S1: This ad free podcast is part of your Slate plus membership.
S2: We’ve done the six week ban, we’ve done this down, we’ve done that Vanina. We’ve been in constant litigation for the last decade or so against these restrictions.
S3: I think the Supreme Court hides a lot of mischief in plain sight.
S1: Hi and welcome back to Amicus, Slate’s podcast about the Supreme Court, the law and the rule of law in the courts. I’m Dahlia Lithwick. I cover those things for Slate. And as we round up on the month of June, we’re getting to that time of the year when big, big decisions rain down from the highest court in the land. And even before all those decisions come raining down, this past week saw an absolutely huge grant of certiorari in an abortion case for next term. We are watching a Supreme Court that allegedly had meant to stay out of the headlines until after the midterms. That is actually now gobbling up the headlines. And the question remains, why is the court taking such big swings and will it matter? Later on in the show, we’re going to talk to two of the sharpest court watchers out there, Senator Sheldon Whitehouse, who has been bird dogging questions about dark money and influence at the court for as long as we’ve had a show. And Vox columnist Ian Millhiser, whose new book, The Agenda How a Republican Supreme Court is Reshaping America, examines the connection between conservative activism at the Supreme Court and the erosion of representative democracy. In other words, we’re going to talk a lot on this show about how that sausage gets made and what we’re not seeing when we’re not looking hard enough at the courts. And Mark Joseph Stern is back. Slate plus members have access to a special bonus segment at the end of the show that will dig deep into all the Supreme Court and indeed other federal court happenings. We can’t quite cram into the main show. But first, this week, the court surprised many of us, and that certainly includes me by granting review in Dobbs vs. Jackson Women’s Health Organization. That’s a challenge to Mississippi’s 15 week abortion ban. It’s a pre viability standard that really stands as a direct hit on challenge to the core holding of Roe v. Wade. Now, we have talked so often on this show about how the conservative six to three supermajority at the new Roberts court just wants to do away with Roe. I don’t think we thought it would happen this directly or this soon. So here’s me telling you that when the case is heard next fall, we will do a deep dive on the precedent and the doctrine. We will get into all the weeds of all that. But today, we just really wanted to hear from people on the ground. To set the table with what’s at stake in states where clinics operate in the face of mounting restrictions and in states where there’s really only one remaining clinic at all. In addition to everything else, this week, Texas Governor Greg Abbott signed into law a bill that bans abortion. The moment of fetal heartbeat has been detected at around six weeks. And while there’s no exception for rape or incest. The bill includes an astonishing provision that allows individual citizens to sue anyone they believe may have been involved in helping a pregnant individual violate the ban. Joining me to talk about the current realities of reproductive health care in this particularly regressive moment are Tammy Chromed A.. She is the clinic director of Red River Women’s Clinic in Fargo, North Dakota, the only abortion clinic in that state. She has been working in abortion care since nineteen ninety three. Amy Hagstrom Miller is founder, president and CEO of Whole Women’s Health LLC and founder and president of Whole Women’s Health Alliance. In June 2016, the US Supreme Court ruled on whole woman’s health vs. Heller said in a landmark decision that actually set national precedent overturning HB two in Texas. Amy, Tammy, welcome to Amicus. Thank you for being here.
S4: Thank you. Thank you.
S1: So, Tammy, let’s start with you. Can you tell us a little bit about the kinds of services that you provide at Red River Women’s Clinic, what it is that you do? Sure.
S2: At Red River Women’s Clinic, we are the only abortion provider in the state of North Dakota. We also provide abortion care to patients coming from South Dakota and northwestern Minnesota. So we provide both medication and in clinic suction abortion from the first positive pregnancy test, up to about 16 weeks, depending on the physician who’s scheduled. We also provide all methods of birth control. And, you know, it’s just very important that we’re here, that we see patients from this region and we’re the closest place for a lot of folks out of a three state area.
S1: Amy, same question. Do you want to just talk a little bit about what happens at all? Women’s health
S4: clinics? So whole women’s health manages nine clinics in five different states. And we focus our work in the Midwest and the South where the restrictions and political interference to people’s access to abortion is the greatest. And our clinics offer full range of abortion care services from abortion with pills through in clinic abortion. We offer care to the legal limit in most of the states that we’re in. So some states we go to 18 weeks. Other states we’re able to go to 24 weeks. We also offer contraceptive care, ultrasounds, sort of pregnancy decision counseling, long acting, reversible contraceptives, et cetera. And we do work also in the community doing education, advocacy and communications work to hopefully disrupt and shift the stigma that surrounds abortion in this country.
S1: I guess I wanted to ask both of you how the news this week dropped in terms of what you were seeing, what women around you were saying, what the feeling was on the ground, as you heard what we were hearing and really legalistic terms you were hearing in really practical terms.
S2: This is Tami. You know, we first heard from our attorneys at the Center for Reproductive Rights that the case had been taken up by the Supreme Court. And so it’s always reassuring to hear from the attorneys. Honestly, I don’t think it’s registered with the patients that we see I with the pandemic and the changes we’ve made because of that. And people already feel like abortion is scarce and difficult to get in the area that we serve. I think people already half the time think it’s not available and not legal. So a case out of Mississippi that maybe restricts that at 15 weeks, maybe that’s all they hear. They don’t hear that it’s necessarily a threat to their care here or to the week that they’re at. So I’m not hearing anything from the patients we serve. It might be that it’s just too soon. It hasn’t really sunk in. Our staff, of course, reacted to it, but it just seems like it’s been an onslaught for so long. It’s just another attack on Roe, you know, in the Supreme Court took up this case and then Texas passed their six week ban, which North Dakota did in twenty thirteen. You know, just like here we go again. Yeah.
S4: This is Amy with Whole Woman’s Health. And, you know, for us at whole women’s health, it was a really bad week. Not only did the Supreme Court decide to take up the Mississippi case, we’ve been watching the Fifth Circuit really closely. Whole Woman’s Health has a case sitting in the 5th Circuit where we have challenged the ban on Denise in the state of Texas.
S1: Amy, can I have you pause and explain what it did?
S4: Sure, so DNA is an abbreviation for dilation and extraction, and it’s the safest, most common method that’s used for terminating a pregnancy that’s in the second trimester. And so we we watch the Fifth Circuit pretty closely. And we knew any one of these cases could be the next case that the Supreme Court took up. And so that happened in the same week that Texas passed a six week ban. And so it is actually on the minds of a lot of the people that we serve in Texas. It’s on the minds of our staff. We are already getting quite a lot of phone calls because, you know, most people who may need abortion services don’t pay attention to the politics, don’t pay attention to the legislature. I mean, I think one of the unique things about abortion is nobody ever thinks they’re going to need one until they do. And so what we have is a you know, all the patients are calling hearing the words abortion ban, whether it’s a 15 week ban or the six week ban, what they hear is abortion ban and they’re worried it might be illegal. They’re worried they’re going to have to cancel their appointments. And there’s quite a history of that in Texas. You know, as recently as a year ago when we had the executive order from Governor Abbott, it did disrupt abortion services in the state of Texas for upwards of three weeks there. It was basically like an abortion ban. And so it’s really present and current for a lot of people in Texas. And, you know, for many of us, it’s it’s pretty triggering. Right, because this sort of clinics are open, clinics are closed, abortions accessible. Abortion isn’t is unfortunately a real roller coaster that the communities have been through in Texas. And also the the folks working in abortion clinics and providing abortions have really have really been through over the last few years. So it’s been a it’s been a rough week.
S1: Tammy, you mentioned the ways in which the pandemic has been kind of a further factor in the services you’ve delivered in the past year and a bit and I wonder if you could just talk for a minute about, you know, even if we bracket the news of this week, what you’ve had to do differently around covid and how that’s impacted your patients.
S2: You know, interestingly enough, when Amy was talking about the covid ban on abortion services in Texas, we actually had a patient from Texas who had a family member in our region and was going to travel across the country and receive her abortion in North Dakota. And so, thankfully, because of my connection with Amy, I was able to keep on top of the news and was able to get that patient seen at one of Amy’s clinics in Texas. And the patient was very grateful that, you know, they didn’t have to travel all the way across the country just to receive an abortion. But our medical director was very, very on top of covid and the warnings that were coming and the concerns. And at one point, North Dakota, unfortunately, was leading the nation and covid cases. And folks here are very libertarian. And, you know, I’m not going to wear a mask. And but when you are running the only clinic, you get to dictate the rules to patients and they have to follow those rules in order to get their abortion care. So we’ve drastically changed how we deliver the care. And believe it or not, a lot of independent clinics have talked about trying to be as efficient as they can and as patient centered as they can. And we thought we were. But then when the pandemic hit, we learned that we actually could do it better, more patient centered. So just things like doing more pre appointment phone calls to explain the procedure, cutting down on the time that the patients in the clinic, which is a patient’s most paramount worry, you know, they have to travel four or five and six hours. One way to get to our clinic, you know, and that’s time off of work and dealing with day care. So just doing pre appointment phone calls, cutting down on time that patients are in the building, you know, all the PPE that staff are wearing and patients are wearing and for a while kind of restricting in clinics suction procedures because the medication abortion allowed us to see patients quickly get them through the building in a more efficient manner. And then the hardest thing for patients in regard to medication abortion was usually, again, when you’re seeing patients from so far away, you provide the aftercare by some blood tests that they, you know, get a second blood test in their community at home. While we’re thinking we don’t want to send them into a clinic, you know, in their community at home, they might not be able to go there. They might not be able to get that blood draw. And you don’t want to be sending people into health care centers, which might be dealing with covid outbreaks. Then we have to think we do see a fair number of Native American patients at our clinic and working with some of those folks who had reservation curfews, the the non ability to even leave the reservation and having to work with some organizations that could help advocate for those patients so that they could get off the rez to come to their appointment and then dealing with the confidentiality of that. So it’s just been a lot. There’s been good there’s been not so good. But I think overall, you know, we’ve been able to continue to deliver the care that patients need. We didn’t miss a step. Patients were still able to receive an abortion in North Dakota. And then we picked up the slack when the clinic in South Dakota was unable to provide abortion care. So we’ve been able to continue to provide care in the Dakotas, and I think that’s the most important part.
S1: Amy, you mentioned the six week ban in Texas. And I said in my intro that it has this provision that allows anyone and everyone to sue anybody in any anything that is implicated in helping someone get an abortion. Can you talk briefly about how rare that is and the implications for you as a provider?
S4: Sure. So this is a new strategy by the anti-abortion movement to get a six week ban to stick somewhere. Right, because a six week ban is blatantly unconstitutional. And so this is a strategy for them to see if they can have it actually take hold, because in the past, they have had the state as the enforcer of the six week ban, which has allowed abortion providers to bring a lawsuit and. Get an injunction to block it from going into effect. So here what they’ve done is they’ve created this private cause of action where any random citizen and I like to describe it, you know, think of the protesters out on the parking, on the sidewalk outside the clinic. Anybody can bring a lawsuit. And can you make just a claim that abortions are being provided illegally according to their impressions? So people without any legal training, without any medical training, with very biased sort of political leanings can file lawsuits. And so in some ways, you know, on the legal side, what this does is it makes, you know, who do we sue in order to block this from going into effect? A moving target very challenging for the best and brightest reproductive rights attorneys to figure out, OK, how can we block this from going into effect? What what is the mechanism for doing that on our. And unfortunately, it gives the anti-abortion folks another tool and a scary tool that’s connected to criminal penalties and a fine, et cetera, to use to continue their disruption, their terrorism, their harassment and their surveillance of abortion providers and of people who help people get access to abortion services. So we’re talking about like clinic nurses, clinic staff. We’re talking you know, it’s written so broadly that it can mean anybody who helps somebody get access to an abortion could be somebody could file a lawsuit against those people. So, you know, like the Uber driver who brings the patient to the clinic, the doctor who refers to whole woman’s health from a different medical practice. Somebody is faith leader who they may go to for consult about what should I do with my unplanned pregnancy. Can you help me make a decision, an abortion fund who might help somebody pay for their abortion? And so, you know, I think for some people, this seems sort of abstract and random. But for us, it’s super obvious what’s going to happen, because we already have a system that’s kind of invisible to the public, where anti-abortion folks make use of the regulatory system to police and harass us. Already they file false claims, they make crazy accusations, and they use the different governing bodies to, one, try to disrupt services in the clinics to trigger inspections that we have to sort of prove that the things they accused us of aren’t actually true. We’ve had these things happen from like protesters in Fort Worth accusing us of not complying with covid regulations, social distancing, not complying with the EO, and then it triggers health department inspectors to come in and like, you know, go through our whole processes. And even if we are, you know, excused from these accusations, even if we prove that none of them are actually true, which always happens the way it puts the staff on the defensive, the way you feel surveiled, the way you feel harassed and accused creates this really incredible work environment. I mean, we’ve had protesters accuse us in Fort Worth of not having a water heater that was large enough to be adequate for the number of chairs in our waiting room. It sounds nuts, closes for three days while we had to get inspected by the city and prove that actually the water heater was adequate and we were able to see the patients on the schedule. They will stop at nothing to try to stop abortions from being delivered safely in the clinics in Texas by any means necessary. And this gives them not only another tool to use, but one that really ratchets up the fear and intimidation and has a ten thousand dollar fine attached to it. And it can be for anyone, a mom, a boyfriend, a best friend, anyone who’s conceived. You know, we’re calling it people who help someone seek an abortion. Actually, the way the law is written, it says someone who aids and abets in the commitment of an abortion. So already they’re framing abortion as a crime. Instead of saying providing abortion, they’re they’re saying commit an abortion. I think we have to pay attention to this language in this framework that they’re using.
S1: I’m listening to the two of you. And what I’m really struck by is the way in which in constitutional law land. This was an earthquake week. Everybody said this is it, right. Shot across the bow beginning of the end. And yet I’m hearing such weariness in both of your voices. Both of you just see this as another zig zag on a decades long effort to shut you down by whatever means necessary to incrementally chip away at how many people can see you and for what. And so I’m trying to align my lawyer head with your caregiver, your caregiver faces that I’m seeing on this zoom and I. Wonder if you can tell me how much this registered as this is just the beginning of the end and how much it registered as this is just more of the same, and I am so numb to it that I don’t process it as a big deal.
S2: Tammy, Amy and I agreed many years ago to not compete with one another on who had it worse and whose state was going to legislate the other, because it’s it’s not a it’s not a race, it’s not a competition, and it’s not a fun competition to try to win. I think the pandemic has added a whole other layer to how people are responding to it, I think with people being more at home. Of course, the week that this came out, you know, vaccinated people can go MASSOLA So that was actually, I think, kind of the bigger story. And people are looking around and trying to reassess where they feel about that. But it does kind of feel like it’s the continual onslaught of chipping away. You know, we’ve done the six week ban. We’ve done this ban. We’ve done that ban. You know, we’ve been in constant litigation for probably I think the doctor and I determined we had a one to two year break at one point. But otherwise, we’ve been in constant litigation, as has Amy, for the last decade or so against these restrictions. And the bottom line is patients still need the care. They still want an abortion, they still need an abortion. And but we are plucky independent providers who will do our best to continue to provide the service in whatever hostile manner and space that we need to, because we talk to these patients, we know what they need. And if we have to hop over a state line to, you know, a state that’s not as hostile as the ones we’re in, you know, maybe that’s what we’ll do. But we’re going to keep on fighting and we have to because we know it’s what the patients need and want. So, yeah, I’m tired. I’m burnt out, but I keep going and the patients keep me going.
S1: How about you, Amy?
S4: Yeah. So many things that I can respond to from what Tammy said. And I think, you know, I think there’s nobody you’re going to find in life that’s more resilient or innovative than an independent abortion provider in the Midwest or the South. And I think that’s our blessing. And a curse, right, is that we continue to find ways to stay open to, you know, do what I call loophole archaeology and try to find these paths. And it really comes from our deep commitment to human rights and justice, which brought most of us to this field and that we’re so committed to providing abortion care services. And I think it’s important to note that these laws don’t do anything to change the need for abortion. There’s no strategy here to reduce unplanned pregnancy. What’s happening here is that they’re just cutting off people’s access to safe abortion care services from trained medical professionals. And there are so out of step with the majority of the public that I have to have hope. And, of course, an abortion provider in the south is like, you know, hope is our jam because what else do we have? Right. And so, like, the arc of justice is incredibly long. But when I look at how out of step these laws are with the public beliefs and the feelings and beliefs of the majority of people in this country and how the pandemic has really shined a bright light on the essential health care that abortion care services are and all the reasons people need abortion care services are even more poignant during this pandemic. People have lost their jobs, they’ve lost their health care. They don’t have child care. Their kids are home. They’re not in school. I mean, it it’s, I think, created this opportunity for compassion and empathy where people can see health care disparities in ways that they were blind to in the past. And people understand that sometimes things happen to you and you deserve our compassion and our care and not our judgment. And so I have some hope that they have gone too far here. They are the minority, but they are in power. I mean, look at the people who stood behind Governor Abbott when they signed the six week ban. Look at the law we just had to challenge in Indiana. That requires us to tell every single patient that abortion can be reversed. It’s nuts, right? If we should say when we figure out a way to challenge SB eight at Whole Woman’s Health, working with the Center for Reproductive Rights, it will be our sixth current lawsuit. It would be the fourth one we’re involved in in Texas and we’re involved in two in Indiana. And so this litigation strategy is part of the work as an abortion provider in this country. It’s also one it’s a lot of work. It’s real different than health care. Right. Being Tammy and I’ve both been through this, you know, being prepared to be a plaintiff, going through, you know, all the sort of process you have to do to be prepared to be a witness going through depositions and declarations. And it’s super intense human rights work, but it is the work of our time and it is the commitment that we have, because when we can see tangibly the effect that we have on somebody’s life and really making their ability to choose a course for their life and affirming their autonomy and their freedom and their equality, it’s everything. It’s everything.
S1: I think that Amy made a point that I think we forget, which is all the polling shows that these trends are going the wrong way, that Americans do not want to see this happen. And yet, you know, this is not a majority rule question at this moment. I wonder if I can ask each of you, again, as providers on the ground what listeners who care who are upset and worried and really feel panicky this week about reproductive freedom and reproductive justice, what they could do to help you do your work? Amy, you want to start
S4: a lot of times? My answer to that question is, is twofold. One, it’s to talk about abortion as a moral good, to acknowledge that every one of us know somebody and love somebody who has had an abortion. And to think about how would we want the abortion experience to be for somebody that we love. So make it personal and and don’t abstract the need for abortion and the how you would want that to be for somebody that you love. And then second to that, if you have the means to to make donations to abortion funds and to those of us who are working in abortion clinics in the Midwest, in the South, who are trying to fight lawsuits, many of us plaintiffs don’t have the kind of funding that other organizations do. And so, you know, any way that you can support independent providers, support the small folks in the communities who are running clinics like Tammi’s and clinics like mine, who don’t necessarily have the giant fundraising mechanisms that other folks do. So look for your abortion funds, look for your abortion care network, which is an organization of independent providers in the country that has a fund that’s called Keep Our Clinics that people could donate to that helps abortion clinics be able to make ends meet. And with legal aid kind of funds and support.
S2: Tammy, I think Amy summed it up really well. Those are all the points I wanted to make. The other thing I would say is you really do educate yourself on who your local provider is. You can also go to the Center for Reproductive Rights, has some great tools about what if Roe fell? And you can look at the states that are most at threat and then look at the states that are most at threat and then go to the Abortion Care Network site and find the clinics that are located there. They often are independent clinics who are on the front lines in the most hostile states, doing the most legal work to help keep access available in those places. So, again, local funds, abortion care network, you know, I hate to say this, but, you know, reaching out to your local clinic is sometimes just another thing that we have to do. So, you know, show up an escort, find out what the escort program is like, because along with these laws, there’s been more hostile folks out in front of our clinics. There’s been a lot of really scary incidents across this country. There was just a shooting in Texas, I think last weekend. There was an accidental shooting in North Carolina within the last month or so. So just show up and be an escort, find out how to do that, and just let those local indie’s know that you’re there and you’ve got their back. Because one letter we know represents, you know, 10 people write a postcard to the clinic, to the staff, find out if they if the staff will accept a donation of food staff, love chocolate, you know, find out those things that you can do that make a difference and let the folks know it in those clinics. They’re seen and they’re heard.
S1: Tammy Colmenar is the clinic director of Red River Women’s Clinic in Fargo, North Dakota, it is the only abortion clinic in that state. She’s been working in abortion care since 1993. Amy Hagstrom Miller is founder, president and CEO of Whole Women’s Health, LLC and founder and president of Whole Women’s Health Alliance. In June 2016, the Supreme Court ruled on whole women’s health vs. Heller that friends, thank you for being here. I know this week has been both hard and more of the same, and I really can’t thank you enough for taking a little bit of time to help us see what you’re seeing. Thank you.
S4: Thank you. Thanks, Dahlia.
S1: So on to this question of the court and democracy, nothing big, it’s always a little bit complicated to draw a straight line between untraceable money, interest groups, voter suppression, efforts to pack the court, and the ways in which democracy itself is being swallowed up from the inside out. That is, of course, by design. The more confusing it all is, the less exigent it will appear. Both of our guests today have been working literally for years with flip charts and string boards to try to show Americans that the slow erosion of democracy happens not just with capital riots, not just with Georgia voter suppression bills, but in a million tiny moves around campaign finance and secret donors and big business and the courts. Senator Sheldon Whitehouse is the junior senator from Rhode Island, where he has served since 2007. Before that, he served as Rhode Island’s attorney general and a U.S. attorney. In February, he was selected to serve as chairman of the Senate Judiciary Subcommittee on Federal Courts Oversight Agency Action and Federal Rights. Ian Millhiser is a senior correspondent at Fox, where he focuses on the Supreme Court, the Constitution and the decline of liberal democracy in the United States. His new book, The Agenda How Republicans Supreme Court is Reshaping America, was published this past spring by Columbia Global Reports. It is out now in audio book via Penguin Random House. Welcome, Ian. Welcome, Senator Whitehouse.
S3: It’s good to be here.
S1: Thank you. So, gentlemen, I feel like I should open by saying that both of you do this immense amount of the same work, which is trying to surface really arcane technical aspects of the courts and the Supreme Court, issues that seem like angels dancing on the head of a pin but actually matter immensely. And then you kind of wave your arms around and try to explain to people why they should be paying attention. So just to set the table. I wonder if I can start by asking why it is that so much of the work you both have been doing for so long is about processes and pipelines and buried footnotes. And maybe we can start with you, Senator.
S5: Well, if you look back to history, I wrote my own book some time ago called Captured in the Frontispiece or whatever you call it, at the very front where you can put a quotation. I put the quotation from James Madison that there are more instances of the abridgement, of the freedom of the people by gradual and silent encroachments of those in power. Then by violent and sudden usurpations, what we’ve just been through, the violent and sudden usurpation of January six, which failed, thank goodness, and that got a lot of attention and I just feel honor bound to try to draw attention to the gradual and silent encroachments of those in power, because once you actually start to see the system at work and you see the pieces in the parts and how they connect, what you’re basically looking at is that what the intelligence community would call it, covert ops. It’s a giant covert op being run by a group of primarily fossil fuel interested billionaires, but a few others against their own country because they want to, by virtue of their great wealth, dictate what the country is like and voters are an impediment to that and unfortunate interference. And so they’re working the system to try to diminish democracy as much as possible and give themselves the silent or quiet reins of power. That’s not America, so that’s why I fight this,
S1: and I want to ask you the same question, it feels like there are big chunks of your book devoted to, you know, abstruse doctrine around chipping away at agency power. But it’s really important, I think, for you in a book about democracy kind of hanging by a thread to go to these very, very abstract doctrinal places.
S3: Yeah, I mean, I think the Supreme Court hides a lot of mischief in plain sight. I went to law school for three years. I’ve spent the better part of the last decade studying the Supreme Court. And often, like I read an opinion at it takes me a while and like a lot of additional research to figure out, OK, like what actually does this mean? As you mentioned, I spent an entire chapter of my book discussing the so-called administrative state by just using those words. I feel that I’ve put all your listeners to sleep. But what if the chapter is actually about is that five justices led by Neil Gorsuch, have embraced a plan that, among other things, would potentially dismantle the Clean Air Act and the Clean Water Act. And like they don’t say in any of their opinions. Well, we think it would be great if there was more arsenic in our water supply. Like they don’t say that. They don’t say we want people to be breathing more mercury. What they say is things like, well, you see the article one of the Constitution gives the legislative power to Congress and that places strict limits on the ability of Congress to delegate people. And under the non delegation doctrine, and unless you have spent years studying this stuff, you have no idea what any of that means. And so not only are they engaged in a very aggressive and very radical policy agenda, but it also allows them to avoid political consequences for you know, I think that if the Republican Party, when it controlled Congress in twenty seventeen or twenty eighteen, had tried to repeal the Clean Air Act, they would have paid a political price for that. But I doubt they’re going to pay a political price when their justices effectively dismantle much of our environmental law because no one’s going to realize what happened. Yeah, there
S5: weren’t a lot of Republican senators who were going to vote to let unlimited dark corporate money into politics. But you get the right judges on the court and you tee up the right question for them. And boom, unlimited dark money is the way of our politics.
S1: So, Senator, you’ve always talked about this connection between dark money and this pro-business Roberts court and conservative outcomes. You’ve kind of focused on that for a long time. But in the last few months, you’ve really opened the aperture and tried to shine light on issues ranging from improper judicial fact finding, who’s funding amicus briefs, where that money is coming from, asking Justice Amy CONI Barrett to recuse in a case involving a nonprofit with ties to a group that gave money to to get her seated on the court. And I wonder, I know they’re all a piece of the same thing, but I wish you could sort of help listeners who might see these kind of isolated pinpricks of what it is you’re doing as as not connected, helped bring it all back to what it is that you’re sort of basic theory of the anti-democratic push of the court really is.
S5: So the basic theory is that if you want to capture American democracy, the best way to do it is by capturing the Supreme Court because nobody can throw them out when they do crazy stuff. If you’re even if you’re Mitch McConnell, if you do something horrible enough, the voters of Kentucky are going to throw you out. And he has his own limits. But if you’re a lifetime member of the Supreme Court wearing those black robes, you’re bombproof and therefore you can do kind of whatever you please. So from a capture point of view, that’s a really sweet target. And then you just look at the ways in which they’ve done it. They run tens of millions of dollars into the Federalist Society at a time when the Federalist Society has an operation within it that mans the turnstile that determines who gets on the court, in effect, selecting Supreme Court justices. And they chose the last three. Then you’ve got to sell them like a product, which means tens of millions of dollars in TV advertising in swing states. You’ve got to raise the money for that. You’ve got 15, 17 million dollar contributions. Somebody writes a check for 15 or 17 million dollars. Don’t know who they are. Probably the same people who funded the Federalist Society turnstile. Now you’ve got a court that will do it more or less what you want. Now you’ve got to tell it what to do. So now you’ve got to have a whole phalanx of what they call Mecurio groups, friends of the court who will come in and. File briefs, we know that they coordinate, we know that they orchestrate and you come in and you produce a fake public statement by a dozen seemingly separate organizations, which all just happen to be funded basically by the same billionaires that put the judges on the court. And they provide a final function, which is they figured out how to put a fastlane in so they can pick a case or create a case more importantly, and then rush right into district court and say, quick, your honor, rule against me, I want to lose. And as soon as they get the judgment that they lose up to the Circuit Court of Appeals. Quick, Your Honor, we want to lose. And as soon as they get that judgment, jump up to the Supreme Court and the Supreme Court acts like they can’t see that. Something weird is going on when litigants are going into trial courts and saying we’re here to lose. But of course, if your goal is not to win, but rather to turn the Supreme Court into this captured political operation, you’ve got to feed it the questions that you want it to answer. And so you develop this high speed lane and all of that is paid for by a very small group of very big donors. And it’s just wrong. It’s rotten to the core.
S1: So, Ian, I want you to reflect and amplify on what the senator just said. And I just want to throw in one other data point, which is that some of these very same groups that had been working really hard to seat certain kinds of judges on the court pivoted to vote suppression really seamlessly. So part another piece of this is the part of it that you write about so much in your book, which is kind of the fragility of the vote itself. So do you want to kind of react to what Senator Whitehouse just said and then maybe lash it to some of the work that you’re thinking about in terms of the vote itself and democracy itself?
S3: Sure. So, like, I think what’s so frightening about this operation that the senator just described is that a significant amount of it is devoted to identifying people who are real, true believers. So like the Federalist Society, if you are like a first year law student at Harvard or Yale and you’re really conservative, they will identify you pretty fast. And like especially if your grades are good, they’re going to start getting you job opportunities really, really fast. But part of the genius of the system is like I mean, there’s a lot of money and there’s a lot of corruption and there’s a lot of lawyers who are filing really sketchy briefs because they’re paid a lot of money to do so. But I actually don’t think that the justices are corrupt. Like, what’s nice about corrupt people is that if you stop bribing them, they stop doing the terrible thing that they’re being bribed to do. The problem with someone like Brett Kavanaugh is he actually believes this stuff. He he will do it for free and he will keep doing it no matter what you do. And so you’ve got this entire operation that is devoted to the process of identifying these true believers, getting them in power, letting them wield that power, you know, giving them instructions on, hey, here’s a useful way that you could wield the power that we’ve already given you. All of that happens. And then, you know, the other thing that I’ve noticed is that, you know, like you said, the whole operation is inherently hostile to democracy. You know, like the premise of any democratic republic is that the vehicle in which we choose how our policy is going to be made is elections. And if you don’t like the policy that exists right now, you vote for someone else. And this whole process that I’ve described of identifying true believers, getting them into lifetime positions where they wield enormous power is about bypassing the democratic process. And, you know, it shouldn’t then be a surprise that once you install these people who are there to bypass the democratic process, they do things like strike down much of the Voting Rights Act or hand down a decision like Citizens United, which makes it even easier for well moneyed groups to manipulate the system. Because, you know, I think once you lick the lollipop of minority rule, you suck it forever. Like, you know, once you decide it’s OK to do these kinds of things, then like you’re not necessarily going to be the sort of person who draws a line and says, oh, well, wait a second, getting rid of the Voting Rights Act, that’s too far.
S5: One other tool that you hit on Dolia is that they jump from issue to issue. And depending on. The issue what you see is that they’re always on the big, dark multibillionaires side of it. So some of these groups were heavily involved in climate denial and at the same time really interested in getting so-called conservative judges on the Supreme Court, where there’s not a big area of academic inquiry in which climate denial and conservative judges on the court are a thing for the same person. So the fact that the same people are doing it tells you something about who is behind it. And the latest clue on that was the move of the court packing crew over to voter suppression. So, Leonard, Leo is out there, he’s kind of the spider at the center of the court packing web who’s been organizing all of this? He’s been organizing the Federalist Society turnstile and he’s been coordinating with this judicial crisis network, which pays for the advertisements. And then suddenly all the fun goes out of that because Joe Biden gets elected and he sees that the Trump polling stinks and he gets outed by The Washington Post for having a 250 million dollar court packing operation. So he’s like a burned agent. So what does he do? He jumps and the next thing you know, he turns up at the head of something called the Honest Elections Project. Now, he’s not doing court, getting conservative on the court, how he’s doing voter suppression. OK, how does that connect with conservative judges? It doesn’t, except that there are things that the same piece of billionaire funded machinery want. And so now he’s over there. And if you want to have a second little laugh, this is laughable. The Honest Elections Project is the corporate alienists of a group called the Judicial Education Project, which is the Judicial Crisis Network in other corporate skin. So you have this so-called honest elections project, which is also. If you pop a couple of corporate veils, the Judicial Crisis Network, which was paying for the ads for the Supreme Court judges and all of that is just enough behind the scenes that most people don’t really pay attention to it. But when your big interests are right wingers on the court, stopping climate legislation and preventing people of color and Democrats from voting, there really isn’t an academic specialty that covers all those areas. The vectors of those lead purely to special interest land.
S1: So actually, this brings me to something that you both think about in really interesting ways. And that is kind of transparency and disclosure and how it’s hopped into conversations about First Amendment free speech and cancel culture. And I’m looking at you on the Zoome, Senator, because I just The Wall Street Journal, like, every time you do anything, The Wall Street Journal just takes out a brickbat and goes after you for wanting to cancel free speech. And whether it’s, you know, your concerns about where these amicus briefs comes from or your interests in disclosure, I mean, what you are essentially saying is kind of a version of the old saw that sunlight is the best disinfectant. We need to know who’s paying for what. And that consistently is met with this brick wall of you hate free speech, Senator. And E I am thinking also of your recent write up of the Americans for Prosperity case, where you also talk about this issue of disclosure being conflated with cancer culture and how quickly we’ve turned on a dime. So maybe we’ll start with you, Senator Whitehouse, just because I do want to give you a chance to respond to The Wall Street Journal, but also the only cure for what you’re both describing is knowing what’s going on. And yet the same entities that are doing all this stuff are now saying you’re trying to cancel me.
S5: Yeah, well, first on The Wall Street Journal. They hardly have clean hands on this subject because they write opinions all the time, they have in every single editorial that I’ve ever read or anything they’ve ever published, inevitably taken the side of the polluters like the folks in the fossil fuel industry and the people who are funding this stuff. And when I did my Amy Barrett description of this dark money operation behind the court packing, one of the groups I focused on was a group called the Bradley Foundation. Well, turns out that the Bradley Foundation has this phony baloney Prius so-called that they give pretending that they like to have a Pulitzer Prize or a Nobel Prize and they give a two hundred fifty thousand dollars cash award and they’ve given four of them to people on The Wall Street Journal editorial page. So they’ve actually given them a million bucks in cash. I call out Bradley Foundation. Wall Street Journal jumps down my throat without bothering to disclose that they have taken a million dollars in cash from the group that I called out. So, you know, we’re in kind of a murky area of just punches back and forth on the free speech question. It’s ridiculous. I mean, I’ll salute. I’ll cite Scalia, who said that, you know, it’s kind of basic civic courage that when you stand up on the box in the market square to exercise your free speech rights, everybody sees who you are. You’re you you’re responsible for your views. And masked people and fake front groups simply aren’t part of a responsible democracy, and particularly not when they’re operating as a scheme, but dark money. The funding by these billionaires is what connects it all. So when I touch on this dark money problem, on this disclosure thing, it makes that whole machine vibrate and panic. And they go through this now ritualized effort to try to discredit what I’m saying. And, you know, you kind of laugh it off, except that it’s not all that much fun.
S1: Ian, you opened your Americans for Prosperity Foundation right up with that same Scalia quote about civic courage and disclosure. Do you want to just talk for a minute about the issue in the case and just how far we’ve come from even Citizens United when there was this notion that sunlight would be the one thing that could make sure that kind of it wasn’t corrupt all the way down?
S3: Yeah, I mean, like you’ll probably remember this weird moment a dozen years ago when empathy became a bad word. And like what happened there was President Obama said that he wanted to appoint judges who will show empathy, which is just the ability to get inside other people’s heads and understand what they’re feeling. And like Republicans freaked out at the notion that Obama would want judges who have empathy. And I think that this case really shows like why empathy is so important in a judge. So what what this case is about. Americans for Prosperity Foundation is this conservative group. I believe they’re closely associated with the Kochs and they are required by a California law. All nonprofits that do business in California are required to disclose their biggest donors and they don’t want to disclose their biggest donors. They claim that their biggest donors will be harassed or their business will be boycotted or whatever. And they have a bit of a legal hook to hang that argument on, which is that in nineteen fifty eight there was a case involving the NAACP and the state of Alabama wanted the NAACP to disclose its members and the Supreme Court rather sensibly said, no, you can’t make them do that. And the reason that you that Alabama could it make the NAACP disclose its members is because those members would be lynched, is because Alabama was was likely to turn those names over to the Ku Klux Klan. And so the Supreme Court has recognized, you know, rather sensibly, that while disclosure laws are generally valid, there are certain extreme circumstances where the courts need to step in and say, no, this disclosure laws should not apply here. What struck me about this oral argument is you heard from the right side of the bench of Roberts and Thomas, especially Alito, asking all of these questions that were basically framed as well in these really challenging times, like given these unprecedented threats to free speech and to political organizing that exist right now, don’t we need a more protective rule than we’ve had in the past to protect the poor donors to the Americans for Prosperity Foundation from, I don’t know, have their businesses boycotted or whatever? And like, I actually think this case. Presents some difficult questions, but like if you think that the Americans for Prosperity Foundation in twenty twenty one is facing greater threats, its donors become public than the NAACP faced in Alabama in 1958. You have a problem of empathy. Like, you know, the problem I see on this court is that people like Sam Alito, well, I don’t want to be too mean to them because, like, I’m getting older, too. And I think that Sam Alito is going through the same process that we’re all going through where you get older and you realize that like there’s an emerging culture that is different from the culture that you grew up in and the world is leaving you behind and it’s leaving some of your values behind. And I mean, I’m only 43, but I’ve experienced some of that, too. And it’s sometimes like it makes me sad, like I don’t enjoy it, but it’s not a political crisis and it’s not unprecedented. And if you can’t tell the difference between, you know, I am going through something that peep that every human being has gone through as they’ve grown old and as society has like come to different values, conclusions that I might not share if you can’t tell the difference between that. And we are facing an unprecedented political crisis where there has never been greater threats to free speech before, then judge is not the right job for you. You know, it it’s a job that requires you to have some understanding of history and again, to be able to appreciate that just because you are feeling something that you haven’t felt in the past doesn’t mean that is unique or there aren’t other people who have experienced much greater threats
S5: if you go back to the 1960s. A Virginia lawyer named Lewis Powell wrote a secret memo for the US Chamber of Commerce that you more or less quoted from. Just now, because the attitude and a sense of alarm and the sense of things out of control, attack on the free enterprise system, attack on American democracy and the rule of law. And it’s, you know, 50 plus years ago now, of course, that Virginia lawyer Lewis Powell wrote that report six months. Before he joined the Supreme Court as Associate Justice Lewis Powell and started working on cases like Vallejo and Baladi, which created the right of the corporations that he was advising as the secret memo writer, to do the things that he advised them to do was the secret memo writer, which was to get really involved in politics and particularly just look for opportunities in the courts, look for the opportunities for an activist minded court that can really help you work. So not only is what he said, you know, it’s generally true. You can you have a specific example of what he says Alito is going through in what Powell went through 50 years ago in those turbulent times?
S1: And Senator Whitehouse, do you want to add a layer to this discussion of Americans for Prosperity Foundation? Just on this question of when Clarence Thomas wrote against disclosure in Citizens United, he was alone. Now it’s a movement. Now, as Ian says, that is not a fringe position. The idea that disclosure, per say, leads to boycotts and harassment and threats. And I’m not sure folks even who listen carefully to this show realize how far we’ve moved in a really compressed amount of time on that issue.
S5: Yeah, well, they build this stuff. You know, surrounding all of this legal effort to control and manipulate the Supreme Court, there’s also a big effort to create doctrines that can then be fed to the court through that process. And so you can see these doctrinal shifts happen very quickly in the doctrinal sort of stewpot that the same billionaires pay for. But it’s really remarkable because Citizens United hung. On the question of transparency, the only reason that decision exists is because the majority that let the unlimited money flow could say there will be transparency and that’s what’s going to protect against corruption, because if there’s a danger of corruption or an appearance of corruption, Congress gets to legislate. And they didn’t want Congress to legislate. They want a Congress. They wanted a clear constitutional line for unlimited money. So they had to claim that transparency was that safeguard. Now, the first time you knew that that was a little insincere was when the first cases came up with people saying, oh, wait a minute, there’s actually not transparency. Are you willing to reconsider? And for a decade, the Supreme Court took none of those cases back up. We crossed through a billion dollars in anonymous political spending. You think that might be a benchmark since it happened on the front page of the newspapers, the judges who wrote Citizens United might have noticed, but they didn’t or pretended not to. And now they’ve gone from claiming that transparency is there and will be the protection to not enforcing their own transparency predicate for a decade to now, I think, being ready to reverse themselves. You’ve got Thomas, who was there already in the eight to one part of Citizens United about transparency. You’ve got the three new ones, all of whom came through a dark money funded turnstile in order to get there and presumably would have been vetted on this question. And you got, as you’ve mentioned, Alito, who is going to be eager to hop and make a majority of five for a brand new constitutional right for billionaires to run dark money, covert operations against their own country.
S3: I’d like to say a few words about Justice Thomas, because, like I think the phenomenon you described where he wrote this really out their opinion that no one joined and now it’s conservative orthodoxy is sadly a phenomenon we’re seeing over and over again. So like Thomas spent most of his time on the bench just sort of writing loony bird opinions that no one joined at, like he wrote an opinion in a case called Lopez, where he basically argued that all decisions striking down child labor laws and minimum wage laws and things like that were correctly decided. He has a whole line of cases. I’m talking about the Morsan Brown cases here where he essentially said, I read some parenting self-help books from the 17th century, and they all say that you’re supposed to be mean to kids. So therefore, kids don’t have First Amendment rights like I wish I was exaggerating. That’s really what he does. And those opinions and like for years, those opinions would just sort of ignored. Like I remember when I was in law school, I told one of my professors that I wanted to write a paper on what the implications of some of these Thomas opinions would be. And my professor told me, no, don’t write on that. No one takes Thomas seriously. He just like says these things like find a topic that’s actually likely to be relevant to the real world. And what I guess my professor didn’t realize and what I don’t think I fully realized at the time is that while I was reading these Thomas opinions and thinking, wow, what a loony bird, I think that people in the Federalist Society, you know, some of whom were my classmates were reading these decisions and it was expanding their horizons of the possible like, wait, you know, I could actually bring back a world where minimum wage, where the minimum wage is unconstitutional. You know, we could really have a world where there’s no campaign disclosure laws. And, you know, Trump appointed a slew of former Thomas clerks to the to the courts of appeals. He staffed his administration with with a ton of Thomas clerks. And like, if you look at someone like just someone like Neil Gorsuch, like Gorsuch is one of those people who came of age reading those Thomas opinions and thinking, wow, like, I should think bolder. And so now here we are where this extraordinarily fringe figure I read, like I’ve written before, this is something that’s got me in trouble. But I’ve written that I think that Justice Thomas is the most consequential judicial nominee possibly of the last 50 years. And the reason why is not just because he replaced Thurgood Marshall and moved the took a seat that was held by someone who is very far to the left and moved it to the right, to the right. But also because I think that the influence that he’s had on the conservative movement and specifically on the conservative legal movement is immeasurable. It is cause like if you are a conservative lawyer under the age of forty five, you have grown up dreaming of the world that Justice Thomas has laid out. Now, they might have five votes on the Supreme Court to implement, probably not all that, I don’t think they’re going to strike down child labor laws, but to implement a lot of it,
S5: the only thing that I would add to what he said is that I think we need to be careful about giving Justice Thomas too much credit for this being a great intellectual enterprise of his own, as opposed to seeing him as essentially the leading edge of this billionaire network. And he’s the earliest one in the quickest one to take up their signals. His wife works in that right wing extremist environment. One doesn’t know how he socializes or where he’s getting his information. But over and over again, you see him as basically the the the tip of the spear of this billionaire effort where Thomas goes, the others will soon follow. Not necessarily because he’s intellectually of such great heft, but because the machinery that has put them all there has him as its most vocal and forward leaning protagonist.
S1: I want to pivot before I let you both go to voting, because we’ve said it implicitly, but I think we need to get there in your whole book, the proposition really is you don’t have to win these things in elections anymore because the courts are doing policy now. And I think both of you would say that that 20 20 election, but for one or two fiddly shenanigans around the margins could have gone another way. And that we are looking
S1: upcoming elections that really could go another way and that the court has another in this and the court is not friendly to voting rights. I wonder if each of you could just give a thought about whether it’s sort of voting rights legislation that is going to, I think, be stymied in the Senate or whether it is a Supreme Court that is poised now to do away with more of the Voting Rights Act. What can folks do who have just a general sense that the right to vote is being, as you said at the beginning, Senator Whitehouse? It’s being leached away not just by the events of January six, but by a million tiny, tiny moves that the court has either endorsed or may endorse.
S5: So quick look at Shelby County and the gerrymandering case. The two most important voting rights cases recently, Shelby County was the Voting Rights Act case that threw out the preclearance provisions that required states with troubled voting histories to get preclearance from a court or DOJ before they changed voting laws. Supreme Court threw that out. Five of them. The five Republicans threw that out. They did so on a factual finding that things had changed with race in the United States of America. That factual finding had no support anywhere. It was contrary to the abundant legislative record. They just basically made it up out of whole cloth, but it got them to be able to throw out the preclearance act, which is something the Republican Party badly wanted. So then what happens instantly in all these preclearance states? The Republican legislators get right to work and they start pounding through these voter suppression laws, including one that the lower court said was done with surgical precision. That was their phrase, surgical precision to target minority voters. So the Supreme Court now has to know that it’s wrong about that fact upon which it hung that decision. And yet it doesn’t undo the decision. It doesn’t say, oops, if that’s true, that’s wrong. We need to rethink this. And it doesn’t accept the factual findings of the courts below. It just truculently sits on its decision and won’t budge, despite the findings of federal court circuit courts of Appeal in case after case after case. Similarly, you’ve got kind of the reverse of the gerrymandering case where gerrymandering cases come up to the Supreme Court. And in every single case, the district judge who has the case is able to say, yeah, this is actually easy. It’s actually easy to prove that there is voter manipulation here, that these things were done for improper partisan purposes. And not only is it easy to identify, it’s incredibly easy to solve. And here is a solution. Every single time and then when those cases come up to the Supreme Court, the five judges say, nope, nope, we’re not actually sure this is a problem, even though every court has said this is a problem and we’re not really sure we can figure out how to solve it. This is kind of complicated, so we’re not sure we want to get into this one. Of course, every district court had found a very easy solution. So you get these two cases in which both gerrymandering and voter suppression get protected by the court by sheer blindness. To the facts in front of it, and that’s where it gets really scary because there’s this doctrine, the appellate courts aren’t supposed to find facts. This court makes up facts like there’s going to be transparency of unlimited spending, made that up disproven, don’t care, keep pretending it’s true. Shelby County races, days are over, disproven, don’t care. Don’t go back to it. And so they’re actually living in a world in which their actual products and their cases are a bit unhinged from reality, which gives them enormous room to maneuver, to make up the legal doctrines that they’re the big donor crowd wants.
S3: This Supreme Court is as hostile to voting rights as arguably any Supreme Court, because like if you go back to the Jim Crow era, you had a court that mostly tolerated Jim Crow laws, whereas now you have a court that is actively dismantling things like the Voting Rights Act, you know, actively tearing down protections against things like Jim Crow. And so I could go into some of the details. But I mean, I guess the best thing I could do is offer some advice to listeners who are not senators or lawyers or judges about what they can do, which is for the most part, know. Stacey Abrams, the once and future candidate for governor in Georgia, has this great line about how most of these voter suppression laws are designed to make being disenfranchised look like user error. So like the problem isn’t that you were stripped of your right to vote, it’s that you didn’t have the right ID or you didn’t go to the right place or you didn’t fill out the right form or you know, or you didn’t wait for in line for five hours because you had to get to work. And also it’s 90 degrees out and no one’s allowed to bring you a bottle of water. So, like, very few of these laws literally make it impossible to vote. There is one exception, which is that the Georgia law allows the state Republican Party to essentially take over local election boards and potentially throw out votes or shut down precincts. And if Georgia Republicans want to play that game, frankly, I don’t know what the solution is. That doesn’t involve taking to the streets. But barring something that drastic, most of these laws are designed to make it harder to vote on the theory that if you make it hard enough, then maybe only 90 percent of Democrats will turn out. And if only 90 percent of Democrats turn out, 100 percent of Republicans turn out, that’s the election. So the burden on each one of us and it’s going to fall unevenly on some voters is that we’re just going to have to jump through the hurdles. You know, if they require you to get a certain I.D., get it. If they require you to fill out a stupid form, fill out the stupid form and read those directions really, really closely. So that, like, if it says that you have to sign in blue ink and not in black ink, you have a blue pen. You know, if you’ve got to wait in line for five hours, wait in line for five hours. And if you can’t, if no one’s allowed to bring you a bottle of water, bring your own bottle of water with you and like and that is what it’s going to take, like what they are counting on. What the Republican Party is counting on is they’re counting on people getting discouraged. They’re counting on people saying that there’s just it’s just too difficult. And they’re counting on the fact the Supreme Court is going to let them make it as difficult as they want as they want to make it. And there are things that you and I can do to fight that. And there are things that senators can do to fight that. But what most people can do to fight that is just make sure that no matter how many obstacles, you know, if they put a wall in front of you, you climb it. If they close the gate, then you pry it open. And if you’ve got a parachute and then you parachute in, you do what it takes to vote and then you’ve got to keep doing it until enough justices either retire or die, that we have a majority on the Supreme Court that will protect voting rights. And it’s not going to be easy. It’s going to require a lot of people working really, really hard for a really long time. But I think we are still at the point in America’s slide into authoritarianism where it can be reversed through elections. And we want to make sure that it is reversed through elections because we don’t want to have to do with the other way.
S1: Wow, I’m so rarely left utterly speechless, but the prospect of doing this the other way just got me there. Ian Millhiser is a senior correspondent at Vox, where he writes about the Supreme Court, the Constitution and the decline of liberal democracy in the United States. Ian’s new really superb book is The Agenda How a Republican Supreme Court is Reshaping America, was published this past spring by Columbia Global Reports. The audio book is out now, published by Penguin Random House.
S3: Thanks so much.
S1: Senator Sheldon Whitehouse is the junior senator from Rhode Island, where he has served since 2007. In February, he was selected to serve as chairman of the Senate Judiciary Subcommittee on Federal Courts Oversight Agency Action and Federal Rights. Senator, thank you so very much for being with us.
S5: Thank you so much, darling. It’s always a pleasure.
S1: And so now we are at the Slate plus top secret VIP room portion of the show. Mark Joseph Stern joins us to talk about the stuff we didn’t get to in the main show. And, Mark, I should, before I welcome you, just tell you very upset listeners that you were not with us for the last show. So you may want to just take a moment and tell them that you had a horrible, awful vacation and you’re super sorry it took a week off.
S6: I will not do that. I will say I reverted back to my Florida man roots in the panhandle where I am from, and took a nice trip to Destin and have not shaken it off quite yet as I was napping in the sun when we were supposed to record this and slept through your many notifications that we were supposed to be talking. So, you know, just it takes a while once you’ve re adapted to the Floridian style to get back into the D.C. grind. But I’m here now. I’m with you. You know, I’m back in my Washingtonian mindset.
S1: You can take the man out of Florida, but you can’t take Florida man out of the man. Yeah, I think that’s right. Mark covers the law and the courts and voting and everything else for us here at Slate. Mark, let’s start with the rude awakening coming back from the cert grant in Dobbs, which we’ve talked about a little bit in the main show. But can you just sketch out why this really felt like a punch in the face from a court that could have just kind of kicked us gently in the cab?
S6: Yeah, for sure. I think I would prefer thig but you know, when you look at the options that this very conservative Supreme Court could take up when it comes to rolling back abortion rights, it really seems that the conservative justices went for the jugular here. And what I mean by that is there’s a ton of cases on the court’s docket that are working their way up to the court that deal with, you know, abortion, but in a less direct way, ultrasound requirements, waiting periods, mandatory counseling, trap laws that try to target clinics. You know, all the stuff that we’ve been dealing with for years. And the court could have easily taken up one of those cases and used it to erode Roe v. Wade. Right. To kind of start the process of rolling it back. And then if you look at this case, DOBs, in particular, Mississippi, which passed this law to be a vehicle for the Supreme Court to overturn Roe. Right. Mississippi said, well, you know, we’re going to give you several different questions presented. And one of them is just going to be basically are will you overturn Roe v. Wade? But there are going to be some more moderate ones, like should you tweak the standard for abortion restrictions? You know, should you kind of weigh the state’s interest in protecting fetal life more heavily? Should you cut back on abortion clinics ability to defend their patients in court and the Supreme Court in in agreeing to hear DOBs cleared away all of those half measures, all of those other options, and went straight for the question at the heart of this case, which is whether the Constitution allows a total ban on abortions before viability, which is what Mississippi has done here. This is a 15 week ban. All right. But the the dividing line, for many years, almost half a century now, since Roe has been viability and sort of compounding. That is the fact that by addressing viability, the Supreme Court is once again kind of going to the foundation of Roe. And it’s notable that the court didn’t fashion the question to say something like, you know, can a state value fetal life at 15 weeks sufficiently to ban abortion? It didn’t even mention 15 weeks in the question. It took up. It just asked about pre viability abortions in general. And what that suggests is that the Supreme Court’s probably going to uphold this Mississippi law, which bans abortion at 15 weeks, but in the process, use language that allows lower courts to uphold even more extreme abortion restrictions, 12 weeks, eight weeks, six weeks, maybe even total bans. If the Supreme Court doesn’t do that itself, it will almost certainly leave room for the lower courts to do it. So this just feels like a very aggressive move, probably the most aggressive move the court could take. And frankly, the kind of move I didn’t expect the court to make before the twenty twenty two midterm elections.
S1: And just to stay on this for one more beat, Mark, I think it’s worth saying that. We in some sense have this Groundhog Day scenario where everybody expects that cases, the thing that overrules Roe and then it doesn’t and everybody expects whole woman’s health is the thing that overrules Roe and it doesn’t. And it is entirely possible that Dobbs will be the thing that doesn’t say the words Roe v. Wade is overturned and yet functionally makes it impossible for clinics all around the country to function and functionally makes it impossible for most women in many states to ever get an abortion. So I think that the paradox I’m just trying to highlight here is that this is both an incredibly aggressive search grant and an aggressive statement of the question. And there’s no split on the circuit courts and also may not end up a year from now with the Supreme Court formally overturning Roe.
S6: Yes, that’s right. People should not generally expect the Supreme Court to announce, hey, we are officially overturning Roe and Casey. Those decisions are gone. They’re in the dustbin of history where a pro-life court, you know, Republicans, you win this one, it seems more likely that they’ll do what the conservative justices, namely Brett Kavanaugh, have been doing for the last few years, which is overturn progressive precedent in all but name right, eviscerates progressive precedent hollow without take away all of its real effect, but then claim to be following it and say, oh, we’re adhering to this precedent. We’re just fundamentally changing what it means.
S1: We talked a little bit in the main show with Amy Hagstrom Miller of Whole Women’s Health about the new Texas six week ban. And I wonder if you can explain to us, because it is a head scratcher, SBA, in addition to everything else and you wrote about this really eloquently on Thursday, but SB eight makes it a crime to drive somebody to a clinic to terminate a pregnancy, makes it a crime to give someone advice about terminating a pregnancy.
S6: So not a crime technically, but opens up that person to civil liability. So let’s let’s back up here. Texas has passed a gazillion abortion laws that have all been blocked in the courts. They’re immediately blocked in federal court. Planned Parenthood or Center for Reproductive Rights or Women’s Health goes to a federal judge in Austin and the judge blocks it right here. Greg Abbott and Ken Paxton and Republican legislators in Texas said we’re going to try something new. OK, we’re going to pass a bill that bans abortion after six weeks. And it’s an outright ban. It does not include an exception for rape or incest, but we’re not going to allow state officials to enforce that ban. So the attorney general can’t enforce it. The governor can’t enforce it. State health officials are not allowed to enforce it. Instead, any random person in Texas can file a lawsuit in any state court in Texas against any person who, quote, aids or abets a woman in obtaining an abortion after six weeks. So what does this mean? A couple of things. First, it means that Planned Parenthood has no one to sue. Right. They can’t sue the attorney general because he doesn’t have the power to enforce this law. They have to wait to be sued. And when they are, they’ll be stuck in state courts. It also means that anyone who facilitates an abortion in any way, including just verbal encouragement, potentially depending on how explicit it is, can be held liable for a minimum of ten thousand dollars in damages in state court as well as attorneys fees. And again, literally anyone can bring that lawsuit against the facilitator or the abettor or the accomplice to the abortion. And this extends not just to friends, family members, clergy, but also potentially rape crisis counselors and other counselors, a doctor who refers a patient to somebody else who ends up providing an abortion clinic staff. Right, right down to the receptionist. And also, we should note anyone who even just forms the intent to facilitate an abortion after six weeks without acting on it. As soon as you formed the intent, you are on the hook for a minimum of ten thousand dollars in damages to anyone in Texas who chooses to sue you. And I mean, the language is so broad that it seems to even include random people who. Donate money to an abortion fund that ends up facilitating an abortion in Texas, they could be hauled into Texas state court and fined more than ten thousand dollars because they gave a ten dollar donation to a Texas abortion fund.
S1: And, Mark, you pointed out in your piece that it’s almost impossible to conceive of this being lawful, but that it just violates every which way from Sunday. And a whole bunch of Texas lawyers have weighed in on that.
S6: Right. So here’s the issue here again. Planned Parenthood can’t go to a federal court and say this is an undue burden on abortion. Right. But as a number of Texas lawyers have pointed out, the Texas Constitution actually imposes really strict limits on who can bring a civil suit and says that the legislature can’t expand those limits. And one of the fundamental limits is that the person who brings the suit has to personally suffer a real injury. And the theory behind the Texas law is that any Texan, any person in Texas suffers an injury when any other person helps somebody get an abortion after six weeks. But I think under any rational, plausible standard, that is nonsense. That is not what a personal injury means in any kind of standing analysis. And so setting aside all of the controversial abortion stuff, it seems pretty likely that this law is just going to end up floundering on boring old Texas civil procedure.
S1: So what’s the point? Just signaling just more kind of traumatizing and moving the goalposts?
S6: I think so. And I think, you know, we’ve talked about this before. I’ve written a lot about it. Every abortion restriction on some level punishes women. And as Roe is further chipped away and as states like Texas anticipate the Supreme Court gutting it or overturning it, these laws are getting closer and closer to just explicitly punishing women, shaming them out of having an abortion, shaming them if they do have an abortion. We’ve seen some red state prosecutors try to bring criminal charges against women who self terminated and hear what this law does is sort of ensnare women who want to get an abortion in this network where they can’t talk about it with anyone else. They can’t talk to a rabbi. They can’t talk to a friend or a family member. They can’t have their brother drive them to the clinic. They can’t have their stepsister help cover the bill. They can’t speak openly about it. They have to keep it a secret. And they know that by getting an abortion, everyone who helps at the clinic, the doctor nurses again, even the receptionist, the patient is putting them all in legal jeopardy. And so, yes, the law technically does not allow a suit to be brought against an abortion patient herself. But we all know what’s happening here and how this will play out. It it punishes and humiliates women by turning all of their loved ones and all of their medical providers into accomplices in a civil violation that could result in debilitating fines.
S1: One more obvious question mark, because you said the thing that I have said as well for the last six months, which is the court’s not going to take a big swing before the 2022 election, we’ve now been proven wrong. We were making a big guns case, a big abortion case. Clearly no fear of these issues of public legitimacy going into the midterms. What does that tell you? Does that mean that Joe Biden blinked and efforts at expanding the courts and other kinds of court reform were never in earnest? And the justices are emboldened to do whatever they want? Or is there some big tick tock that you and I don’t understand? That means this has to happen quickly. What is your theory of why the court has been so aggressive in the last few?
S6: So a couple of possibilities. I mean, the first possibility is, as you just alluded to, you know, Joe Biden’s court reform commission is silly. It is filled with really smart people, as we’ve discussed, who are not even tasked with providing a recommendation for reforming the courts. And I suspect that the conservative justices look at that and say, you know, there’s no real threats of court expansion. The threat has passed with Joe Biden in the White House. We don’t really have to worry about that kind of backlash to our decisions. So let’s just go for broke. But there’s also a possibility that, you know, the Supreme Court in in history has been pretty bad at politics. The justices sometimes try to play politics, but they tend to be awful at it. And it might be that the conservatives actually think that overturning Roe will be super popular. They. I actually think that this is what the people want and they’re overturning Roe or gutting it will benefit Republicans in the midterms and the Democrats have it all wrong. And then there’s the possibility that a majority of the court just doesn’t care about the political ramifications of its decision and have decided to go for it while they have the votes. And I often think about what happened in the first case, trying to take down public sector union dues. Right. Which was argued when Scalia was alive and there were clearly five votes to blow up mandatory union fees for public sector employees. And then Scalia died and the court split four four and ended up upholding these mandatory union dues for years to come until finally Gorsuch joined the bench and the court could do its work. And I think that, you know, not to get to Mordente about this, but some of the justices are pretty old. There’s always a possibility of a surprise retirement even on the right flank. And maybe some of the conservatives are saying, we’ve got the votes, we’ve even got breathing room here. We’ve got six conservatives will need five. So let’s just do it and be legends.
S1: Mark Joseph Stern covers the Supreme Court, the lower court’s LGBTQ reproductive rights and so many other issues so ably and well at Slate. We really missed you last show. Mark, thank you for being here.
S6: Thank you. I missed you, too, even while living in the Florida sun. And I’ll try to take a few more naps during future recording sessions, thanks to you.
S1: And that is a wrap for this episode of Amicus. Thank you so much for listening in. And thank you so very much for your letters and your questions. We love them. Keep them coming. You can keep in touch at Amicus, at Slocomb, or you can find us at Facebook dot com slash amicus podcast. Today’s show was produced by Sara Birmingham. We had research help from Daniel Maloof. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate podcasts. And we’ll be back with another episode of Amicus in two short weeks.