The Supreme Court Confronts Its Critics

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S1: Hey, everyone. Mary Harris here. Before we get started today, I just wanted to pop in and say thank you for subscribing to what next? And we want to hear from you. We’re wondering what stories you think we should explore on the show. While you’re itching to know more about, just email me at what next at Slate.com? Let me know, OK? On with the show. When Dahlia Lithwick started reporting on the Supreme Court, there was this schedule the first Monday in October. Reliable as pumpkin spice lattes. The justices would start hearing arguments that issue their most important rulings just in time for summer and then traditionally they’d disappear.

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S2: Oh, they travel. They would, you know, it was funny Justice Kennedy would go off and teach some class. I mean, they all did it. In fact, one year I wrote this slightly snarky piece, so they only worked a couple of weeks a year.

S1: The Supreme Court season their luxurious breaks. It always made Dahlia roll her eyes a little bit,

S2: and Justice Stevens was really mad at me. And actually my colleague Linda Greenhouse at the Times was really mad because she was like, We work all summer long. Like, there’s a lot going on in the summer, and I was like, OK, I guess I’m missing it.

S1: This schedule still dictates how a lot of people talk about the court. When you open up the paper this week, you’re going to read about the new term. Reporters are going to be speculating about upcoming oral arguments the same way TV Guide used to point you to the fall sitcoms, even though this year

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S2: everybody worked all summer this summer.

S1: Careful what you wish for.

S2: Yeah, no. I mean, I think my boy, they showed me.

S1: Dahlia herself is not doing a traditional curtain raiser article for the simple reason that the court isn’t really following tradition instead of taking a break this summer. The justices kept issuing opinions using an emergency docket. They weighed in on immigration abortion. President Biden’s eviction ban always weighted towards their conservative supermajority. And then many of the justices went on a kind of friendship tour looking to convince people they were non-partisan.

S3: Court Justice Amy Coney Barrett made a stop in Louisville today. These photos are from inside.

S2: It is clear in the last two weeks alone we’ve had three justices. That’s a third of the court out, making very, very vocal public proclamations that they are not to use. Amy Coney Barrett’s construction. Partisan hacks Justice Breyer. I don’t know what shows. He hasn’t been on making that point.

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S3: Yes, values differ. And in tough close cases that can show up, let’s call that the nature of human beings living together in a community that’s run by a rule of law.

S2: Breyer, of course, he is out everywhere, everywhere, wanting us to know that they are not, as he puts it, junior varsity politicians Clarence Thomas also.

S1: The problem is, many Americans don’t seem to be convinced or if you look at the polls. Maybe they just don’t want to listen.

S2: I mean, the Gallup numbers that came out last week were sort of 37 to 40 ish percent approval, the lowest since Gallup has been polling. I guess it’s everybody always says cheekily that’s still 30 points higher than Congress than that, you know, executive red like winning because everybody hates, but it’s

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S1: not trending in a great direction.

S2: It’s trending badly. And it’s also, I think what the pollsters are saying is that it has plummeted in just a matter of months.

S1: So with the justices settling in for a new term with cratering public approval, I wanted Dahlia to decode what’s going on here and tell me how to see a Supreme Court that seems to be turning itself inside out.

S2: The court lives in this weird interstitial space between one story it tells about itself, and that’s the story that Justice Breyer and Thomas and Barrett are telling right now, which is we are our brains in bats. We are oracles. The minute we are confirmed, we shed our prior convictions and predilections and we just like, we’re just doing like the Ouija board with the framers. That’s what we do. And to suggest otherwise is to hopelessly pollute and politicize the project, right? That’s one story. And that’s the story the justices want to tell. And by the way, that’s the story they’ve wanted to tell since the founding. And then the other story is they’re completely partisan hacks, even though the court gets super, super mad. When you tell that political story, sometimes you have to tell it, and I just think it’s this weird suspension of disbelief. And that’s the water we just swim in on this beat.

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S1: Today on the show, a whole new way of looking at the docket, this Supreme Court curtain raiser is going to sound a little different. I’m Mary Harris. You’re listening to what next? Stick around. Traditional Supreme Court start of session reports focus on the big cases the justices are going to be hearing. They are weighted towards hot button issues and big personalities. But Dahlia says that’s only part of the story and the justices themselves. They may not be the most reliable narrators when it comes to how their jobs are changing. I feel like at first started seeing this divide in how people are talking about the Supreme Court really at the end of last term, because there were a few of these unanimous decisions that suggested agreement between the justices and the way it was characterized by some reporters like ABC described it as bonhomie, which you know what a word to actually just use in your journalism. But you know, they were sort of trying to imply that like, things are fine, everything’s OK. Can you just really quickly sum up why is that not true?

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S2: Whenever you hear about the I think the ABC quote was astonishing bonhomie. Whenever you hear Justice Breyer talking about how well the justices get along, do you know we have meals together? And at no point does anyone smash each other over the head with the expensive crystal as though getting along is the same thing as. Agreeing on cases, right, and this was always the Scalia Ginsburg story,

S1: because they were close,

S2: because they were best friends and they adored each other, and they each thought the other hung the moon, and nobody could believe that everyone thought that was like a stunt. It wasn’t a stunt. They adored each other. It doesn’t mean they agreed on cases or how to do law or on almost every big, important question. And I was listening to him

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S4: and disagreeing with a good part of what he said, but thought he said it in an absolutely captivating way. You agree on a whole lot of stuff you do. Ruth is really bad only on the knee jerks.

S2: Yes, we have this idea that as long as people aren’t punching each other in the mouth, they’re agreeing and at the court. The idea that the justices aren’t pulling each other’s hair doesn’t convey what is happening on the docket. And I think the other most important story they want to tell is that they all get along and it’s true. I mean, nobody, nobody is putting frogs in anyone’s lunchboxes, but that doesn’t tell you anything.

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S1: Another thing that distracts us from the more consequential actions of the court are the flashy cases. You know, the cases that might not affect us, but they’re immediately understandable, relatable. And so they get a lot of coverage. I mean, this past term, there was a literal case of a cursing cheerleader. This was a dispute about whether a Pennsylvania school district was wrong to punish high school or Brandi Levy for cussing at a convenience store called the Cocoa Hut and posting her rant on social media. Flashy case? Sure. Big ramifications for free speech? Well, not really,

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S2: to be clear. Like Brandi Levy, the swearing cheerleader. Amazing. Amazing fun facts, right? And she’s not just like saying the F-word four times on Snapchat, and she’s doing it at the Cocoa Hut. Like it? Every piece of it is delicious, and it kind of warranted so much coverage because the facts were delicious, and in the end, it was a bit of a fizzle. The court didn’t decide anything singularly important. We just love to tell those funny cases with funny stories, and we do that every year. But I think there’s another problem that I’m only starting to be able to name, which is we describe the case that’s coming. We describe what happened in the lower courts. We describe the stakes. But we can say this swearing cheerleader case is going to finally clarify once and for all the contours of student speech on an off campus and whether schools can discipline. And we can say all that. But if the court doesn’t do all that, then we just look kind of dopey. Hmm. And the best example of this, of course, is you can remember this time last year, everybody was saying, Amy Coney Barrett is going to strike down the Affordable Care Act. That’s what she’s going to do.

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S1: She’s criticized the Supreme Court’s five to four and six to three decisions upholding key sections of Obamacare.

S5: The big, secretive influences behind this unseemly rush see this nominee as a judicial torpedo. They are firing at the ACA,

S6: and I assure you that I am not. I’m not hostile to the ACA. I’m not hostile to any statute that you pass and

S2: that that was her whole confirmation hearing, right? She is going to be a vote to take away America’s health care. And then, of course, she didn’t vote to do that. In fact, the court just like kicked that case to the curb. And that’s also distortive because then you can say, Hey,

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S1: then you say she’s, oh, she’s a moderate.

S2: She’s super liberal. She didn’t vote to strike. So I think what I’m starting to realize is that part of the problem is that the Supreme Court press corps and the court watchers and the advocates are telling a story about what they their best guess about. What might happen is, and that’s again, all we can do. And by the way, the press corps does it phenomenally well. But then they’re kind of pitted against a Supreme Court that actually makes very strategic decisions about what they do and how. And they hold all the cards in that game. The reporters hold no cards.

S1: Well, so can we look ahead? Let’s talk about Dobbs versus Jackson Women’s Health Organization. This is the Mississippi abortion case. It’s going to be heard in December. How should we think about this case, given how you’ve been thinking about coverage of the Supreme Court?

S2: Well, I think I would start with it’s almost impossible to look at Dobbs without seeing that it is happening in the shadow of that. Texas SB eight, right? The six week abortion ban

S1: SB eight is that Texas law, the nearly absolute abortion ban. It flouts prior Supreme Court precedent on abortion access over the summer. Opponents of the law. Asked the Supreme Court to intervene and block it from going into effect, the conservative majority declined, Dahlia says the lack of Supreme Court intervention in the SBRT case. It kind of paves the way for the court not to overrule a slightly less draconian Mississippi abortion ban.

S2: If the court had enjoined S.B. eight, the court would have looked unbelievably judicious, right? Imagine how much credibility it would have had going into the Duffs case, because it would have just said, as a principled matter, we have to be consistent. You can’t just take away people’s constitutional rights by a trick of drafting.

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S1: But oops, I mean, you’ve said how you’ve said how the true shift is in some way that cases like this one like this Mississippi case are being brought at all because it’s so aggressive to even try to ram something like this through. Can you explain that a bit?

S2: Well, I think part of this is simply the optics piece, and the optics is meant to be that if the court decides a seminal abortion case in 2016, you don’t bring an abortion case the next year. It’s just unseemly, right to come back to the court and say, Oh, but now we have Kavanaugh. So now we think we’re going to we’re going to do it again. Now we have Gorsuch, and that’s in effect what Dobbs is saying. Well, now Amy Coney Barrett’s on the court. Now we think we might get six votes, but at minimum we’ll get five. And maybe the best evidence of that is that when Mississippi initially wanted to press this case, they were making arguments about 15 weeks and fetal pain. By the time this case is briefed at the court, they’re asking to overturn Roe.

S1: So they’ve changed their approach, their argument.

S2: Even the ask is shooting for the Moon. And I think the point I’m trying to make is if you just say, huh, there’s another abortion case at the court that’s curious. I feel like they’ve heard three in the last couple of years. That’s part of the equation. But the fact that the court would agree to hear a case that was quite aggressively devised to arrive at the court to overturn Roe and where the parties are now seeking to do a thing that nobody would have asked the court to do in prior iterations of these cases, the appearance is quite awful. And I think maybe the last piece of this, which is going to sound technical, is also it raises these real questions about the value of precedent and stare decisis, right?

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S1: Explain those for people who don’t know

S2: just the very, very simple notion that the court is not the sort of fleeting totality of the nine justices on it, but that the court is bound by prior decisions. And that precedent really matters, and that the court doesn’t disrupt earlier cases simply because they don’t like the result. So when you have a case being pressed from the left or the right, by the way, that says we want you to dismantle what’s come before and we want you to do it because the composition of the court has changed, it creates this sense of like deep instability in the law. You don’t know what to rely on. You don’t know what is foundational. That’s why Mary. You’ll recall in all the confirmation hearings, we always get these funny, arcane discussions about what is precedent and super precedent and ultra super duper, you know, triple handshake precedent because the what the senators are trying to get on both sides is, would you be willing to throw Roe under the bus? Would you be willing to throw Brown v. Board under the bus? And so these questions about precedent aren’t simply, do you respect what’s come before it’s are you open to revisiting things that the other side believes to be settled?

S1: What’s interesting about hearing you talk about this Mississippi case and kind of how to understand it is that I think there’s so much attention on what’s going to happen in December. What are the arguments going to be? But talking to you, I realize in some ways the case might not matter, because even if the justices say, Listen, this can’t go through like a 15 week abortion ban, we just, you know, we have precedent here. We can’t do that even if that happens. The justices have rubber stamped what happened in Texas. And so what’s going to happen is the coverage might say, Oh, look, the justices, you know, they preserved the right to an abortion in this case. But at the same time, you know, the right hands doing one thing, the left hand’s doing something else.

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S2: That’s right. And Marc Stern and I have been writing, I don’t know for how many years now. The court doesn’t have to write the sentence. Roe v. Wade is overturned to end. Roe v. Wade.

S1: After the break. Dahlia Lithwick explains what she thinks is leaching away some of the Supreme Court’s legitimacy, its reliance on something called the shadow docket. When Dahlia sees Supreme Court justices crowing about how apolitical they are and about how the public should trust them. One reason she kind of throws up her hands is because of a change in the way the court has been doing things. The court’s tough to understand for normies already, but lately there’s been a spike in cases considered on something called the shadow docket.

S2: Yes, it is a term that was coined by a law professor, Will Bode,

S1: a former Roberts clerk.

S2: Yeah, he I think the term initially isn’t meant to sound pernicious. It is cast as something very pernicious, but it’s the term to describe the emergency docket. So the court has always had an emergency docket. It’s four cases, often death penalty cases, right where there’s just not going to be a ton of time for this court to set an argument and whatever schedule or arguments schedule. Elaborate briefing. Right. So so there’s always been a shadow docket. The question is, and the reason the words have become fashionable is a couple of things have really very, very dramatically changed in the last couple of years, and I would commend to folks if they want to read about it. Steve Vladeck, who writes for us at Slate, has done pretty comprehensive running of the numbers. So from 2001 to 2017. So that’s across right, the Bush and Obama presidencies. These requests for emergency relief, leapfrogging the lower courts minimal briefing happened. Let me get this number right. Eight times there were eight such requests when Trump takes office in 2017. Suddenly, the Justice Department was seeking relief. Forty one time. Well, just that the tendency of the DOJ to say this judge has enjoined this thing, we’re not going to wait for this to percolate up through the courts. We’re not going to wait for anything. We just want the court to stop it. That huge uptick right from from eight requests to 41.

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S1: And it seems like when the DOJ started doing this, it kind of opened a floodgate like other people saw this and we’re like, Oh, we can do this too.

S2: Right, right. And that’s like the COVID cases. The COVID cases were state restrictions that set limits on attendance, and the court was saying in one case after another, a whole array of them that religious institutions and enterprises and plaintiffs could be exempted from that. So, for instance, you know, in April, the court hands down again at 11:30 Tandon versus Newsom. This is the five four decision issuing an injunction blocking California’s COVID limits on in-home gathering because religious adherents wanted to pray and have a Bible study.

S1: Why wouldn’t they just say, come back and have a full hearing, like if you want us to intervene here? Go the normal route?

S2: Well, I think because it was the court determining that this was an emergency, and in those COVID cases, two things were happening. It wasn’t just that these weren’t briefed and argued, sometimes you’d get back of the napkin opinions by the court saying, OK, hey, this is happening. You don’t know who has written it often. There’s no real coherent idea of what the reasoning is. There’s just an order and an outcome. But I think they doubled down on that because then they start referencing their other COVID cases right there, like not just slightly changing the Religious Liberty Doctrine, which happens on the shadow docket, but they’re also saying, Damn it, why aren’t you reading our other three COVID cases like? And they reference them as though those were fully argued and fully explained. And so it’s a weird house of cards where building on prior, unsigned, unexplained orders, they’re saying California, you should know better. And one of the things that’s worrying, in addition to everything I’ve just said about, you know, we don’t have full briefing, there are no arguments. We in some cases it’s not clear whether there were three votes, four votes, five votes. We don’t know what the voting array is. But if the court is actually changing doctrine on the shadow docket, then it really flies in the face of and this goes back to where we started. The one thing the court has is the power to show its work. And if the court isn’t showing its work, if it’s not explaining why it’s doing what it’s doing, it looks like an exercise of raw power. And that, I think, is the worry about the shadow docket that to go, you know, to these monstrous numbers of cases just this fall alone on the shadow docket, not just was SB eight not enjoined Mary, but the Remain in Mexico policy was reinstated. Biden’s eviction moratorium was struck. And so you just can’t do huge, consequential things that affect the lives of millions of people and do it at midnight without any clarity of reasoning.

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S1: Well, you can apparently. I wonder a little bit because I feel like the shadow docket is where you really see the court being political, especially because of how on this emergency docket, the justices have talked about religion. You see a real flexing of power there in those COVID cases where the justices basically said, we don’t think that religious institutions should be bound when it comes to COVID in terms of limits on gathering. I wonder a little bit if you think the problem with a docket like this is that the court is political or that it’s kind of trying to hide its political leanings. Because by putting this on the shadow docket, the cases aren’t reported in the same way as something that went to oral arguments, and they’re not tallied up at the end of the year as like, well, how many cases came down in favor of the conservatives versus the progressives, you know?

S2: Yeah. I think one of the things that I saw happen this fall around, certainly around remain in Mexico and the eviction moratorium and then doubled again over SB eight was people Googling. What is shadow docket like? I think the public started to say, Wait, what they decide stuff in September at midnight. That seems funny. And I think people just didn’t know. And again, I want to be really clear there’s always been a shadow docket. This is how a lot of like death row cases get processed at the court. In the hearings, the Senate hearings about the shadow docket on Wednesday, Ted Cruz was like, There’s always been a shadow docket. I remember getting faxes from death row. Yeah, there have been. There’s no question the question is, like you say, when they’re doing things that seem to inflect deeply on these questions, these really hot button culture war questions like religious liberty or abortion. And they’re doing it. And we don’t even know who wrote the opinion, much less what the logic is, how it controls future cases. There are judges out there, Mary who are trying to understand how to apply this as law. And I think that starts to look exactly like what you’re describing, which is just really results oriented, power grabs. And maybe the very coda to that coda is that it’s also the court deciding for itself, arrogating for itself, the power to decide what an emergency is, but who

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S1: has the power to say to the Supreme Court, you can’t do that anymore?

S2: My friend. So here we are.

S1: I mean,

S2: the power to say to the Supreme Court, you can’t do that anymore belongs to the public. That’s the Federalist Papers, right? That’s the court is the weakest branch. It has neither the power of the purse nor the sword. If Congress voted tomorrow to take all the toilets out of the building and shut off the lights. Congress could. The court does not have an army.

S1: Yeah. I mean, I kind of wonder what the end game is here, because at a certain point, states could just decide they’re not going to enforce that. Like, I think I don’t actually agree with what the Supreme Court said there. And then we’re really in a pickle.

S2: Well, again, I think, you know, this was Professor Vladeck, I should get royalties for every time I’ve said his name, of course, but one of the things he tried to say in his Senate testimony was Please don’t belittle the concern by saying you just don’t like these outcomes, right? You just don’t like having COVID restrictions shut down or you just like abortion. Because the point is that what Texas did was nullify federal law.

S4: I don’t count myself a pessimist, Mr. Chairman, but it’s hard to look at these developments and be especially optimistic about the future of our legal institutions. It’s the Supreme Court, not state legislatures, that gets the final word as to what the Constitution protects. And it’s the court’s obligation to do so through principled decisions that adequately and consistently explain themselves. And maybe.

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S2: And I think that that at the heart of Chief Justice John Roberts, you know, doesn’t vote with the five conservatives on SB eight and peels off and dissents. That’s his fear is you have just let Texas kind of spit in the face of this court’s authority and its seriousness and its ability to speak in one voice about what fundamental constitutional rights are. And if we allow this to happen, it can’t happen like this. And I think that’s his concern. It’s always his concern for the dignity and the esteem of the court. There’s something really deep going on right now.

S1: Dahlia Lithwick. Thank you so much for joining me.

S2: Thank you, Mary. This was more meta than usual.

S1: I liked it that Dahlia Dahlia Lithwick covers the courts and the law for Slate. She hosts the excellent podcast amicus. After Dahlia and I spoke, Samuel Alito became the next Supreme Court justice to speak out, proclaiming how apolitical he is. In a speech at Notre Dame, he called out critics like Professor Vladeck by name. And that’s the show. What next is produced by Elaina Schwartz, Davis Land, Danielle, Hewitt, Mary Wilson and Carmel Delshad. We are led by Alison Benedict and Alicia Montgomery. And I’m Mary Harris and go track me down on Twitter. I’m at Mary’s desk. Talk to you tomorrow.