Protecting Democracy in a Pandemic
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S2: Hi and welcome to Amicus. This is Slate’s podcast about the courts and the law and the Supreme Court and the rule of law and the Supreme Court, which is not really hearing arguments right now. But Slate Plus members, stick around. There will be a roundup of jurisprudential goings on with the courts and we’ll do it with Mark Joseph Stern. If you’re not a slate plus member yet, you are going to want to check it out. I think with a free two week trial at Slate dot com slash amicus. Plus, needless to say, it’s a great way to support the work we’re doing here at the magazine. We are podcasting these days from wherever we are sheltering in place, which makes me super grateful. And so a shout out to the producers and our guests and the engineers and yes, our ad people who are working doubly hard to bring us out to you where you are hopefully sheltering in your own place, taking precautions, washing your hands a lot, and you’re probably full of questions. Swell. Full of questions is what we try to do best. So this week, we wanted to talk to an old friend of this podcast, Ian Bassan, in served as associate White House counsel from 2009 till 2011. And he is co-founder of Protect Democracy Cross Ideological Project that has used litigation and policy advocacy in a whole range of civic action tools to protect core democratic values in the era of Donald Trump. In many, many ways, all of these lawsuits and other efforts have really served as bulwarks against attacks on encroachments, on basic democracy. And in his visits to our show, IANS always been a clarion voice of about equal parts, alarm and reassurance. And in many ways, he’s where I go to find my set point when I’m feeling destabilised.
S3: So as we enter this first really awful few days of coronavirus and everyone is anxious and we’ve been thinking about this tension between the need for strong federal measures and the ways in which the Trump administration has always been pretty opportunistic to use power to erode democracy way before this emergency happened and how we balance that tension between needing strong federal action and not entirely trusting the federal actors. Well, that’s one of the things we wanted to pick through and in. As ever, your voice always, always helps me kind of find my set point. So welcome back to the show.
S4: Thank you for having me. And so it’s a good moment to be with community as we all need to be community right now.
S3: Okay. So let’s if we could even start right where I just began. And that is, look, in countries with fewer constitutional protections, we have seen this virus contained with measures that would probably horrify us in the United States. We’re seeing clamping down on free speech in Hungary. We’re seeing lockdowns in Italy that probably violate their constitution. We’re seeing the Israeli government shut down its own parliament. The use of domestic government’s surveillance apparatus there to monitor quarantine’s, to monitor temperatures and seeing domestic use of the military. And some of these measures are probably effective in stopping the spread. We know they are. But as Anne Applebaum cautioned in the Atlantic this week, some of those measures are really just opportunistic moves by authoritarians. So what do we do when we actually do want the federal government to take strong, decisive, very, very draconian action? But we just don’t trust it with our civil liberties.
S4: I mean, I think the first thing that we need to remember is that of the countries that have had successful responses to the virus. They’re not all authoritarian. Right. There are democratic countries, South Korea, places like Taiwan that are more democratic, that have been very effective in their response. So the first thing we need to do is dispense with this notion that only authoritarian countries are only authoritarian measures can meet the moment. That’s clearly not true. The second thing we need to remember, and this is something that we were reminded of after 9/11 is that our Constitution doesn’t have special provisions in it for emergencies. That’s true. And in some constitutions around the world, ours does. And why is that? Because our founders designed the Constitution to be effective even in a moment of emergency. It is designed to protect our rights, our system of government, even at a moment of great strain. And so I think in part due the answer, your question lay in the way you framed the question yourself, which was in countries with fewer constitutional norms and freedoms. We’ve seen things that are horrific. Well, we’re not one of those countries, right? Thankfully, we are a country with constitutional norms, with constitutional guarantees and with congressional freedoms. And so we need to lean on them heavily here in this way. We absolutely need the government to do certain things that are relatively extreme, the social distancing shelter in place, measures that we are seeing and frankly should be seeing in more parts of the country. We need the government to be doing those things, but we need them to do it consistent with two things law and facts. And we have a legal regime in this country of a constitution, this country that absolutely provides for the ability for the government to do that. In facts, we need the government to be doing it based on real data, real facts, real expertise, and making sure that it is making its case to the public of why it’s doing those things on the basis of facts. I think Governor Cuomo has been doing that in New York. I think Governor Newsom has been doing that in California. I think Governor DeWine has been doing that in Ohio. And we really saw a nice response from Governor Abbott in Texas saying that he was gonna be making his decision based on physicians and science and facts. And I think if we rely on those things, they can help us respond to this in a way that is democratic and in a way that is consistent with our constitution, our laws and our system of government.
S3: Part of the problem in and I just need you to help me think this through is that when you’re looking forward, it’s awfully hard to know what is appropriate. And then obviously when you look back, we are very good at saying, well, this was wildly inappropriate. So when you talk about presidents and emergency powers, you know, we could have had this very conversation right after 9/11 or after the bombing of Pearl Harbor or after the suspension of habeas corpus. I mean, we always see our government overreacting because they cannot predict what is appropriate, because taking very, very extreme measures that are not tailored to the facts and the law feels good and everybody rallies behind those measures. And so in the rearview mirror, hey, certainly a bad idea to intern the Japanese after Pearl Harbor. Certainly a bad idea to just sign off on the Patriot Act. That was a a wish list of all kinds of surveillance powers. But how do you do that in real time, even when you can’t predict what’s coming and where people are scared and they want to surrender all sorts of civil liberties because it makes them feel good?
S5: Yeah, I mean, it’s it’s in these moments that the systems we have in place, the rules we have in place, the ethics that we have in place need to be relied on and hugged even more closely. And here’s what I mean by that. There is this temptation at moments of crisis and chaos and fear to abandon the way we normally do things right and to make certain shortcuts or exceptions. And that’s the real danger. We don’t have to do that if we stick to the ethics that we’ve got. It should steer us right. And let me give an example of what I mean by that. So you mentioned the internment of the Japanese during World War 2. Really interesting passage in a Supreme Court brief that was filed by the solicitor general’s office during the Obama administration when essentially the federal government apologized for the internment of the Japanese during World War 2.
S6: And one of the things that the federal government revealed in that was that the government, the U.S. government at the time, during World War 2 knew that what it was doing was actually not necessary to protect the national security of the country. And worse, the lawyers in the solicitor general’s office who argued the Korematsu case in the Supreme Court, they also knew that what the government had done in interning the Japanese was actually, by the best estimates of our intelligence services, not necessary. So there was a report from the Office of Naval Intelligence called the Ringle Report, which had come out at the time privately within the government and found that only a small percentage of Japanese Americans posed a potential security threat and that the most dangerous were already known or in custody. And here I’m quoting from the solicitor general’s office brief. But the solicitor general did not inform the court of that report of those findings when it made its argument to defend the internment in the Korematsu case. Why? Because the lawyers in that situation understood that if they revealed that to the court, they would be more likely to lose the case. And so they deprive the court of information. Now, as we lawyers know, as an officer of the court, there are rules against doing that. As an officer of the court, the court expects all lawyers before the court to provide all of the information it has in truthful fashion so that the court has that information to make a decision. So I use that example, because you talk about in hindsight, you know, we can see that that internment was such a tragic and colossal mistake. But when we really drill down on what went wrong, it was that. Lawyers and the government didn’t follow the normal ethics of the profession. Right. And had they followed those and had they disclose that information to the Supreme Court? We very well may have had a different decision at the Supreme Court. And so I think in that lesson, in that example, is what we need to do now, which is don’t abandon the rules that govern us, don’t abandon the rules of professional ethics. One of our advisers that protect democracy is the Yale historian Timothy Snyder wrote a book a couple of years ago called On Tyranny, which was Lessons from the 20th Century on how democratic systems can protect themselves against tyranny. And one of the lessons is it is professional norms. Professional ethics are key in moments of autocratic challenge. And this is an example here where we need everybody, those in the government, those in the private sector, to stick to the ethics of their profession. They can guide us through this crisis.
S3: So let’s walk through an example and if we could for just one second, because I think that what you’re describing is not only a system of norms, but a system of trust. Right. That everybody has bilateral confidence, that everybody else is on the up and up and that norms are being adhered to and everyone is being truthful. So I wonder what we do with, you know, The Washington Post has been reporting that the administration is in, quote, active talks with tech companies about maybe using our cell phones and using our location data to monitor the spread of the virus. And, you know, other countries, as we’ve said, Israel’s done that. Korea, Taiwan. I was just reading you won’t know Harare saying we don’t need that kind of measure, that that is sort of a big brother authoritarian approach that is not necessary because citizens, if you give them information, will abide by norms without having, you know, the threat of the government coming in, arresting you if you walk outside your house. How do you think about this? I mean, how do we frame this question of. There are lots and lots and lots of measures that may even be narrowly tailored as a legal matter to effectuate health outcomes, but that there is a larger trust issue that I think you’re flicking at that is really eroded the more you allow those kinds of measures to be put into place.
S5: I think our institutions need to do more to trust but verify.
S7: And what I mean by that is we have always had a system of overlapping checks and balances where there’s some degree of trust given to representative government, but always verification measures so that we can hold accountable whether it be private sector companies or the executive branch, not just in terms of what they’re doing, but what they’re telling us. And so, for example, Protect Democracy is litigated. A couple of cases recently in which judges asked to actually review documents that the Justice Department was telling the court it didn’t need to review because it could simply take the Justice Department’s word for what was in those documents. And that’s happened in a number of cases recently where judges have said, I don’t actually want to take the government’s word for it. I want to look for myself at what is underlying what the government is telling me. And we interestingly, a decision that came down this past week, a decision in which we actually lost at the district court level in D.C. But in that case decision, Judge Kollar-Kotelly pointed out that she was glad that she had actually reviewed the documents at issue in the case. I’ll take a little bit about the case. This is a case where the former director of the National Security Agency, Admiral Rogers, back in around 2017, it had been reported that he received a phone call from the president where he was basically felt he was being pressured to intervene on the Russia matter and felt that that call was wildly inappropriate. And in fact, his staff members memorialized that phone call in a memo now known as the legit memo, which they said they put in a safe because of how uncomfortable they were about the call and wanted to sort of create a contemporaneous record of it. We have filed a Freedom of Information Act request a lawsuit for that document. We’ve been litigating it for several years. At the end of the day, the judge said that under current precedent in the D.C. Circuit, she did not feel that she could disclose it as a matter of the presidential communications privilege. I think there’s there’s a good chance if we appeal, that the D.C. Circuit may revisit that.
S6: But in the case the Department of Justice had made a bunch of representations to the court about what was in the memo. And in the opinion, the judge said, I’m glad I asked to see the memo myself, because, in fact, the representations were inaccurate. And that is deeply troubling that courts rely all the time on representations of the Department of Justice government of. And in this case, the court said, I feel I would have been misled if I had not looked out at myself. And so there’s just an example of how our institutions can make sure at a moment like this to trust but verify, to ask to go a little step further, to make sure that we as the American public are seeing the truth about what our government is doing, what private sector entities are doing. And that’s a role I think that Congress needs to play as well. The most obvious example is if Dr. Fauci is no longer going to be giving press briefings with the White House rotavirus task force, well, he should be hauled up to the Hill immediately and give briefings to the American people. So there are ways through traditional methods of oversight, congressional or judicial or outlets like whistleblowers. Right. And there’s groups out there like whistleblower aid that provide an really important support for whistleblowers so we can learn what’s happening inside our government. So I think there there are going to be tradeoffs that a democratic society can make in democratic ways between privacy and security and safety. That is the role that citizens play in a democracy is sort of balancing those tradeoffs. The key is they need to be well-informed. We need to have mechanisms for checking the facts and we need to have mechanisms for holding the line on individual rights through our courts so that the tyranny of the majority cannot overwhelm and override the legitimate constitutional rights of individuals or groups that don’t have majority in power in our society. And again, this all goes back to we have the tools to deal with this. We have the system of government to deal with us. The things we need to be really on the lookout for are when people are trying to change those rules. Right. So you saw that in Hungary with Viktor Orban trying to basically give himself essentially dictatorial powers during the current crisis. And one has to imagine he will keep those afterwards in Israel with with the sort of suspending of parliament. It’s those extra ordinary measures that we need to be really, really suspicious of and fight back on.
S8: And just to that latter point, it’s probably worth emphasizing those powers don’t often get ratcheted back post exigent problem. Right. So a lot of the powers, things like that that were alarming in the Patriot Act when we first saw it, they dont dissolve. And unless Congress agrees to dissolve them and a lot of the fears we have about authoritarian power grabs in emergencies is they hold on to those powers long after the emergency is passed.
S7: That’s exactly right. Anne Applebaum has a piece in the Atlantic about this, that it’s these crises that are moments that autocrats seize power in. You started this podcast by talking about the fact that we don’t really have a normal United States president in office right now. We don’t have a normal U.S. government. We have a very autocratic one that is supported by a party that has basically abdicated its duties in order to enable a president who is autocratic. So we need to be especially careful at a moment like this. And one possible ray of hope, you know, you mentioned that I tried to bring some hope into these, is that there is an effort afoot on the Hill to rein in emergency powers that have been granted to the executive branch by statute. So Senator Mike Lee, a Republican from Utah, has introduced something called the Article One Act, which would really rebalance the powers that Congress for way too long has delegated to the executive to use in the case of emergencies. So the Article One Act would essentially reform the National Emergencies Act to create essentially a sunset provision that any time a president tried to use certain emergency powers, that would be automatically for a short term unless Congress explicitly and affirmatively move to authorize it and extend it. It would create an automatic sunset provision on the use of emergency powers. That is a flip from the default way things work now, which is that if a president invokes an emergency, in most cases that emergency stays in place until Congress overrides it. So it leaves sort of the default is that the emergency is in place. And the switch that this legislation would make is it would switch the default to the emergency automatically sunsets unless Congress reauthorized it. That is a critical change that we need. There is bipartisan support for it on the Hill. And that’s the kind of change that I think needs to especially be in place at a moment like this, whereas, you know, there’s a real danger of an abuse of even those emergency powers that Congress has granted to the president.
S8: And this is such a this is such a crucial point. And it goes to the heart of what you’ve been trying to do for the last few years, which is work across party lines. It’s important that you just mentioned Senator Mike Lee, very, very, very Republican, sort of staunch libertarian, who also, I think has interests in a lot of areas that dovetail with your own. And I want you to just talk for a little bit about the ways that in a moment where we are so hyper polarized. You’ve tried to sort of find the ways of lashing the interests of Republicans and Democrats together. I know that on the border litigation, that’s been the case. But talk about how you do that in a moment where there is so little trust between the parties.
S5: I think one thing that I’ve come around to thinking is that we need to somewhat abandon this notion right now of the word bipartisanship. I prefer to really talk about cross ideological coalitions, because right now the truth is the Republican Party as an entity, the national Republican Party is an entity that has really abdicated its duties as being a checking force on the executive. They have enabled an autocratic president in an unbelievably dangerous ways.
S6: That is not true for many, many, many Americans who have quite conservative views on policy and politics and ideology. There is a robust population of conservatives in this country who care deeply about fundamental American values, about the American constitution, about the idea of representative self-government and democracy. And so one thing I just want to frame here is we should really talk about bringing conservatives and liberals together, independents together, and focus less on party identification. Because one thing that you see is the minute somebody who is a Republican joins together in an effort to defend the Constitution from the current autocratic president, they’re immediately sort of cast out of the sort of Republican Party by the president. And so that dynamic of trying to find what is Republicans and Democrats coming together has a bit of a feel of Lucy pulling the football away from Charlie Brown as every time he put something together that is really bipartisan in the sense of the national Republican Party. It’s delegitimised in the eyes of a lot of people, because right now the Republican Party means blind loyalty to President Trump and that. So that’s just one sort of framing point when we talk about bringing conservatives and liberals together. You know, obviously, we’ve done this with respect to emergency powers, not just in bringing a helping to support this cross ideological coalition that involves senators like Senator Lee and other senators and groups that come from the left and right, but also in the litigation. So when the president abused the emergency powers that Congress has granted to the executive in declaring an emergency at the southern border in order to steal money, to build a border wall that Congress had basically explicitly not appropriated, we put together a legal team that ranged from Larry Tribe on the left, the Harvard professor who had represented Al Gore in 2000, and Stu Gerson on the right, who had been one of George H.W. Bush’s top aides and had served as acting attorney general. And then the center right, Niskanen Center. And one of our clients are quite left wing activist group on the border called the Border Network for Human Rights in a case that we brought also on behalf of El Paso County to stop this emergency power grab and in fact, want a nationwide injunction in federal court in Texas, of all places, against it. So that’s just one of the examples. The other one is this past week we helped assemble a cross ideological coalition called the National Task Force on Election Crises that has been meeting for the last 18 months to prepare and anticipate for the possibility of a crisis befalling our election in order to make sure that we had protocols that people from the left and the right could agree on, on how we would survive a moment like that. And lo and behold, sadly, we now have an election crisis before us. We have a public health pandemic that is already impacting the primary elections and is clearly going to have impacts on the general. And we need to be planning now for how we do that. So there are opportunities still to bring together people who might not agree on policy or politics, but really do agree on the fundamental premise underlying our system of government. And I think we need to lean into those opportunities while still not forgiving the really unbelievable dereliction of the national Republican Party in this moment by enabling an autocratic president.
S9: I want to get to elections in a minute, because I know it’s the thing that many, if not most of our listeners are really anxious to hear about. But I want to stay with bipartisanship for a minute. And I want to talk about the Democrats ideology.
S6: Cross ideological.
S2: I’m sorry. Cross ideological. Cross ideological. It’s catchy.
S10: It rolls off the tongue.
S3: And I think I want to ask you this about Democrats in there’s so much infighting right now about whether this is the moment to point fingers. Should we be doing ads saying no? Trump said it was a hoax and he said there was one case and it stopped. And we’re now, I guess, opening the you know, the world will be fine by Easter. Is this the time to be blaming this administration? I mean, you’ve talked about. Republicans elected Republicans. But is this the time to say, look, this is the administration that gutted the pandemic response team at the CDC. This is the administration that shuttered the National Security Council’s biodefense office. This is the administration that pretty much bungled getting tests out. Is now the time or I guess what I’m asking is if we were in a parliamentary system. There is a role for a loyal opposition. What does loyalty look when an awful lot of Democrats want to spend time not unjustified in being really pissed off? How do you do support and loyalty in a pandemic when there’s a lot of blame to go around?
S11: Well, let’s not think about blame. Let’s think about criticism and pivoting to solutions. I can’t think of anything more fundamental to the notion of self-government than the idea that citizens criticize their government when they think the government is doing things wrong. That’s not petty. It’s not divisive. It’s designed to make the government function better. So if if the government is doing something and it is failing at it or it’s going in the wrong direction. Criticism is essential to get the government to go back in the right direction. That was true of criticism of the response to Katrina and trying to get the government to do a better job. It was true of criticism of the current administration’s response to the hurricane in Puerto Rico. It was true of criticism of the Obama administration on the bungled Fast and Furious gun operation where mistakes were made. Criticism of government is a patriotic thing to do and woe to us if we abandon criticism of government, especially at a moment of crisis. So I absolutely think criticism is appropriate. But the difference between I think criticism and blame is criticism is designed to pivot us to solutions. What went wrong and how do we fix it? Blame can be something that is solely backward looking. And I think that’s where I would draw the line is let’s criticize absolutely with an eye towards what can be done better and what needs to be done better.
S6: I don’t think that necessarily means that, for example, the Democratic Party needs to be at odds with itself or somehow divided. Some people can be critical. Others cannot. It is important that those in the long run who really feel that the current administration is either failing to protect us and or a threat to our institutions, stay united in the long term. Big picture of how we get a more responsible government in there. There was a summit on democracy that the group Standard Republic organized with Protect Democracy a couple of years ago where we had people coming to speak to Americans in 2017 from countries that had been facing more autocratic forms of government in the modern era. To give us advice on how to deal with that. And there was a wonderful opposition MP from Poland whose final piece of advice to us on how to deal with an autocratic government was make sure the opposition doesn’t fracture, that that had been what had happened in Poland and what has allowed Kazinski in the Law and Justice Party to really aggrandize a lot of power and control the country and drive it in an undemocratic direction. Was that the opposition fractured? So, yes, we need to be critical. Yes, we can have disagreements within the opposition, but we also need to remember at the end of the day, when it comes, for example, to the election, those opposed to an autocratic form of government in the United States, from whether they are the Bernie Sanders wing, the Joe Biden wing, the John Cusack wing, whichever win one is a part of. Need to be united in protecting American democracy in the long run.
S9: So, Ian, here’s a question that I want to ask you before we turn to some of the litigation you’ve been involved in.
S3: I confess I’ve been actually quite surprised. You talked a little bit about the bill bar Justice Department. I’ve been surprised. We haven’t seen like a big all crazy power grab from the Justice Department.
S12: I expected maybe not the sort of what you’re describing. You know, the Viktor Orban style or the Netanyahu style of power grab.
S8: But I expected, I think, an immense roll out of power. I know there’s certainly there’s some opportunistic use of the crisis to clamp down at the border and to rejigger trade policy.
S3: But really, I guess I’m sort of surprised and we had a reporting last week that suggested that the DOJ was going to seek some new powers from Congress last week, talk of suspending habeas corpus, talk of teleconferencing in criminal trials, even if the defendant didn’t consent to search. But I guess in light of what could be happening under our noses. I’m surprised that there hasn’t been more opportunistic seizure of authority and control, might my very, very speculative thought on this has been that it would be kind of intention with President Trump’s happy talk that it’s all going to be fine if the DOJ was suddenly clamping down. But what’s your theory on why we haven’t seen much more autocratic action coming from the Justice Department?
S13: One one thought that came to mind as you were saying that as my how desensitized we have all become, that the proposal that was reported on the DOJ was looking for powers to petition a judge to be able to detain an American indefinitely without process beyond the judge’s signoff. That that doesn’t fit the Bill of Rights. Your title. That’s a little thing here. You just asked about why aren’t they doing more extreme things? That’s pretty extreme, right? But good point. Current moment. We’ve been so desensitized that that was sort of written off as well. That’s small ball, right, for these people. So so that’s one observation. Yeah, I think we should have been very alarmed by that. And thankfully, the two members of Congress that I saw speak out first and most forcefully against it were the independent from Michigan in the House. Justin, Justin Amash and again, Mike Lee from Utah, who I think said over my dead body in response to it. So so that was a positive sign. The other day, maybe also depressing point on this is I wouldn’t make any assumptions about what DOJ or William Barr are or are not doing. I think we just don’t know yet. And the one thing I think we need to be very careful about and watching out for is, you know, the president has talked about reopening the country in a matter of weeks against the advice of all public health experts and potentially against the directives that have been issued by governors and local officials around the country. Just last week in Mississippi, the governor of Mississippi issued an executive order overriding the shelter in place, orders that had been issued by mayors and municipalities. I think we should be concerned that right now the Department of Justice probably has some director from the White House to think about how it could use federal powers to override the directives that have been issued by governors and localities. The president really wants to reopen the country now. On the one hand, the good news is the federal government doesn’t really have power to do that by any sensible interpretation of existing law. I don’t know how the federal government could tell me, for example, to leave my house and go back to my office. If I don’t want to leave my house and go back to my office. That said, we have seen pretty extreme interpretations of the law from this attorney general in this president. And I wouldn’t be surprised if they weren’t cooking up the ability to try to issue some sort of effort like that and try to defend it in the courts. So I think the jury is still out on what the Department of Justice is or isn’t doing in this moment. And there are other things that it’s not what the Department of Justice is doing, but it’s what the Department of Justice is not doing that are really troubling. The bureau Federal Bureau of Prisons is not taking aggressive enough action to protect the federal prison population who are really sitting ducks for this virus. The immigration courts are reopening in a bunch of places as we speak to process deportations in situations in which that that also probably is not either in the best interests of public health or. Necessary in an exigent kind of way. And yet, you know, here’s the government’s sort of, you know, white supremacist clean out the country of people who don’t look like the president. That is overriding probably what’s in the best interest of public health. So we also need to be asking not only what is what, what is it that we should fear that the DOJ might do, but also what should we be concerned that they’re not doing, which is taking prudent public health measures to protect detained populations and those who are currently facing immigration proceedings in your and my contacts list under Overton Whisperer, because I think you’re always so good at exactly the kind of bracing reminder you just offered about.
S8: No. Those are norms that actually we did prize and we don’t even notice when they’re eroded. So thank you for the check up there. I feel like this leads me inexorably to one of the things that you have talked about. I think since the day we met and that is just truth and information, in fact, and science and knowable, objective truth. And you thought about this for so long. One of the reasons the U.S. response to the Corona virus has been so fraught and problematic is that we’ve all been trained in the last few years to just distrust everything, to distrust the media, to distrust government. Science is just a matter of personal opinion feeling somehow over master logic. And everybody believes that everyone else is weaponizing truth to their own nefarious ends. And I know that and you led with this at the beginning. You know, there are facts. There is science. And yet I think that part of the problem we are going to have, particularly in this country, is the level of distrust of science and fact. And those graphs that we keep seeing is absolutely as virulent and toxic as the virus itself in some ways. So I wonder if you can talk a little bit about first of all, talk about your lawsuit, your win at the First Circuit this week in terms of science. But talk a little bit about how it is possible to reclaim truth as a virtue, particularly in a moment like this one when it feels like it’s too late.
S6: Well, and let’s also frame why it’s so important if if anyone has hasn’t anyone is listening, hasn’t watched yet the Chernobyl miniseries on HBO. It’s an unbelievable feat, filmmaking and so incredibly relevant to this moment. And there’s a really incredible scene in it where a character who is meant to represent all of the scientists and nuclear physicists in the Soviet Union who are trying to respond to Chernobyl, goes in play by Emily wants to I think goes in to meet with one of the Soviet deputy, you know, region community leaders to say, I know about Chernobyl. I know what has happened. And let me tell you just how dangerous the current situation is. And the the kommissar essentially says, I also know about it and you have your opinion and I have mine. And she says, but I’m a nuclear physicist. And he says, yes, but I’m in charge. And of course, we all know the consequences for the people of the Soviet Union, Ukraine as a result of the government, ignoring scientists, ignoring fact, in fact, affirmatively going out and hiding it. And there’s been a lot of history written about how the Soviet Union’s mishandling of that led. And Gorbachev has talked about this to the collapse of the Soviet Union. So let’s lest we forget the importance both on protecting human lives, but also protecting systems of government in relying on facts and science. And so in part for those reasons. Back in twenty seventeen, when Scott Pruitt, who is the administrator of the Environmental Protection Agency, issued an order essentially kicking independent scientists off of EPA government advisory boards, we stepped in to sue. So what Pruitt and the Trump administration tried to do is they basically said any scientist who receives any degree of federal grant funding through the EPA is inherently conflicted and biased from giving the EPA scientific advice. And therefore, they cannot be on any of our advisory boards. Well, what that meant is that basically any scientist who wasn’t working for a private company, a for profit corporation, was out because scientists who don’t work for for profit corporations, university scientists, think tanks, research institutes, where do they get funded? A lot of them get funded from the federal government. So it had this amazing effect of basically clearing out anybody. Who didn’t have an industry interest and paved the way for all of the EPA advisory bodies to then be stocked with the only scientists left, which were of course, scientists who didn’t need government money because they were being paid by oil companies or fossil fuel companies or other chemical producers. And so that’s what happened. So representing the Union of Concerned Scientists. We sued because the Federal Advisory Committee Act, which is the federal statute that establishes the ability for the federal government to set up these technical advisory committees, has rules on it that are designed to make sure if the government is getting accurate, independent, balanced advice. And this past week, the 1st Circuit agreed with us that it does look as if the EPA failed to follow the Federal Advisory Committee Act because it created a situation without rational justification in which these advisory committees were to become inherently unbalanced and be basically driven by industry interests without the benefit of independent scientific evaluation. And so I mentioned that both because obviously it’s a it’s a breaking developing this week. And the notion that at this moment in time, courts are stepping in to protect the ability of government to get independent, unvarnished scientific advice from independent scientists could not be more important in the current environment. And that’s not the only win that we’ve had in defense of truth and facts. And I say this because we want to inject some degree of hope here that as I’ve been saying throughout this podcast, our system has tools. We need to use them. A couple of years ago, in one of the other more dangerous moments of the administration putting out disinformation. Recall, the president tried to justify his Muslim travel ban on the phony notion that terrorism in the United States was overwhelmingly committed by foreign born. In fact, he was so invested in that that he asked the Department of Justice and Department of Homeland Security to generate a report showing statistically that that was true. The only problem was statistically it’s not true. But the Department of Justice and Department, Homeland Security, nevertheless tried to please Dear Leader and put out a report just claiming to justify what the president was saying on the basis of statistics that were wildly erroneous. And so we brought a lawsuit under something called the Information Quality Act, which is a statute that mandates that when the government is putting out data and statistics, it uses a certain level of methodological best practices and accuracy. And in fact, as a result of that, the Department of Justice essentially admitted that it was erroneous, that the report that had put out was filled with errors. And just to give you the kind of example of the magnitude of the errors, the Department of Justice claimed that in the last couple of years, something in the order of 55000 foreign foreign-born immigrants had engaged had had been convicted of sexual assault. That’s staggering. If true, course it’s not true. In fact, the answer is that that’s the number going back to the 1950s. Right. So it’s that level of twisting of data and facts that is incredibly dangerous. And as we know, autocratic governments trying to use propaganda to scapegoat vulnerable populations is one of the scariest things that happened globally in the 20th century. You know, the examples of when that happened. And so having tools to fight back on that are key. So I think this is a moment where we need to be using all tools to fight back on the spread of disinformation. And then you’re right, there is going to need to be a real re-education in this country, re-emergence on not just the importance of facts, but how we all can be better consumers of information to make sure. For example, when we get an email from a family member that says here’s important information about Corona virus, spread it as far as you can that before we spread it, we check it and verify it and see if it’s coming from an authoritative source and see if we can verify that and not ourselves become conduits of misinformation even when we’re when we are well-meaning.
S9: Well, that’s a perfect Segway to my next question, because I think one of the other areas in which you’ve been working so hard is press freedom. And what do we do when the media, as sort of deputized by the Constitution itself, as conduits of information and as bearers of an independent constitutional duty to check the government and to tell the truth, has been maligned and insulted and bricked out of information. And again, I think no matter how good the science is, even if the media cannot tell the truth, if the president has fomented such massive and profound mistrust of the press, how do we unspool that? What do we do to. I mean, you’re talking about a pipeline here of truth.
S8: If the bottleneck is the press itself, how do we even begin to repair the damage done when an awful lot of the reporting, including the reporting we are trying to do, as you said about this. Endemic is kind of laughed off as fake news and a hoax.
S5: Well, we start by recognizing that one of the favorite tricks in the bag of the modern autocrat is de-legitimizing the media and eliminating the media’s ability to criticize the government.
S6: There’s a professor at Princeton, Kim Sherpao, who spent about a decade in Hungary stuttering, studying Viktor Orban and Vladimir Putin. And very early on in the Trump administration, she’s one of our advisors to protect democracy, warned us that there is a tool that these modern autocrats use that is pretty predictable.
S11: And this is what Viktor Orban did in Hungary, which is when media was critical of him. He used the regulatory powers of the government to clamp down on those media entities, harass them with investigations and audits and prosecutions, and really reduce the market value of those entities that were critical of his government. And when those companies saw their market value plummet, all of a sudden, whiteknight investors swooped in and offered a very generous offer to buy the property. The media entities sold, and as soon as the media entities sold, the government lifted the regulatory thumb, which of course, made the market value of the company rise. And lo and behold, it turns out that those investors were allies of the governing Fidel’s party. So they made a pretty penny on the deal. And then they basically turned the outlet from one that was critical of the government to one that was loyal to the government. And that was the playbook that Orban ran at Hungary. And Professor Schrapel really advised us to watch out for that playbook playing here. And sure enough, starting in 2017, President Trump directed the regulatory powers of the federal government to harass and retaliate against media outlets whose coverage he didn’t like. So just a couple of examples. He ordered the postmaster general to raise shipping rates on Amazon because he didn’t like the coverage of The Washington Post. And of course, The Post and Amazon are owned by the same person, Jeff Bezos. He has Department of Justice brought in antitrust action against AT&T and Time Warner because as the president pretty explicitly said, he didn’t like the coverage of CNN, which is owned by AT&T. We saw the White House press briefing room where Sarah Sanders, at the direction of the president, was stripping press passes from journalists that she said were asking inappropriate questions. There’s coverage that that the White House didn’t like. The combination of all of those efforts really created a sort of sort of Damocles over the media that said, look, if you’re going to be critical of the president, then the government has ways of retaliating against you in ways that can really get to your bottom line. Now, thankfully, I think our media has responded incredibly valiantly and we’ve had some of the best journalism in decades during this era because I don’t think journalists, by and large, are entirely giving in. But there are indications that these things are having an impact on uncertain members of media and certain companies and certain coverage. And so we filed a lawsuit a couple of years ago alleging that these were First Amendment violations, which is pretty clearly grounded in the law. And this past week, we won the motion to dismiss in the southern district of New York. The government had sought to dismiss the case and the judge disagreed. The judge believes that there are viable claims here, particularly with respect to the stripping of press passes for White House reporters whose coverage the president doesn’t like. And so will now be proceeding to Discovery in that case. And I think it’s just another example like the lawsuit on behalf of the Union of Concerned Scientists. This one, we represent the journalism group in America of the ability to use tools in our system to fight back. I can’t think of, you know, sort of more important things to be doing right now than protecting both a free press and the distribution of of unvarnished facts and scientific expertise.
S9: And I just want to take a moment, Ian, to just point out that, you know, you are describing an aggregation of litigation and partners who are working with you. And, you know, it’s just useful to flag for listeners that these are all organizations that you can know about that you can support. This is, as Ian keeps saying, not a spectator sport. And just educating yourself about what it is that places like Penn or doing or the Union of Concerned Scientists, what they are doing and how they are working sort of in these small bore ways to make huge changes, I think is sort of at the nut of the work that in has been trying to do for the last couple of years. I want to ask one last question, but it is the one that I think so many folks are worried about, and that is just elections. We just finished a huge series pre-pandemic about how really fragile the 2020 election might be. And in the intervening few weeks, we’ve seen all the ways in which, you know, Ohio led the way in teaching us that this could really profoundly change the way we vote in. Twenty if we vote at all, and I think the question I want to ask you and I know you want to talk a little bit about the work you’ve just started on this, but I think I want to ask you the same question I tried to ask Josh Geldzahler in print last weekend, which is how are we going to know what indicia are we going to have looking backward?
S8: That this was a free and fair election if, say, only 18 percent of the population voted? What metrics are you using to think about not just sort of stopgap solutions? And I don’t want to imply that mail in balloting is stopgap. But how do we think about this in a huge wide lens system’s way?
S11: I mean, I think the three touchstones that we’re going to want to look at are law, facts and participation. Was the election conducted according to the law? That is, there’s a whole set of laws at the state level. There’s a whole set of laws at the federal level. And how compliant was the election with those laws facts? There are going to be changes that are going to need to be made in order to accommodate an election in a time of corona virus where those changes based on real world facts. You mentioned there’s some work that we’ve been doing on this, which is we helped assemble a task force on election crises that brings together a quite amazing set of odd bedfellows. And so, for example, it includes the former Republican president of the National Association of Secretaries of State, Trey Grayson, who is the secretary of state in Kentucky. It includes the former Bush administration, secretary of the Department of Homeland Security, Michael Chertoff. It includes John McCain’s former counsel, Trevor Potter. It includes the heads of civil rights organizations like Sherrilyn Eifel at the Legal Defense Fund and Vanita Gupta at the Leadership Conference on Civil Rights. These are not typically actors who are always in concert working together with each other. And I think the fact that they’ve come together now in order to put together a really cross ideological group that is dedicated to providing recommendations and advice on how we survive any sort of crisis that could before the election. This past week, that group put out guidance on how to adjust the election for rotavirus. But that group is going to be putting out more guidance on a whole other set of crises that could befall the election. And, you know, one of the pieces of advice that the group put out is that changes that government officials make to accommodate the election have to be made based on clear facts. And those have to be explained to the public. They have to be explained in advance, not at the last minute. And so that’s why that planning needs to happen now. And then the third is participation. And you allude to that. Right, which is there is two things about participation that I think we’re going to look to. One is what is the sheer level of participation, making sure that we haven’t had an election that’s so fallen from traditional participation levels that it really raises questions about whether it is consistent with past elections and therefore legitimate. The second is the equity of that participation. If we were to come up with measures for protecting the election that disproportionately cut out certain populations from being able to participate in an equitable manner, I think that would raise serious questions about legitimacy. And so another thing that the task force has really talked about in its recommendations is how do we not just make accommodations that make it possible to hold a successful election, but make sure that those accommodations are done in such a way that doesn’t make it harder for certain populations to participate? And I think that should be a cry again. What do you cross ideological across ideological concern in this way? We know that America has a horrible, tragic history of making it harder for communities of color to vote. So that is always going to be ever present. And at this point in time, I think it’s reasonable to expect that is gonna be harder for elderly Americans to vote because they are going to be the most vulnerable to the virus. And so both the Republican Party, which tends to do well among elderly Americans and the Democratic Party, which tends to do well among communities of color, have a vested interest in making it possible for everyone to vote. And I think that hopefully will give us some ability to bring people together, as we have in this task force, to try to create an election that is free and fair and legitimate.
S8: And I know I have to let you go. I want to ask you one last lightning round. What are you optimistic about right now? Folks are are freaked out and they’re scared. And I’ve had more than one text that says America as we know it is over. What are you telling folks when they say to you, crass, ideologically, I’m freaking out right now.
S11: I say, what if this is actually the thing that is going to help us get back on track? And here’s what I mean by that. I run an organization about protecting democracy. And I can tell you that no matter how much we try to do using the law or policy to protect our structures and our systems of government at the end of the day. The thing that I think mostly has been most responsible for driving the downturn in support for democracy, the failures of our system of government, the failures of democracy, is that we have been balkanizing as a people, as a polity. We have been retreating into our camps. Whether that is red, blue divides, whether that is urban, rural divides, whether it is racial and tribal and demographic divides. Whether it is income divides where income inequality has really made it so that so many Americans are just living fundamentally different existences from one another. Information divides people inhabiting entirely different information environments. It is very hard to run a functional democracy in a society that is so balkanized and isolated from one another in terms of the worlds and lived and shared experiences that we all have.
S13: Here’s the amazing thing. If you could have told me that I could wave a magic wand and try to fix that underlying Balkanization problem, what would I have tried to do? And a lot of people in the democracy sort of space have been thinking about this last couple of years. I would try to find some way of giving Americans a shared experience again, a shared, lived experience of being neighbors and holy cow. It is not something we wanted. It is not something we asked for. We would be happy if it would go away yesterday. But what we have is a public health pandemic that has actually done that, because what we are doing now in a way that we haven’t in decades in this country is we are all living a shared experience. You’re sitting in your house. I’m sitting in my house. We have our listeners at home sitting in theirs. We’re concerned about getting groceries. We’re concerned about protecting our loved ones. We’re concerned about staying sane without being able to go out. When we go out, making sure we maintain six feet of distance, if you walk down the street, maintaining six feet of distance, if you do, you will hear other people having the same conversation that you’re having in your house. Now, this is not to in any way ignore the fact that the effects of this pandemic are going to fall disproportionately among the population. The most vulnerable people in this country, the poor communities of color, are going to suffer even more than the rest of us. The effect of the virus affects people differently. Older people could suffer more. So there is definitely inequality in terms of how we will experience this. But the fact that we’re all living the same life day to day, and not just in the United States, but people in Thailand and people in Ecuador and people in the Upper Peninsula in Michigan and people in the Bronx are living a shared life in a way that has not happened in modern civilization. And as scary and bad as this moment is, there has to be some hope and some optimism that us going through this together. US living this shared experience can actually help us restitch our social fabric and remind us that we have something in common in a way that I can’t imagine how it otherwise could have been accomplished opposite war. And it may give us coming out of this the kind of foundation we really need to renew our democracy and renew our commitment to living in one country as a shared community where we’re looking out for one another. So, yes, there’s a lot of scary stuff going on. And, you know, I am scared of a lot of it. And I’m out there saying, oh, my God, autocracy is coming. And I believe all that is possible. But more than that, I believe we can rise above it. And I actually think there is in all of the horror that we’re experiencing a real gift if we seize it. And I would encourage us all to think about how we seize that at our community level, at our neighborly level and at our national level.
S9: Ian Bassan is co-founder of Protect Democracy, a cross ideological project that has used litigation and policy advocacy and a range of civic action tools to protect our core democratic values. In there is no one I would rather rise above the panic with than you. Thank you so, so much for sharing so much of your time today.
S14: Thank you, Dalia. And now for our Slate Plus members, it is time to connect with a bedroom. Oh, by the way, in Washington, D.C. And the bedroom belongs to Slate’s own Mark Joseph Stern, who is covering the courts and the law for Slate. From said bedroom, I think Mark’s going to help us navigate some of the big stuff we couldn’t get to in the main show, starting with the Supreme Court and probably talking a little bit about the other federal courts and how covered 19 is affecting the law of the land. So, Mark, welcome back.
S15: Thank you. Happy to be here. Bedroom, two bedroom.
S2: And you’re recording with dog?
S16: Yes. Yes, I am. My my beautiful dog Lucy is here sitting right next to me. She’s decided to sit in on this recording session to give me kind of a performance review, since I’m not getting much face time with my boss. She’s gonna step in there and tell me how I did.
S17: Outstanding. Well, Lucy, welcome to Energous. Mark, let’s start with the Supreme Court, even though the court is not hearing argument. They are issuing opinions, and I guess the noteworthy opinion this week involves the insanity defense. Can you talk a little bit about it?
S16: Yeah. So this is a case called Coller versus Kansas that asks whether states can abolish the insanity defense. And what’s kind of weird about the Supreme Court’s decision is that by a 6 to 3 vote, with Justice Elena Kagan joining the conservatives, the court basically said, yes, states can abolish the insanity defense, which means that defendants cannot raise the affirmative defense at trial, that they can’t be guilty because they didn’t understand moral right from moral wrong. That’s the insanity defense. Kansas got rid of it and the Supreme Court said, yup, Kansas can do that. But what’s weird is that the court basically lied about what it was doing because Justice Elena Kagan’s majority opinion did not come out and say as it should. We’re letting states abolish the insanity defense instead. Justice Kagan said, well, all Kansas really did here was change the insanity defense. It just redefines the insanity defense. You know, it made it harder for a defendant to meet the standard, but there is still an ability to raise insanity at trial. And the truth is that that’s false. That what the court did was abolish any known version of the insanity defense because defendants can no longer raise their inability to tell right from wrong at trial. And the court was totally dishonest about it. And instead of just coming out and saying it pretended like it was letting Kansas modify the defense, that raised a lot of hackles in the legal community. It raised a lot of questions about why Kagan decided to write this kind of misleading opinion. And I guess most importantly, it basically lets every other state go ahead and abolish the insanity defense and just pretend that it’s only modifying it and the Supreme Court will give that the green light.
S17: I want to give you a minute to talk about this, because you and I have been writing for a long time about how Elena Kagan and Stephen Breyer have been kind of work in the work, the refs playing a long game, trying to find consensus where they can pick off a vote or two where they can, and that there’s been a really deep split in sort of tactics between that kind of behavior and what we see much more so from Sonia Sotomayor and Ruth Bader Ginsburg, who are, you know, creating bomb throwing dissents and not really working to build consensus or thinking about, you know, if I give a vote here, I might get a vote. There is this, in your view, is this emblematic of Elena Kagan kind of working a losing strategy?
S16: Yeah, I think that’s what’s going on here. I suspect if Kagan had the votes to force states to maintain the insanity defense, that she would do that. But I think, you know, she was sitting in conference with the other conservative justices and she saw all the other conservatives say, sure, Kansas can abolish insanity defense. And she decided to jump on board and write this opinion, that sort of misleading. But that does leave open the possibility that there is a line states can’t cross. So, for instance, even though Kagan let states abolish the defense, which means you can’t raise this as a total defense at trial, that you’re not guilty because you couldn’t. Tom world right from wrong.
S18: She does note that Kansas still lets people raise insanity during the sentencing phase. So a person who thinks they’re insane can say, hey, I don’t deserve to be put in prison for for this long because I’m not as culpable as as the average bear. You know, I was insane. I didn’t know it was going on. So maybe Kagan thought that she was sort of preserving the ability of defendants to raise the insanity defense at sentencing and kind of giving a half loaf to both sides and forestalling an even more devastating decision. But honestly, her decision is still pretty devastating. And I do think that she’s playing a losing game, at least in this context, because even Justice Stephen Breyer, who is her ally in this strategy, as you noted, did not go along and in fact, wrote the dissent saying, hey, Elena Kagan, you’re might be a theft. You know, we’re pals. But here I got a split from you because you’ve lost your mind.
S17: So the other Supreme Court news that we should talk about, Marc, is that on Monday, the court created a new and higher legal standard to make it harder for folks to sue over racial discrimination in the employment and other contract context. Can you talk a little bit about that? Not a huge surprise, right?
S18: Well, not a huge surprise in terms of outcome, but it is pretty shocking that every justice joined the opinion. This was a unanimous decision written by Justice Neil Gorsuch, a real conservative in this context, as an. Posts where Gorsuch said, yeah, there’s this federal law that bars race discrimination in contracting, and it’s worth noting that this is much broader than something like the Civil Rights Act, which only protects actual employees. This law, because it deals with contracting, also protects independent contractors. Right. People who work for Uber. They’re not protected by Title 7, but they are protected by this law. And what Justice Gorsuch said was, sure, this law is broad, but it requires very explicit proof of racial discrimination. So you can’t win a case under this law. If racial discrimination was one factor among several for the reasons that that you got your contract terminated or that you weren’t able to make contract. You have to prove that race discrimination was the butfor cause, meaning that but for your race, you would have gotten this contract. But for this racism, you wouldn’t have been screwed over. And that’s a really high standard to meet. I mean, it basically requires a smoking gun in many contexts, which, you know, most people who are racist are still smart enough not to come out and say, I’m denying you this contract because I’m such a big smoke and racist. And so every justice joined the opinion, a big surprise to me. And we now have a gutted civil rights law and the entire Supreme Court was ready to kick it to the curb.
S2: Mark, can you hazard a guess why we just talked about tactics? Why did all the liberal justices jump on board to make this a unanimous decision?
S16: Yeah. So Justice Ginsburg wrote this concurrence that pretty much tells us the answer. There is this other big question in the case about what kind of race discrimination is illegal under this law. And the question is basically, can there be a racist process and have the racist process violate the law or does it only have to be a racist outcome? And then can the racist outcome be the only thing that’s illegal? And this might seem like a technical question, but, you know, if there’s racism throughout the process, that should be illegal race discrimination. And yet Justice Gorsuch refuses to answer that question. The opinion, he says we’re reserving this question for a future date.
S18: We’re not deciding it now. And I think that the reason the liberals joined is because he left that off the table for now. The liberals were like, okay, we’ll make a compromise. You know, we’ll we’ll accept this higher standard, but we’re not going to create a distinction between process and outcome yet.
S15: So it kind of leaves a battle down the road for the Liberals to fight some future day. And I think they were willing to accept that compromise and go ahead and join the opinion, even though it sucks in so many other ways.
S17: So I guess this leads to the last SCOTUS question I have, Mark, and it’s the one that I guess everyone is asking, which is March. Arguments gone April. Hard to see April arguments happening. Is there going to be a rest of the term? What’s the. I know there’s a bunch of cases that will come down. But do you have any sense that the court is kind of making provisions for Xoom meeting the rest of the term or I don’t know, you know, smoke signals, whatever it is. Quill pens. How does the rest of the term get resolved? And I ask it in the larger context. You know, you and I have talked about this a thousand times, but this was meant to be the term of the decade, right?
S18: Right. And now we have no idea what’s going on because this is a, you know, not a very transparent body. We know that the chief justice was the only one to actually go to the Supreme Court for their traditional conference. Usually they all sit around a table and chat. This time only the chief was there and all the other justices phoned in as it should be. I don’t know if Justice Ruth Bader Ginsburg is wearing a hazmat suit everywhere yet. But if not, she definitely should be. I know there are many doctors on the front lines who would still be willing to donate their their their gear to her. And I think what’s going on is that the court is in totally uncharted waters and it is a uniquely ill equipped to handle this crisis. You know, every circuit court of appeals is more transparent than the Supreme Court. They’ve all figured out how to stream oral arguments and put them on line and do it over the phone. Every state Supreme Court is much more transparent. They’ve got this figured out. I mean, the North Dakota Supreme Court recently held oral arguments live on Xoom for all the world to see. And the justices of the Supreme Court do not believe in that level of transparency. So we’ve cancelled March oral arguments. Right. And we just don’t know what’s going to happen with April arguments. But these are really critical arguments. I mean, these include a case about whether electors, people in the Electoral College can just vote however they want and be so-called faithless electors, which would kind of render the November election advisory and allow a group of. Five hundred or so electors decide the presidency. That’s a huge case that has massive importance and the court has no clear backup plan to hear it. So we’re all in the dark here. But I certainly hope the Chief Justice has his thinking cap on and is maybe thinking a little more 20:20 than 19/20 right now because the show must go on for at least a few of these cases. And if he’s not willing to zoom it in, then I fear an actual physical argument that could put the justices at risk.
S12: And we should add the financial records case. Yes. Right. Still. But still, still, you know, seems kind of important in terms of the next few months. I have to confess, Mark, while you were talking, I was trying to imagine the chief justice by himself in the conference room. Typically, the most junior justice is the one to hop up and down and answer the door when the justices are in conference. Nobody’s allowed in. And it is the source of great hilarity in the world where nothing is hilarious. But it is hard to imagine John Roberts jumping up and down and answering the door to the conference room. But then I guess if no one’s in the building, nobody’s knocking anyway. These and other franchise existential thoughts. Can we assume, Mark, that one of the things we’re learning from Covered is that all of the failures of the courts, including the the federal courts and the state courts, to really be of the moment technologically are this is a big I-told-you-so for people like you and I who’d been saying for years, like you don’t have to act, you know, party like it’s 1854 anymore.
S16: Yeah, I think that’s true, especially in in like trial courts that just had no contingency plan to be able to hold constitutionally mandated hearings during a crisis. I mean, you know, we all want to keep these courts as empty as possible. Right. And keep defendants out of and keep everybody out of them because they’re a hotbed for infection. But people have due process rights. People have rights to a speedy trial. People have all these constitutional rights that courts have not figured out how to how to maintain and respect and honor when there is a pandemic raging. And I do think that there should be a wake up call to the judiciary, top to bottom, right down to, you know, traffic courts, that we’ve got to figure out a way to keep these things running when everybody’s forced to work from home because there’s a virus that’s that’s killing a bunch of people. You know, we can’t just suspend due process because there is a pandemic. There’s there’s got to be some way to figure this out. I think state courts are leading the way. I think federal courts are still way behind and screwing this up pretty bad.
S12: That’s a great segue. Way to my question mark about immigration courts, where it really is, I think increasingly life or death. He wrote about this so compellingly. But do you want to talk about what’s happening in the immigration pipeline as a result of the virus?
S15: Yeah. I mean, this is just terrible. So we know that there are outbreaks now in immigrant detention centers. Right, run by ICE and CBP. And we know that there have been infected people in immigration courts. And let’s remember that immigration courts are not Article 3 courts. Right. They’re not independent. They’re actually under the executive branch. And so the Trump administration and Bill Barr’s Justice Department has just been hanging around these poor immigration judges that the administration plans to reopen immigration courts in the middle of this pandemic to process claims of people who are not currently detained and to potentially accelerate deportations in the middle of this outbreak and force these judges and their staff to sit in often cramped quarters among people who may well be infected with no contingency plan. It’s a total disaster. And the administration just seems to be prioritizing deportation and the punishment of immigrants above all else, even when it puts a whole lot more people at risk, including a lot of U.S. citizens. So I think this is the biggest disaster when we’re surveying the court landscape right now is the administration’s refusal to close these courts immediately and its insistence now on reopening them for no clear reason other than to punish immigrants and the judges who might allow them to continue living in this country.
S2: And just a last quick note and the same key, Mark, on Bill Bar and the Federal Bureau of Prisons.
S12: Sort of same picture.
S15: Yeah, same picture. And yet the U.S. attorneys around the country who many of whom do really take their orders from Bill Bar at this point, they are opposing over and over again motions to release highly vulnerable people from jails and prisons controlled by the feds. People who are immunocompromised, people who are very elderly. People who are at. No. Risk of re-offending. Who did not commit violent crimes? These people need to be released, right? They are real targets for the Corona virus and of U.S. attorneys across the country are saying, no way. We want to keep our jails and prisons packed to the gills and that’s turning them into sitting ducks for infections.
S2: Mark Joseph Stern covers the courts and the law and the Supreme Court for Slate. He does so from his home.
S8: Mark, we are grateful, so grateful for your time, but also wishing you and everyone you love good health and wash your hands and give Lucy a little tug on the ears for me.
S19: Thank you. Same to you. Give your kids a tug on the earth for me. If they’re still willing to accept that. Thanks, Mark.
S20: And that is a wrap for this episode of Amicus. Thank you so very much for listening. Thank you so much for all your letters and your questions. You can always keep in touch at Amicus. At Slate.com, you can find us at Facebook dot com slash Amita’s podcast. We are trying to answer your questions as we bump along. But do let us know if something is on your mind and we will try to get to it. Today’s show was produced by Sara Bermingham. Gabriel Roth is editorial director of Slate podcast and June Thomas is senior managing producer of Slate podcasts. We will be back with another episode of Amicus in two weeks. Till then, wash your hands, stay six feet away, take good care of yourself and your loved ones, and we’ll see you soon.
