S1: This ad free podcast is part of your Slate plus membership.
S2: I think that all of the substantive questions have to be about legitimacy.
S3: I got to say, I, as an African-American, not having the courts to rely on is nothing new.
S4: Hi and welcome back to Amicus, this is Slate’s podcast about the courts and the law and the rule of law. Supreme Court, thank you all so much for sticking with us through a lot of shows this week. It’s a week that has been sad and enraging and frustrating and alarming in about equal measure. Well, Donald Trump will name a successor to Ruth Bader Ginsburg on Saturday. And no matter who that person is, he’s told us they will devote themselves to reversing much of her legacy at the court. Also, no matter who that person is, Mitch McConnell has told us he already has the votes to confirm her. So what are Democrats going to do about that in the Senate? Well, we said last show that we would be bringing the sound and the fury to this conversation.
S1: So buckle up for a discussion about, well, at least metaphorically hurting some stuff down. Joining us to talk about arcane Senate procedures, tricky confirmation tactics and the prospect of court reform are Mark Joseph Stern. He covers the courts and the law for Slate and Amy Stahl, who covers the courts, the criminal justice system and politics at the nation. Now, later on in this show, Slate plus members will have access to a conversation about what in the what is happening with these several hundred election and voting rights lawsuits all around the country in particular, we’re going to focus on what we should maybe be worrying about in Pennsylvania. But first to that metaphorical conflagration with Mark and Elie. Welcome.
S3: Howdy. Chaining yourself to the Senate floor isn’t arcane. It’s actually quite low tech.
S1: Hey, there you go. Let’s just jump right in, shall we? I mean, I guess the nominee is going to be named. We don’t know who it is. Does it matter who he names and I guess if it matters. We can talk about them. Mark, you want to go first?
S5: Yeah, it absolutely doesn’t matter who he names because we already know why he has selected this individual. He’s really gone on TV multiple times at this stage and stated his chief criterion, which is that he wants a justice who will hand him the presidential election that we are currently in. He has said over and over again that he will not accept a peaceful transfer of power automatically, that he does not believe the election is necessarily being run fairly, and that he will win once the federal judiciary and the Supreme Court make sure that the ballots by which we think he means mail in ballots are not counted.
S6: Right, because he thinks mail in ballots are fraudulent. I mean, really, he thinks they’re just cast by Democrats, but what’s the difference to him? So Donald Trump is looking for a Supreme Court nominee who will, in a quite plausible Bush v. Gore like scenario, automatically rule for him, nullify as many Democratic ballots as necessary to ensure that he receives another term that is this man’s stated public goal. I could not care less the vessel he chooses for. It’s this is what he’s doing and we know why he’s doing it.
S3: And of course, Mark, he’s not even making the choice, really. I mean, like, this is it wouldn’t matter what Trump wanted because the Republicans, the the Federalist Society, the arch conservatives, they’re the ones making this pick. Right. And they’ve they’ve for a generation have told us what they want out of this pick. It’s they want a woman to be the person who either ends or significantly eviscerates Roe v. Wade. They want a woman to build them from the constant accusations of sexism that are rife within their movement. And they want a woman to be the one to extend gun laws and to do all the things conservatives want to do. I agree with Mark. It does not matter which vessel he picks to do this with. But I will just just remind your listeners there’s another way to go. And that way is the way the Obama went, right. Like when you have a Supreme Court opening in a divided country that looks to change the balance of power on the court, the way that the Democrats played it was too fine. A milquetoast, moderate, generally nonthreatening vessel right like that. That’s what the Democrats played, how that worked out for. So obviously, Trump is going the entirely other way instead of trying to find a moderate Republican, that would be generally acceptable to the broadest kind of swath of people. They’re going in the complete opposite direction to find a hard right fringe candidate with fringe ideas, frankly, to do Red Sox work on the court.
S1: Fed up being the Federalist Society, I’m just curious, who would that milquetoast moderate acceptable to US Republican nominee be?
S3: Acceptable to us is probably not the right way to look at it. Right. OK, there’s almost no Republican that would be acceptable to me. But you can imagine you can imagine the Mitt Romney kind of type of people being drug out at this moment to present a and really, if you’re Trump getting Romney out of your way in the Senate is not the worst idea in the world to kind of appeal. Again, not maybe to me, who tends to be on the hard left of these issues, but to appeal to the widest spectrum of American voters like that. That was a possibility. That was the possibility that Obama went with. And so you can imagine, like, you know, again, because because the facts are so skewed, what conservative legal thought is there very few kind of popular moderate conservatives? I don’t know if you want to say like Paul Clement. Like Ted Olson. Right. Like people think of Ted Olson as a liberal, he ain’t right. This is a guy who was on Bush’s side and Bush v. Gore. But Ted Olson, I believe, is a reasonable man and a reasonable human. And while I would disagree, I’m sure with a lot of his judicial policies, that would be my example. They broadly acceptable Republican lawyer who could fill the spot. Trump won’t be in 10 feet of a guy like Ted Olson.
S1: So so let me ask you this question, because I don’t want to get in the weeds of talking about Kony, Barrett versus Lagoa versus last, I just don’t think it’s useful. But I will say I wonder if. We’re already being set up in for a trap in so far as the nominee as of this taping hasn’t been selected and I’m getting 10 emails a day blistering me for being anti Catholic or for being anti woman. I mean, they haven’t picked a nominee yet. And already, apparently, whoever that person is, is is a victim. And so I’m trying to figure out how assuming it is a woman or assuming it is a person who has made her faith the centerpiece of her legal thinking. It’s a trap for Dems to engage with any of them. Right. Mark, do you want to go?
S6: I don’t really want to touch this with a ten foot pole, but it’s very obvious that Republicans are licking their chops over the prospect of any Democratic senator saying literally anything about the nominee’s faith, particularly if it is Judge Barite. And we know this because when Amy CONI Bériot was before the Senate for her her her hearing to go to the 7th Circuit, Dianne Feinstein, ranking member of the Senate Judiciary Committee, grilled her on her faith and said, quote, The dogma lives loudly within which I think was inappropriate, I think was really stupid and I think was a massive boon to Amy ConnivEr, its prospects to eventually reach the Supreme Court, because there’s nothing Republicans want more than to be able to play the victim card here. That is what ultimately got Cavnar on the court. Right. He turned around and said, I am the real victim and they’re going to run a similar playbook. This woman is a victim of bigotry, of Democratic hate. And Republicans in the Senate, you have to stand behind her. You have to unify behind this nominee because otherwise you will let the Democrats hate overcome this entire process. And that is just unacceptable. We must stand behind our warrior.
S1: Right. And let’s remember Clarence Thomas. Right. High tech lynching. I mean, this is, of course, is an old playbook. But I guess I just want to ask you, the question mark will tell you, I ask him this question twice a week and have done so for three years. But is there a way of framing the question about Judge Barrett that says you have written Travis gently and explicitly about the interconnection between a judge’s faith and the doctrine they produce? Is that a problem? Is there a way to frame that question where you don’t pull back a bloody stump?
S3: It’s difficult for me to answer that question because I don’t know who you’re talking about. Exactly right. Like, I like to frame it in a way that you won’t get hit on bigotry charges. By whom? Right.
S1: By both sides. But I mean, Dianne Feinstein got shellacked by on the left and the right for a religious test and for inappropriately probing Amy CONI Barrett’s writing. So I just am trying. I guess what I’m asking is the hypothetical is, is there any way to ask a judge who has written that, of course, religion affects my judging? Does religion affect your decision?
S3: But I think you ask it exactly that way. Like so to answer your question, yes, of course there is a way to do that. No matter how you do that, there will be bad faith. People on the Republican side who accuse you, I mean, no pun intended, but there will be bad faith, people who accuse you of acting in bad faith. And no matter how you frame it, there will be cowardly chicken livered liberals, really good guy. Like no matter what you do, you’re going to get that from both sides because the Republicans act in bad faith and the liberals act with cowardice. So it’s impossible to frame it in a way that appeases both of those extreme wings. But in terms of kind of being able to sleep with yourself at night, knowing that you have done right, of course there was a way to ask that question. You have to ask that question. You have to bring it up, because she herself has brought it up. Right. There are Catholic nominees out there who do not make their faith a particular issue in their judicial opinions. Right. Like Neil Gorsuch is Episcopalian, raised Catholic. What I didn’t know what religion Neil Gorsuch was until he already been on the court for like two years. All right. I like him. Like I had problems with the old Gorsuch based on his writings. I had problems with people like AKB based on their writings. It just so happens that Acebes writings make an explicit tie between her religious views and her her judicial views. And the other the other thing that’s kind of worth saying, I think, in this context is that I care about the religious views, like I. I don’t I don’t begrudge her believing what she believes as a matter of faith. I begrudge her imposing it on me. That that’s that’s that’s always the issue, I have no problem with a person who says because I am X, I believe Y in the law, I have no problem with that. When I have a problem with is when you take because I believe X, I believe Y in terms of the law and you must as well. That’s where I’m like, oh well don’t don’t don’t tell me why Jesus doesn’t want me to have an abortion. Tell me why the Ninth Amendment of the Constitution doesn’t allow me to have abortion. Because we can’t do that. You can’t do anything for me. That’s where that’s where the argument is against this issue. And of course, there is a way to frame it as such. But no matter what, Republicans are going to say that you’re being bigoted and Democrats are going to be scared about it.
S6: Also, I just don’t know how much utility there is to asking such a question, because the Federalist Society has spent 40 years now building up a kind of secular justification for many extreme rulings that might be viewed as theocratic, for instance, denying women control over their own bodies, rolling back reproductive rights. You do not see judges or conservative attorneys justifying this on the basis of faith, right? They say, oh, no, you just don’t understand. The Fourteenth Amendment does not protect unenumerated rights or the unborn children have a compelling you know, like there are all of these other things that everyone can raise if they are ever accused of using their faith to judge. And so there is no point in accusing someone. And I think of using their faith to judge because there’s always a neutral justification or neutral response. And like we both, I think, agree, Ali, Republicans will pounce on it and claim that it’s anti Catholic bias. And a lot of lily livered Democrats will say, oh, yeah, you’re right, this went way too far.
S3: I mean, the issue is I think we’re both Mark and I also agree is that, like, there’s no point in engaging at all. Like there’s there’s no point having a hearing. There’s no point in lending legitimacy to an illegitimate process by having a sit down hearing about her issues because it honestly doesn’t matter.
S1: So wait, stop, stop, stop. Because I absolutely was one of the people who said Democrats in the Senate shouldn’t even show up for Neil Gorsuch hearing because there should be yellow crime scene tape around Justice Scalia’s seat. And it was fascinating. You know, I covered the hearings and like I think that the Democrats in the Senate were sort of both there under protest and they’re fighting on the merits. And so there’d be lots of like lengthy, passionate speeches about how we shouldn’t even be here. And this is illegitimate. But also talk about the frozen trucker. And I think, you know, if we really are quite serious and it sounds like the three of us are quite serious, that to engage in this hearing on the merits is to bless this hearing on the merits. Is the tactic to just not show up or chain yourself to the Senate floor.
S7: In which case, let me just add parenthetically, you are playing right into Mike Pence, his hands, because Mike Pence has said we don’t need a hearing because we got to do this fast so she can decide the election.
S1: So this strikes me as tactics go as one of those very clever stunts that I agree with morally that is going to absolutely serve the purposes of Mike Pence more than mine.
S3: So here’s my play. You send one person. Remember Republicans for Kavanaugh? They had the female assistant. You said you send your female assistant to the hearing room, not an actual senator, because that would make them look bad. But you send an assistant to the hearing room to engage in every possible delaying tactic on the book. You make it ugly. You make every you make that hearing, procedurally speaking, last as long as possible. But you, the senator, add no legitimacy to the process by being there. You’re busy chaining yourself to the Senate floor or holding speeches on the on Capitol Hill or doing whatever it is you do to a possible nominee. But you don’t physically show up at the hearing at legitimacy to it. But you also send somebody to to gum up the works as much as possible. You play both sides in that in that fashion. Look, bottom line, if the Kavanaugh hearings didn’t matter and it turned out they didn’t matter, then nothing matters like the like if if if what happened at the Kavanaugh hearings was not enough to make any to make enough Republicans find a shred of conscience or decency. If that wasn’t enough, nothing is ever going to be enough with these Republicans. And so showing up to that sham of it, because it’s not a confirmation hearing, it’s a confirmation coronation. And there’s no reason for the Democrats to show up for that.
S5: Mark? Yeah, I think we’re all like going back and forth, trying to figure out how Mitch McConnell is going to outsmart the Democrats this time, even though I don’t think he’s a super evil genius. I think he just always. Has the votes because the Senate favors white, undereducated, rural people.
S6: But anyway, you know, the truth is that I have decided that I do think that substantive questions should be asked at this hearing by the Democratic side.
S5: And it could be one single female assistant and it could be a senator. I think that all of the substantive questions have to be about legitimacy. I don’t think they should be asking this nominee about about Chevron deference. We know that this nominee will overturn Chevron deference. I don’t think they should even really be asking things like how do you feel about capital punishment?
S6: Like we know all the dodges, we know the script. Like we’ve been through this twice before under Trump. Isn’t that nightmarish, just to say out loud? And so I think that the questions have to be really laser focused on, like we know why you are here. We are now going to grill you under oath about all of the reasons why you are here and see if you’re going to lie about them. Why did Donald Trump choose you and what did he mean when he said, I need a Supreme Court justice to basically decide this election? What did he mean when he said, I need the judiciary to throw out the ballots so that I can win? Why is he pushing you through before Justice Ginsburg’s funeral? Right. He’s going to announce this nomination before the woman is literally in the ground. Why the urgency? Like, why do you think you are here? And if the nominee says anything other than to hand Donald Trump the election, then we know that the nominee is a liar and that no one should trust anything this person says under oath.
S3: Mark, can I just come back to you for a second? What about the current Democratic Party makes you think that they are capable of doing that, right?
S6: Well, that’s the problem. I mean, they bungled every step of this so far, right. What was the statement from Dianne Feinstein? She says she’s very concerned. It’s like even Susan Collins adds more adverbs before concerned. I think that the Democratic Party has been really bad at countering McConnell’s moves on the judiciary throughout this entire presidency. But I think that if there is ever a moment to try to encourage this party to aspire to something like doing its job, this has got to be it’s right. There has got to be a unified voice, a unified chorus of people saying, Democrats, you are there for a reason. This is a power grab that may destroy the court and will destroy half the entire country’s faith in the court, probably forever. What are you going to do about it?
S1: So let me add one other thing, because I think actually one Democrat who’s been asking the right questions for years and years is Sheldon Whitehouse. And I think that he over and above almost anyone has been just following the money trail, following the money trail and talking about captured courts and moneyed interests. And I think one question I would like to hear asked every single day is how much did Judicial Confirmation Network put into the ads for this? How much like I want to know about the money. And I understand that the nominee doesn’t know that. I know Neil Gorsuch couldn’t answer that those questions and Brett Kavanaugh couldn’t understand those questions. But I’m not sure the American people know how many millions of dollars of dark money is just sloshing around in buying court seats. And I think that’s a piece of the education. In other words, beyond the substantive question. Hey, Josh Hawley says he’s not even going to vote for you unless you’re going to overturn Roe. Have you given him confidence that that’s the case? In other words, beyond the merits, I also really think that the American public freaking hated across the ideological boards, hated Citizens United. They freaking hate the idea that elections are bought and sold and that they have been disempowered by huge amounts of money in the hands of a few people. And I would like that to be injected into this conversation like right quick over and over and over again. And if the nominee can’t answer, then, like, cool, get it out there.
S3: Yeah, but see, but what you guys are doing and it’s and it’s lovely what you guys are doing are still having some hope that something can be said or done to wake the American people up to the travesty and tragedy that is happening at the courts. You’re hoping that they’re somehow through the normal process of a confirmation hearing with important questions from our political leaders that awareness can be raised. And I’m telling you guys that that ship sailed long ago. You previewed this by saying this is the Burning Down podcast. I’m talking about burning it down and I can’t burn it down. If I’ve still got 18 senators on the Judiciary Committee sitting in the House, I need them outside the House that I am trying to burn down. Right. I give the Democrats a simple having watched them fail so repeatedly so. Often to conduct not just a confirmation hearing, but damn near any hearing during the Trump administration with any level of discipline, having watched them fail both in the Senate and the House time and time again to attack some basic probing of questioning discipline during their hearings. I’m no longer asking them to that. I’m just asking them to not show up. Just just stay away. Don’t muck this up. If you want to send somebody some Pam Karlan to do all your questioning during the hearing. So I’ll handle it for you. And you guys just do what you do. Go find a camera and make a speech. Just just stay out. Don’t don’t add your legitimacy to an illegitimate process. Because what what the American people are going to hear if if we engage in the process with the American people, are going to hear our Democrats say that. Republicans say that. And it’s not a he said she said thing. This is either this is legitimate or it’s not it is not legitimate. We are going to stop treating it like it’s legitimate. And that’s what I need Democrats to do.
S1: And just by by way of rebuttal, I guess I would say and then in so doing, Democrats further establish that both sides are the same. And this is a stunt. Right? Like, I think there’s a way to read the nihilists. It all sucks by just saying this is why Washington is broken. I’m not disagreeing, Ali. I cannot say that I have been impressed by how the Judiciary Committee has handled legal issues in the in the past, not just for years, but over decades. But I just worry a little bit that fire with fire just means I’m not going to say burning it all down. We’re done with the with the arson metaphors. But I do think that fire with fire just drives voters to say both sides of the same mark. Am I wrong?
S5: I fear that you are correct.
S6: I guess this is why and I have reached slightly different conclusions here, because I guess I just still have a little bit of hope that if Pam Karlan goes and I’m all on board with keeping the senators out of it and sending in Pangkalan because the senators don’t need any more clips for their fundraising results. Right. Like just send Pam. Absolutely. But ask the questions like when was the last time you talked to Leonard Leo and what did you talk about? When was the last time you talked to Carrie Severino and what did you talk about? Let’s talk about who prepped you for this and who taught you how to avoid saying out loud why Trump selected you, even though he’s already told the American people. I know I sound like a broken record here, but there’s got to be a way to really grill a nominee like the political operative that she is. There’s got to be a way to interrogate this person, not about her views on the law, because we already know what they are and she’s just going to lie about the ones that are unpopular. Right. That’s the that’s the playbook. We already know it. There’s got to be a way to exploit the fact that she is under oath to at least, like you said, follow the money trail a little bit and get some clips for the nightly news that aren’t just, oh, how do you feel about abortion? Is Roe v. Wade super precedent, whatever? Like there’s got to be a way to get this nominee either dodging or answering real questions about the terrible ethics surrounding this entire process and this nomination.
S3: They ask Kavanaugh that. Kavanaugh why? They ask Kavanaugh why he lied. He lied some more. Nothing mattered. OK, so let me ask you this.
S1: In the spirit of growing despondent nihilism, let me ask you this. We are now not just burning down the Senate. We are, I think, talking about burning down the court, which is which is fine. And I know you are. Absolutely. It’s why I wanted you on the show. You are one of the longtime proponents of look, it’s always been this backward looking, revanchist, white male, privileged institution that exists almost exclusively to protect white male prerogatives and like had a good run in the sixties. Thank you very much. But the whole thing sucks. And I know you’re there. And that’s why court packing and all the structural reform is on the table. But I guess I want to ask because I’m still like Mark, you know, a little bit of a lily livered romantic about the court. Well, I’m not going to suggest that Marc is lily livered romantic about the court, although he is romantic about questioning is having utility in the process in the Senate process. But I will speak for myself and say I still have this notion that there’s no Plan B when Americans lose all confidence in the court. We don’t have a backup system of checks and balances and rule of law. And so if we go ahead and say right now, every single Democrat should be talking about court packing, every single Democrat should be talking about jurisdiction stripping, every single Democrat should be talking about doing away with lifetime tenure. I think we’re agreeing that the message is the court sucks and it’s going to suck forever, right?
S3: I’m not going to say forever, but it’s but it sucks right now, and it sucked for a long time. There are two kind of issues here that I think are are worth bringing up. One, you keep saying you keep worrying that the Democrats, the voters will get the impression that both the Democrats and the Republicans are the same. I would love to get to the point where the Democrats are the same as the Republicans. Right. Right. I would love to get to the point where the Democrats are willing to fight as hard and as dirty and as scorched earth as the Republicans are, because the Republicans decision to do that is why they have won, whereas the Democrats have failed. So so on on the issue of kind of ultimate mutual assured destruction, the nihilism that I am, I guess, preaching for the Democrats to adopt is defense against the nihilism that already exists in our system. Right. I can’t have my side continuingly kind of resting on the hope of a better future when the other side is so effective at using that hope against us. Right. So there are things that we can do that we don’t do because we have hope. And McConnell knows that. That’s why he’s calling our bluff. I mean, just just to be real politic here, the only reason the only reason Mitch McConnell, when staring at the kind of electoral defeat that the polls suggest right now, the only reason he is still pushing forward with this is because, A, he thinks Trump’s going to steal the election anyway, and B, he thinks even if he doesn’t, the Democrats don’t have the guts to do what is necessary if they ever get back in power like that is McConnell’s bet right now. The Democrats simply do not have the guts, even in power, to roll back what he has done to the courts. I go back literally all the way back to John Adams, the first person to mess with a number of the Supreme Court justices. Right. He reduced the number of justices from six to five after he lost in the lame duck to Thomas Jefferson, thinking that Jefferson wouldn’t have the guts to stop them. And Jefferson, as soon as he got in office, was like, guess what, six again, you know what? It’s seven. Now, what are you going to do, John? Like Jefferson did not care about John Adams nihilism in eighty one. Right. He he fought back. And I need the Democrats to fight back. And McConnell doesn’t think we have the stones to do it. So that’s number one. Number two, when you talk about like we don’t have a plan B if people lose faith in the courts, I got to say, like. As an African-American, not having the courts to rely on is nothing new. I mean, we talk about the 60s and we understand the Warren Court and that was great for the progress of certain civil rights. But from the day to day experience as a black man in this country, I don’t expect justice when I go to court. If I got to be in front of a white judge in a white jury with a white defense lawyer against a white prosecutor, I know I’m already screwed. My goal is to stay out of the court system if I’m a black person in this country because I know what happens once I get into your white system. Right. So the concept of living without objective justice isn’t, I guess, all that radical to me, because it’s pretty much the world I always live in. It’s radical to, I think, white people who are used to thinking that courts and judges and the legal process is objective and fair, or at least it should be. But from the perspective of other people, fundamental fairness through the justice system is not a given and in fact most often doesn’t happen. So when we are really talking about the dangers of ruining American confidence or losing American confidence in the justice system, I’m kind of like, yeah, welcome to my world. But that is actually the world I already live in. And again, my goal is not to necessarily change that world, it’s just to make that world more fair to men more often than we lose in that world. Because right now, not only is the world unfair, but then we also lose in it. And I don’t want that Mark.
S1: I think Ellie’s point is in some sense spot on identifies the problem I’ve been having for years, which is I feel like the boxing kangaroo, you know, in that I spend so much energy, huge amounts of energy trying to prop up confidence in a broken Senate, confidence in a broken court system, confidence in whatever this like ephemeral notion of the rule of law is that I can’t spend my also boxing kangaroo arms. I wish listeners could see me doing boxing kangaroo on Zoom because it’s sad and pathetic as it should be. I just don’t think that all that energy then goes into the fight. Right. Like saying take the fight to Mitch McConnell because you can’t have this two front war where you’re trying to prop up the integrity and dignity of the courts and also fight Mitch McConnell, who’s breaking the courts. And I wonder, Mark, if we just save our boxing for Mitch McConnell, break the thing down, hope for the best in the future, try to build it fair the second time and just get on with it, because Ali’s right. I spent an immense amount of energy saying, you know, if I’m Sherrilyn Ifill and I rely on the courts for the work I do, then like tearing the courts apart doesn’t help. If I am all those environmental groups who The New York Times highlighted this week that win and win and win against Trump in the courts, even with Republican judges like I’m fighting for the courts and saying and I think he’s not wrong, that that is an immense amount of energy I am expending on a fight that can’t that can’t be won if the other side is intent on destroying it anyway.
S5: So, yeah, I think you can only fight a one front war here. And I think the war has to be against McConnell and the McConnell ization of politics and particularly the McConnell ization of the judiciary.
S6: I do not think the Democrats should waste time trying to game out exactly how each individual move might affect the legitimacy of the judiciary, which is something we can’t really measure. And it’s kind of subjective anyway. Republicans don’t do that. They never have done that. They don’t care because they are willing to bet that the judiciary will retain the power to implement its decisions, at least to its right wing decisions, to little points.
S5: I just want to add to what Ali said, which I generally agree with No. One. If Trump’s nominee to replace Justice Ginsburg is confirmed, it will delegitimize the court in the eyes of about half the country. If Democrats respond by adding four seats to the court, it will delegitimize the court in the eyes of probably another half of the country.
S6: I am not sure. I’m not convinced that any of that will actually affect the court’s ability to issue and enforce decisions. Like Ali said, John Adams and Thomas Jefferson did a back and forth about the court’s right, changing the size just to futz with the law. People still believed in the Supreme Court and followed it during the Civil War, right. Congress added a seat, a tenth seat to the Supreme Court so that Lincoln could add a justice to dilute the influence of racist Southerners. And then when Andrew Johnson came into office, Congress took away three seats so that Andrew Johnson could not a. More racist southerners to the court and then when Ulysses S. Grant came into office, they restored two seats and still people said, yes, the Supreme Court is real, it is legitimate, and we will follow it. There have been times of resistance to the court, like in the 50s and 60s after Brown v. Board. But after all of that ended, people still said, yeah, will do what the courts order us to do. Federal marshals did not have to be sent into every single state capital to implement the school prayer decision. Yes, people defied it for a time, but eventually it became accepted law. I mean, it is for now. Who knows what will happen if Trump replaces garbagey. But even if I’m wrong about this and even if the delegitimization of the court in the eyes of the public actually matters and the court loses this magical ability to actually transmogrify its words into law, I am not convinced that that on the whole is a bad thing. OK, this is I feel like an issue of American exceptionalism where we believe that the Supreme Court has to be all powerful in order for democracy to function, in order for us to remain a liberal democracy, period. But literally, no other country’s Supreme Court is as powerful as the United States. I mean, our neighbors to the north and Canada. Right, that every province has a notwithstanding clause. They can just tell their Supreme Court, we’re not going to follow your ruling. And that’s OK. And Canada is still a democracy. Other countries have extremely weak judiciaries that are really sort of bound up with the legislative branch. Right. There’s parliamentary supremacism in lots of other nations where the democratically elected branches are the ones that make constitutional decisions. Can you imagine the idea of people who are actually elected by the citizens making constitutional decisions that is so foreign to the American experience? And yet it seems to be what almost every other democracy does, particularly those that are thriving as America is in decline. So I just want to put this pitch out there that I think we need to move beyond this very narrow vision of what a functioning checks and balances system of democracy means in the United States and maybe look to our neighbors and maybe think about why Justice Ginsburg always said, I advise other countries not to look at the United States Constitution when they are writing their own, because ours is old and creaky and dysfunctional and does not work very well in the twenty times and twenty twenties. And so, you know, if it’s time for a revolution in how our federal system works, bring it on, because it’s got to be better than whatever the Federalist Society has in store for us with its judges just implementing the Republican Party agenda for the next 50 years, I make the direct connection between what Marx said and, again, the black experience and what we’ve been seeing on our streets since the murder of George Foy.
S3: Right. Like justice in this country is broken and some people bear the brunt of that brokenness more than others. So to the extent that we are right now, in a moment where, quite frankly, white people are finally willing to at least consider this concept that justice is broken to the extent that George Floyds murder has opened some eyes, to the extent that Brianna Taylor’s killers getting off scot free have opened some eyes, to the extent that our death and the willingness of Republicans to manipulate the Supreme Court system to the point of naming her replacement after an election has already started has opened some eyes like that’s that’s an opportunity not necessarily to just restore things to the profit, to the former order, which wasn’t working for so many people, but to kind of think expansively, no pun intended, and creatively about what justice actually is and should look like in this country. So I wouldn’t I I certainly wouldn’t hold my fire on that opportunity simply to prop up an old system that hasn’t really worked all that well, if we’re honest about it.
S1: Both of you are saying what Ian Millhiser has written years ago, what Adam Cohen has written this past summer, what Erwin Chemerinsky I mean, it is not news and should not be news to most people that all of our fanciful thinking about the Supreme Court, that’s like pretty much locked in around Brown v. Board and forgets everything that came before and virtually everything that came after has actually been the thing that has allowed Democrats both to fall asleep at the switch in terms of organizing and messaging around, like we still think that we’re winning on our side. And we thought we were winning when we had an. And three octogenarians and Donald Trump running for election, and we were like not willing to vote based on the court. So I think that in a weird way, you’re describing this sort of learned helplessness that is just cannot be extricated from the Democrats very, very fanciful ideas that the court is an institution that protects minority rights in virtuous and good ways, that always benefits vulnerable communities. And that’s just descriptively not true. So you’re sort of saying the thing was already broken all along and not only was already broken, but we’ve told ourselves stories about how wonderful it is for so long that we’re drunk on it and we need to sort of sober up and also realize the dream was never the dream. Right.
S3: I mean, how how how do we understand the progress of of gay rights, not just in our lifetime, but literally in the last five minutes? Right. Do we understand it as Anthony Kennedy, the Moses of gay people, freeing them or or do we understand it as a dedicated grassroots effort to change hearts and minds throughout the country that got supercharged after the worst electoral decision in terms of California’s Prop eight, that got supercharged after that with gay rights activists and people of conscience banding together to change hearts and minds, including the heart and mind of a Democratic president and Barack Obama like that. To me, that is the story of why gay rights has been successful. Anthony Kennedy does not make the decision. He makes it popular. Will isn’t completely if Anthony Kennedy does not understand that he is now standing on the right side of history. So I don’t think that it’s not like I’m saying that the Supreme Court decisions were not important and we’re not really, really helpful. Supreme Court decisions do have an important effect in our country of legitimizing things that are happening. But there are things that are already. But my point is that there are things that are already happening, right? There are things that already have to happen on the ground and people’s hearts and minds in the polling booth before it percolates up to the Supreme Court, which then can stamp it almost retroactively with, you know, with an imprimatur of legitimacy.
S8: And my theories of blowing up the court loses that stamp of legitimacy like that. That is what I’m willing to give up in order to stop basically the Republicans from getting control of the Senate, because what they want is to have legitimacy on, I think are horrible things. And they are they are unabashed about what those horrible things are. I don’t I am willing to give up my stamp to take away theirs.
S1: So let me ask you both this last question, which is the one I’ve been sitting with. I think if Donald Trump and Mike Pence and Mitch McConnell and Lindsey Graham fish their wish, they’re going to have somebody seated at the court before the election. And the election may well be decided by a six three court, at which point we just say that’s not a legitimate court and I don’t abide by this decision. Is that where this is inexorably headed more?
S5: Does Roberts vote with the majority to hand Trump the election? I think that is a big factor here. If it is a five to four decision where even John Roberts does not sign on and he joins the liberals in dissent and says this is ridiculous, we are handing the election to Trump for no good reason. And Trump’s new RBG replacement joins the four horsemen and says, too bad. So sad we’ve got the votes haha. Then no, that decision is not legitimate and should not be treated as legitimate and should not be accepted. If John Roberts joins the conservatives, I think it’s a little more complicated. I think it’s really difficult and it’s not something I think I can really game out at this early stage. But I don’t think that the first response should be, of course, we accept the court’s decision from Democrats. I don’t think that they just lie down.
S1: It’s not Al Gore. In 2000, the court has spoken.
S5: No. And think about what Republicans were planning to do in 2000. Right. I mean, they were they were ready to do what allegedly Trump’s advisers are now are now cooking up, which was to just have the Florida legislature declare Bush the winner and assign assignment’s electors to him and end run around the people’s vote. And arguably, like around the Constitution, Republicans were willing to play hardball and Democrats emphatically were not. That cannot happen again twice in 20 years is just too much.
S1: And same question to you, Ellie.
S3: Yeah, one of the reasons why I’m not freaking out about the attempt to pack the court before the election as much as some is that I think we already lost the election. If it gets to the court, we’ve already lost because I’ve never thought that John Roberts was going to be on our side on that. You’ve already mentioned and I think he did a great piece a couple of weeks ago really detailing how the one thing that we know about Roberts is that he hates people voting like that. That is the consistent thread. Through his entire career, John Roberts has been an enemy of voting rights through his entire career. I did not expect him to change in twenty twenty. So I already thought we were losing the election five, four, if it got to the court. The difference between losing the election five, four, with Roberts and Ginsburg in dissent versus losing six three with ACB and Sotomayor in the Senate is is less important to me.
S8: We were already going to have to make a decision about whether or not we would accept the court’s ruling of handing the election to Trump. Regardless if Trump has such a crazy whack a doodle legal argument to steal the election that he can’t even get John Roberts, then guess what? He can’t even get Neil Gorsuch. Then then then even if they pack the court, it will still be five four, because I do not think that there is an argument about voting rights that appeals to Roberts but doesn’t appeal to Gorsuch. Like I think to those to those who are going to be are going to move as a bloc. They’re going to move as a bloc, I believe, to win the election. But, you know, if in some weird world they don’t want to hand the election to Trump, I think those two will move together. So I don’t think the actual election vote count sorry, the vote count might change, but the final electoral conclusion, I don’t actually think I think changes all that much with or without RBG. I just I never did. Now, what we do after a court hands another election to another Republican president by suppressing votes during the middle of a global pandemic. What we do with that information? I got some thoughts, but but but but that information, I don’t think has changed significantly.
S1: Eljahmi style is the nation’s justice correspondent. He covers the courts, the criminal justice system, the law and politics. And he is a must follow on Twitter. Mark Joseph Stern covers the courts and the law and LGBTQ issues and state courts for Slate. Also a must follow. And also both of these guys are really, truly helping shape my, as you can tell, boxing kangaroo thinking as we work through this. And Mark, you are going to stick around for our Slate plus only segment that follows immediately. And that’s about Pennsylvania and naked ballots and shenanigans across the country. But for now, thank you so much for being with us.
S3: Thank you for having me, Dahlia.
S1: And so Slate plus members, welcome to our extra extra top secret, high value only the Truth Slate plus segment. We have just talked about the election and the law and there’s like more than two hundred lawsuits around the country in forty five states and Puerto Rico and the district invoking, you know, pretty much every single either trying to expand the franchise or circumscribe the franchise. Mark Joseph Stern, our wonderful legal correspondent, is here. We cannot Mark, I think it’s fair to say, talk about all 200 lawsuits, is that right?
S5: Yeah, probably we could try to do a power our way. We squeeze them all in, but that would just be cruel, unusual.
S1: And they sort of come under these various buckets of either states trying to make it easier for people to vote during a global pandemic and being batted back by the Trump administration or states making it harder for people to vote by mail or to do anything to make it harder for people to vote, being batted back by the good people at the ACLU and Marc Elias and other entities. Right. So that’s the collision that we’re looking at.
S6: Yeah, yeah, yeah. I would just add, you know, the the decisions expanding the franchise, those are being fought not just by the Trump administration, but by the Trump administration in tandem with the Trump campaign and Trump himself. Right.
S5: So there is this totally unprecedented but little remarked upon effort at the Justice Department to just go all in for Donald Trump and his lawsuits here. I mean, it has backed him in these previous decisions, like trying to duck the subpoena out of New York. And just on Thursday, we saw this bizarre press release that had to be corrected, that suggested there was anti Trump election fraud in Pennsylvania. Right. And then you have the Trump campaign arguing that states shouldn’t be allowed to send ballots to all voters, which is like a totally frivolous claim, but whatever. And it’s like it’s all the same. And we should just note before before we accept this is the new normal, that it didn’t used to be this way. Right. That it used to be that when a president was running for reelection, like his campaign fought these political battles and his administration remained relatively apolitical and kept doing the work of the United States, no longer the United States as officially represented by the Justice Department and the Donald Trump campaign and the Republican National Committee are now all the same.
S1: It’s funny, somebody asked me when the Bush v. Gore of twenty twenty comes, is the solicitor general going to be arguing on behalf of the Trump campaign and the fact that you can’t say, like, I don’t know that Bill Barr is not going to intercede in that. I mean, it’s shocking. It’s really shocking that this is the Justice Department is part of the campaign now. And you’re right, this just didn’t used to happen. I want to talk about Pennsylvania with the caveat, Mark, that we could easily talk about North Carolina. We could talk about Nevada. I mean, the pattern we can talk about the felon disenfranchisement in Florida, which you’ve been writing about, but the pattern is just the same. And we can’t anticipate which of these is going to become thermonuclear. But we can at least talk about Pennsylvania as emblematic of some of the strings that are being pulled. Right. So do you want to do you want to I mean, again, there’s a bunch of lawsuits, but can you talk us through if we assume that Pennsylvania is a template for what’s going on, what we’re seeing there?
S5: Well, we’re seeing this very strange Justice Department investigation into what appears to be a handful of ballots, apparently military or overseas ballots that were inadvertently opened and spoiled by election officials.
S2: And that is not really surprising with super decentralized elections that are sometimes run fairly messily on the state level.
S5: It is no indication of fraud here. It just looks. Like a silly mistake, and yet the Justice Department has leapt in and issued a press release about this that strongly implied that there was fraud and that, in fact, there might be some kind of undercover operation to sniff out pro Trump ballots and like invalidate them or nullify them before the election so they can’t be counted, which is just totally untrue. And they were actually factual errors in the Justice Department’s press release that then had to be corrected. But, of course, all of Trump’s people on Twitter and on all of the misinformation networks leapt on this and said, look, here’s proof, right, that voter fraud is real and that it’s against Donald Trump. And I think we’re going to be seeing more of this. Election officials make mistakes. There are like thousands of them. Many of them have full time jobs elsewhere and do this to try to be good citizens. And the Trump administration and the Trump campaign are paying very close attention to try to find any kind of indication of any little slip up or any error involving absentee ballots and use that to try to suggest and then later argue in court that basically every mail in ballot that goes against Trump should be disqualified.
S1: And let’s be really clear, Billboard telling Wolf Blitzer that Nevada’s going to steal the election by ginning up thousands and thousands of fraudulent mail in ballots. So, again, this is this is something that hand in glove, Justice Department and this administration and this campaign are working to say the reason we need to stop counting on the night of November 3rd is because everything that comes in after is fraudulent. And it’s a juggernaut. Right. Whether it’s the privacy envelopes, you know, in the mail, in ballots, there’s every single prong of this is an attempt to find a way to say in advance that every single ballot that is received by mail is fraudulent.
S5: Yeah, absolutely. I mean, Barr has said so much crap. That’s just all total nonsense about how foreign actors are going to fake ballots and slip them into the stream, which is emphatically untrue that, you know, these states are just sloppily sending out thousands and thousands of ballots to everybody in the phone book, basically. And just hoping for the best in all of this is untrue. Right? Like states have been developing really careful, meticulous and secure vote by mail systems for many years, many decades, in fact.
S2: And like they work quite well, the military, the military, the military, like they every single state is supposed to be sending out absentee ballots to the military by September 19th. And yet you still have Bill Barr complaining that, oh, the election lasts for too long. We’ll tell that to your military voters who you apparently don’t want to have enough time to actually cast a ballot. Right. I do want to say, while we’re while we’re on this topic, while I mentioned Pennsylvania, like there is a huge issue in Pennsylvania right now, which is that the state Supreme Court recently issued a decision that had a bunch of good stuff for voting rights. And then one really bad thing, which was that the court said a naked ballot, which means a ballot that is returned in just one envelope and not in the privacy sleeve, cannot be counted, which is a new rule in Pennsylvania. Let’s be clear. For many years in the past, election officials have counted the so-called naked ballots. So I think it’s like a sort of a duty for anybody talking about the election at this stage. To just remind listeners in Pennsylvania, I even made up a little slogan for it.
S6: Don’t be naive. Use the sleeve, OK? Your ballot will come with a little secrecy sleeve. It’s like a little condom for your ballot. You need to slip on the sleeve and then you put the sleeve in the outer envelope, OK? And make sure you sign wherever it says to sign and read the instructions very carefully, because there are bad people out there who are looking for every reason to nullify your vote and you just don’t want to give them any.
S1: And it’s worth saying I’ve heard from several places that that privacy sleeve is going to be the hanging chad of twenty twenty and that this is going to be the thing that that tangles us up. Although you read Bart Gellman this week, I read Bart Gellman, the fact that there are four hundred things that could be the thing and that even after November 3rd, there could be four hundred other things that can be used in the interregnum. Makes it really hard to have these conversations, these very speculative conversations about what’s going to be challenged and where. The last thing I want to ask you, Mark, because this has just been like a shadow hanging over me after the Wisconsin primary when people stood in line. Right. We go from one hundred and eighty some precincts to five in one jurisdiction in Wisconsin. You wrote this piece that kind of broke my heart where you said, you know, everybody’s touting these folks in Wisconsin who stood in line for hours and risked covid to vote. Everyone’s holding them up as heroes. And it’s really tragic that you have to risk death to vote and then that makes you a hero in American. I’m finding myself now in a lot of conversations where people are saying, I guess we shouldn’t vote by mail. I guess we have to vote in person. And, you know, we interviewed a classmate of our views this week is going down to Florida, putting on a mask. And I’m really. Very, very confounded about whether I’m supposed to be telling 80 year old voters to risk their lives. There are 200000 covid deaths. It is not abating. Should they risk their lives and go vote in person and be, quote unquote, heroes under your construction?
S5: No, I don’t think so. And I totally understand where the concerns come from. And anyone who feels personally moved to vote early in person because they are worried about Trump stealing the election. Do it. Don’t let me stand in your way. But we are in the middle of this fundamental transition in the way that Americans vote.
S2: We have been in this transition for many years, moving away from in-person voting toward voting by mail. It seems to be accelerating under the pandemic and understandably so. There will be bumps in the road. And the fact that it is accelerating so quickly does mean that there will be huge issues this year, like naked ballots, right. That the hanging chads of twenty twenty, I get all of that. But I think that it is a really important goal to complete this shift, to move Americans toward the idea that vote by mail is the way that you vote, that it is normal and it is good and it is responsible because it is a superior way to vote. In my view, it is just objectively better look at states like California and Hawaii that just send ballots to every registered voter. Look at how the turn out their surges. Look at how people really engage. They don’t have to worry about taking time off their jobs. They don’t have to worry about catching a virus while they’re voting. Right. A disease they don’t have to worry about three hour lines, OK? They don’t have to even worry generally about like a poll worker rejecting their ID. They can do it from their kitchen table. Voting by mail is a is an objective, normative good. And if this is the election where we all have to wave our hands and run around like our hair is on fire, teaching people how to do it in the span of like six weeks, it’s still worth it. And it’s even probably worth it if a lot of ballots get thrown out, presuming that doesn’t change the outcome of any races, because in the future, people will learn how to not make those mistakes. Hopefully states will reform some of these laws, make them more practical. And I really do foresee a country in two or four, six years where turnout is so much higher than it has ever been permanently every single election cycle, because everybody is getting their ballots in the mail.
S5: They are casting those ballots. They’re participating in their democracy. And everybody has equal access to the process for the very first time in American history.
S1: That is an incredibly happy note to end on. The stern covers the courts in the law here at Slate and joins me every episode for this increasingly helpful and valuable slate. Plus conversation about things we missed during the week. Mark, thank you so, so much. I know you are also grieving deeply over the loss of Justice Ginsburg, and I am so, so sorry for your loss.
S5: Thank you. Seem to you and just to all of our listeners in Pennsylvania, don’t be naive. Use the sleeve. We’re having t shirts made.
S4: And that is a wrap for this episode of Amicus. Thank you so much for listening in. And thank you really for your letters and your questions and your condolences this week. You can always keep in touch with us at Amicus, at Slate, Dotcom. You can always find us at Facebook Dotcom Amicus podcast. Today’s show was produced by Sara Bermingham. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate podcasts. We will be back with another episode of Amicus in two weeks. And until then, hang on in.