conflicting rules. There is a statute that says ballots can only be counted if they’re received by Election Day. But there is a constitutional provision in the Pennsylvania Constitution that provides for free and equal elections and guarantees that all voters ballots should be counted. And so the Pennsylvania Supreme Court says, look, to kind of harmonize these rules, to make sure that all all votes are counted, we’re going to extend the ballot deadline. Those that are received within three days of the election, they’re going to be counted unless it turns out they were mailed after the election. Right. Seems like a pretty straightforward, simple rule. Right. Like this doesn’t sound very radical to me. Does it sound radical to you? It does not. OK, good, because lots of other states do this. OK, 18 states and the District of Columbia count ballots that arrive after Election Day. But for conservative justices wanted to come in and stop the Pennsylvania Supreme Court from interpreting its own state’s constitution to allow this modest expansion of voting rights. What does that mean? It probably means that those four conservatives believe that state courts are powerless to protect voting rights, to enforce their own state constitutions, to ensure that all elections are free and equal. If the legislature is controlled by Republicans and Republicans, scream and kick and shout and say, we do not like voting and we want these ballots to be thrown out. That is extremely troubling because the rule from the American founding up till now is that state supreme courts have total power to interpret their state constitutions. And now it looks like four conservative justices are going to say, well, actually, it’s totally fine when state supreme courts suppress the right to vote. But when state supreme courts expand the right to vote, we’re going to come in and stomp on their faces.

S1: So there are a couple of parts of this that are troubling. And one of them you’ve just said really eloquently, but I want to talk about it. Which is it? This is just hornbook law that state supreme courts have the last word on state law. This is not a complicated notion and this has a lot to do with just the basic division of labor and constitutional checks and balances for the U.S. Supreme Court to Bigfoot in until a state Supreme Court. That its interpretation of its own law is incorrect is, as you say, horrifying. I guess we should flag here. This is what the Supreme Court did in Bush v. Gore.

S4: Well, it’s what three conservative justices wanted to do in Bush v. Gore. Right. But ultimately, Kennedy and O’Connor, no flaming liberals couldn’t bring themselves to sign on to that because it went too far for them. That’s why they concocted this ridiculous equal protection, equal dignity, a voter’s rationale that they then said, by the way, never use this again because it’s B.S. We just made it up for this case.

S1: But I think it’s also really interesting that when John Roberts signs his name to Shelby County, eviscerating the heart of the Voting Rights Act, his predicate is all states have. Dignity. We have to really we have to honor the dignity of the states, and it is astounding to me that we had three justices, as you say, in Bush v. Gore and apparently for today and maybe next week five, who think that the dignity of the state somehow stops when the state Supreme Court, as you says, makes a proclamation about state voting law in order to expand the franchise.

S4: Right, exactly. Because they interpret this constitutional provision more narrowly than the court ever has before. This totally goes against all precedent. The Constitution says that the legislature gets to regulate elections. OK, fine. But, you know, the legislature played a role in passing Pennsylvania’s constitution, right? The legislature passes a law, but the state courts have to interpret it. The courts aren’t usurping power from the legislature. They’re just trying to balance the laws on the books that have been passed with the aid of the legislature. So it seems like what these four conservative justices and maybe soon five are really trying to do is overrule state law based on their own subjective sense of how state courts should have interpreted that law. And just if I can give one more example of this. Right. So we have a very similar case in North Carolina right now that is probably going to reach the Supreme Court after Amy Koni Barrett has joined, which is absolutely terrifying. And it’s a really similar situation. Right. So the the legislature says, OK, we’re going to count ballots that are received up to three days after Election Day. But if there’s a natural disaster, the state elections board can extend that deadline. OK, so the state election board comes in and says we’ve you covid as a natural disaster, which is not strange or unusual at all. It’s been deemed a natural disaster for all kinds of legal purposes right now. So the board says we’re going to extend this deadline to nine days after the election. And three conservative judges on the 4th Circuit claimed that that was unconstitutional for a state board of elections to exercise the power delegated to it explicitly by a state legislature to modestly expand the right to vote. Three conservative justices on the 4th Circuit said that that was unconstitutional and said even though they weren’t in the majority, said you need to take this up to the Supreme Court, North Carolina legislature, because we think that the legislative intent has been trampled upon and the state board of elections is out of control. And that is such an egregious affront to federalism, such a disgusting infringement on really core principles of state sovereignty, that it absolutely boggles my mind to read conservative judges espousing it. I mean, this is the kind of shitting on state sovereignty that you wouldn’t even see from the most flaming liberal in the entire federal judiciary coming from the mouths and pens of conservative judges.

S1: Right. I mean, this is exactly what you just said. O’Connor and Kennedy could not even hold their nose and crap on states. And yet here we have joyful 4th Circuit judges doing the same. I wonder if we can talk about Alabama for one quick second in our tour of gross overreach, because this is another case, I think, this week. Again, if you’re not clocking these cases the way Mark is, that’s why Mark is here. But essentially, Alabama voters being told like voting should be almost impossible. That’s what God wanted.

S5: Yeah. Yeah. So Alabama. Oh, Alabama. So Alabama’s secretary of state, who is a notorious voter suppressor who claim that civil rights icons would want it to be hard to vote today.

S6: He’s a white guy. He fabricated a rule out of thin air that nobody could vote by curbside in Alabama so there would be no curbside voting. Let’s be clear about what curbside voting is, a super common practice endorsed by the federal government itself, actually, where instead of having to go into the polls, the poll workers come out to you, to your car and make sure that you don’t have to interact too closely with anybody else. You keep the windows down, you fill out your ballot privately, you give it back. No problem. Right. Easy. It’s been done many times before, but Alabama and its covid, it’s an old people.

S5: Old people don’t want to get covered. Old people don’t want to die. They want to live to their grandchildren’s experts. They want to be able to see their kids again. OK, old people want to be able to vote in their cars, give them this Alabama but no, because it’s Alabama. So the secretary of state makes up this ban and says counties absolutely cannot allow curbside voting. So a federal judge comes in and says that violates the Americans with disabilities.

S6: You are denying disabled people equal access to the ballot to basic civic participation. A federal appeals court upholds that order and says, look, all he all Obama has to do is allow individual counties to offer curbside voting if they want. So it’s not a mandate, right? Any county that doesn’t want it doesn’t have to do it. But there’s a couple of counties that have said they’re ready, willing and able to do it and Alabama’s got to let them operate. That goes up to the Supreme Court. And guess what? By a five. A three vote, not even explaining the reasoning a little bit, the conservatives shut it down, including John Roberts, this time joining with the four horsemen to say, actually, it’s totally fine for Alabama to make up a ban on curbside voting and forbid it throughout the state. So, frankly, that’s the kind of awful ruling that we’re used to. It alarms me. It disgusts me, but it doesn’t frighten me quite as much as the Pennsylvania North Carolina cases, because at least in those cases, you have the state trying to do the right thing and then you have the courts coming in and saying, no, you’re not allowed to do this. In the Alabama case, the state is doing the wrong thing and the courts are just letting it suppress votes. That’s bad, but it’s not as awful as the phase that we are probably going to enter in election law as soon as Amy Connie Barrett is confirmed.

S1: And I think it’s worth saying this outright. You’ve said it, but let’s say it again, because these Supreme Court decisions, both in Pennsylvania, we’ve seen this all summer happen on the shadow docket. We don’t have reasoning. And as you noted in your piece about the four four split in Pennsylvania, Mark, that means we have to guess which of the alternate arguments was being. We don’t even know what the court was deciding. We simply have a vote count. We don’t know what the rationale was.

S5: It’s a terrible look for the court. It’s terrible for the development of the law. Right. One of the other arguments presented in the Pennsylvania case is that it’s actually illegal for any state to count ballots that are received after Election Day, which is a frivolous argument. But, hey, we don’t know if the four conservatives also supported that right before ultraconservatives. And so there’s a possibility that four justices on the Supreme Court right now think that laws in 18 states and D.C. that allow the counting of late ballots are illegal. And we just don’t know because it’s all done on the shadow docket. We have to guess we have the Supreme Court making substantive rules of election law, really important ones that affects all of us without explaining their reasoning in late night orders that few people really pay attention to because the court is not acting like a court. These judges are not acting like judges. They are not providing us their reasoning and analysis. They’re acting like a super legislature. That’s just another veto point for voting rights, which I’m pretty sure is not what the founding fathers intended supposed to be.

S1: And I think it’s worth also saying they’re signaling. Right? They’re calling out signals to litigants, to the Trump campaign, to the Republican Party, saying these are the kinds of suits we might be willing to invite. And it’s not just that we don’t know, as you say, what substantive law was established on Monday night when the court handed down that forfour order. But it certainly seems to say let a thousand flowers bloom, bring your kooky arguments. We will certainly be open to them. And I think that that level of indeterminacy with less than two weeks to go before the election is really destabilizing.

S4: Absolutely.

S5: It’s terrifying to see an action because Republicans certainly get the message and they have already brought another case in Pennsylvania that basically presents the same argument because they hope it will get to the Supreme Court after Amy Barrett is confirmed. Right. And they think they’ll get that fifth vote to prevent Pennsylvania from enforcing its own constitution and counting ballots that arrive late. So I agree this is the kind of strategy that I think John Roberts shied away from over the last few years where you saw Roberts casting strategic votes as a sort of signal to the conservative legal movement, saying, this is where I draw the line. I’m thinking King v. Burwell. Right. Obamacare subsidies. Not going to the census case, of course, to some degree, the ACA case. Right. He’s not going to sign off on this extremely sloppy lawyering or these radical theories that would entrench Republican power against the will of voters or the Democratic will more broadly. And Roberts is now in the minority or he’s about to be in the minority because Amy Barrett will join the four horsemen and starts kind of establishing the Federalist Society party line as the law of the land, maybe within hours or days of her joining that court.

S1: And I want to end with the Federalist Society, Mark, because Rickerson and I wrote a piece at the start of the week saying it’s weird that Leonard Leo and Carrie Severino and some of the people who’ve been the winners, Waldo’s of the conservative legal movement and the big money behind the conservative legal movement suddenly are getting themselves involved in these lawsuits. Suddenly, Leonard Leo is nowhere to be seen in the Federalist Society, but he’s popped up finding ways to channel more dark money to really, as you said, egregiously frivolous suits that. Mostly serve to grind down election officials who are trying their best under covid hard circumstances to make elections functional.

S6: So I just and I should just say, like Leonard, Leo’s voter suppression group is actively spreading disinformation. Right, about voter fraud, about voting rights. It is trying to sow doubts about the legitimacy of this election and this vote clearly teeing up a challenge to the results. And Federalist Society members are nowhere to be found. When you talk about this, you’re not going to see them criticizing Leonard Leo on Twitter. You’re not going to see them condemning him in any kind of speeches or articles, because this is what the Federalist Society has built. This is an integral part of the well-run machine. That is the kind of broader Federalist Society framework that includes the Judicial Crisis Network. Carrie Severino, all of the billionaires and dark money front groups and shell companies that are used to funnel hundreds of millions of dollars into the fight for conservative judges and against voting rights.

S1: And let’s just say it outright, because I think you and I are trying to draw attention to this, that when the Federalist Society, even last week styles itself as a convivial debate society that’s just bouncing around ideas so that conservative legal arguments are surfaced in law school and young minds can have both sides of the story. When you’re overtly or when your former leadership are overtly working in the states to bring votes, oppressive litigation, you’re just not a debate society anymore. Some like just say it out loud with me. And yet, as you say, no ownership of that fact.

S5: Absolutely no. They’ll say, oh, Leonard, Leo, he’s not part of the Federalist Society anymore. You know, he took a leave of absence or the Federalist Society is just a debate club. All this stuff is separate. Well, it’s funded by the same people and it’s run by a lot of the same dudes. And I think that we’re a little bit smarter and not quite naive enough to buy the really kind of offensive gaslighting the Federalist Society members are engaged in right now to claim that the men, the men who built up this entire network, the donors who are funding it, that all of them who created the Federalist Society, who are now suppressing votes have nothing to do with the debate club.

S6: That is our glorious fetlock.

S1: Let’s end at Bush v. Gore, if we might, Mark, because we sort of started there. And I feel as though all of our listeners probably at this point get the sense that you and I are not 100 percent confident that we know the winner. We hope we know the winner on November 3rd, November 4th, November 10th, but that there will be litigation, the margins are massive and that the litigation, as you and I think are agreeing, is going to be sewn in ground. That has been really, really carefully tilled over the past summer to suppress votes and not to broaden the franchise. When we talk about Bush v. Gore, I want to just be really clear that that was meant to be the Supreme Court’s good for one, right. Only 2000 thing. It’s been cited once by Clarence Thomas in a dissent. It’s not meant to be binding law. Boy, is it popping up in the litigation. I mean, they’re citing Bush v. Gore as though that equal protection principle that you opened with, as though that is somehow established precedent as though it’s real.

S7: And you saw this in the North Carolina case, and those three conservative judges supported this argument that somehow by just extending the ballot deadline a little bit, that the Board of Elections was violating Bush v. Gore by infringing on voters equal protection, their equal opportunity to cast ballots, not a principle enforced by the Supreme Court since the moment Bush v. Gore came down, not one like you said that any of the justices even speak of. I mean, the truth is, you really can’t find anyone today who will, with a straight face, defend the decision in Bush v. Gore on the merits. Right. That equal protection holding was so obviously ridiculous. The idea that, oh, these the recount was being done in too many different ways, that it was violating voter’s equal dignity, was so stupid on its face that you didn’t see it cropping up until now until Republican election lawyer Amy CONI buried in the offing and say maybe this is our shots. Let’s turn this to get good for one right only into the actual law of the land and screw over Democrats forever.

S1: And let’s just end on the happy note that three sitting members of the U.S. Supreme Court, once Barrett is elevated, will have worked on the Bush team for the Florida recount. That’s amazing. Good fortune for random election lawyers, really. It’s incredible. So, Mark, Joseph Stern, always a delight, even when you’re apocalyptic and gloomy. Thank you very, very much for joining us this week, Mark. Joseph Stern covers the courts, the law, LGBTQ issues, voting, all the things for us at Slate. Mark, thank you very much. Have a good weekend.

S7: Thank you. I hope you are able to sleep at least one hour at night.

S1: That’s what we’re shooting for. That and the vodka. Thanks, Mark.

S3: And that is a wrap for this off week on week, I can’t remember episode of Amicus, thank you so much for listening along and thank you so very much for your letters and your questions. You can always keep in touch at Amicus, at Slate, Dotcom. You can find us at Facebook dot com amicus podcast. We love your questions and we’re trying to figure out what it is we should keep covering. So keep them coming. Today’s show was produced by Sara Bermingham. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate podcasts. We will be back with another episode of Amicus sooner than any of us could believe. Please subscribe. Hang on in there. Take good care of yourselves.