Have Progressives Lost the Courts for Good?

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

S2: Every American should realize that they will not be able to protect themselves in court if the courts are biased and are subject to this kind of political attack.

S3: Hi and welcome back to Amica. This is Slate’s podcast about the law and the rule of law and the Supreme Court and the judiciary. I’m Dahlia Lithwick and I cover these things for Slate. There’ve been plenty of court related headlines in the past few weeks while we were focusing on our Election Meltdown series with the president’s call for two justices, Sonia Sotomayor and Ruth Bader Ginsburg, to recuse themselves in all Trump related matters because he says they’re biased.

S1: More abuse from the president directed at the judge and jury forewoman in the Roger Stone trial. Attorney General William Barr hinting he might quit if the president keeps tweeting. But I guess getting over it, getting over it is the new integrity. Next Wednesday, the court hears arguments in June medical, that’s the abortion challenge, raising the same exact issue as whole women’s health decided in 2016. We will devote the next show to covering those arguments and what comes next. This week, because there is just too much to too much happening. Slate Plus members are going to have access to a brand new segment in the second half of the show with Slate’s own fantastic Mark, Joseph Stern, where Mark is going to try to round up all the big Supreme Court and federal appellate court news. We just cannot get into the main show, like the Supreme Court’s decision to take up a controversial Philadelphia religious freedom case next term. And a Second Circuit ruling this week on sanctuary cities. Plus, the court’s 5 4 opinion in a cross border shooting case to become a slate plus member and access that and a whole bunch more ad free bonus slate content. Go to slate, dot com slash Annika’s. Plus you’re also supporting Slate and all the journalism we do here. Now, I want to turn to what has become a kind of foundational question when we think about the Supreme Court. The federal courts and the rule of law. And it’s a big, big question that thus far we’ve just not really been able to answer. On one side, we have the conservative legal establishment, this juggernaut that is the Federalist Society and the well-funded, often very secretive legal groups that have packed the courts with lifetime appointments for very young, hard line judges. The left’s answer to that machinery rather more muted includes the ACARS or American Constitution Society. And this week, after a lengthy search, ACMA announced that Russ Feingold, the former Democratic senator from Wisconsin, will lead the group in its efforts to push back against what’s been a sea change in the federal judiciary. And what Feingold sees as fundamental threats to the independence of the Justice Department. Senator Feingold, who served on the Judiciary Committee for 16 of his 18 years in the Senate, has among the items on his new to do list at the helm of ACARS. The job of answering the conservative juggernaut question, he has to think about ways to counter the more than 190 new judges that have been seated, including two Supreme Court justices and more than 50 federal appeals court judges, all of whom are going to shape the legal landscape for probably decades to come. So no mean feat. Very excited to talk about it. Welcome to Amicus. Senator Feingold.

S4: Well, Dahlia, I’m thrilled to be on your show. Your role in making understandable for the American people and the court system, particularly the Supreme Court, is one of the critical things that has to be done. And frankly, a American constitution society relies on this kind of communication to get its message out, which is that we have got to really up the fight against the attack on the rule of law so that everybody can participate in the legal process. And so we can have progressive change in the legal system. You are right that the conservative right has run the table on us and we have got to mount the strongest fight we’ve ever done to restore the rule of law and to have a fair opportunity to have progressive change occur.

S5: So I guess we’ll just stipulate and I don’t think this is a controversial proposition that you now arrive at. A ACA has kind of burdened with at least some sense that huge, huge damage is done, that in a really compressed amount of time. We’ve seen a sea change in the courts. And you probably read a couple of articles this week about even the Ninth Circuit is changing in front of our eyes. More than a third of its active judges are Trump judges. Reporting from L.A. Times suggesting that, you know, some of these judges are even before the paint dries on their new chamber, you know, calling to take things on Bonk and trying to reverse longstanding precedent. So there’s this sense that it’s it’s really all happening very quickly and circuits are flipping. They’re going to continue to flip. And I guess I wonder if it’s sort of absent big structural reform. You know, whether it’s court packing, you know, adding new judgeships to the Supreme Court or creating a whole bunch of new circuit court seats or term limits for sitting federal judges or jurisdiction stripping. You know, the idea that we just take some issues away from the courts and all of those things are floating around in the ether as possible solutions. But I guess the question for you is, isn’t the damage already irreparable?

S4: Well, it’s a very depressing development and it’s a huge challenge to see very young ideologues put on the court intentionally to try to lock down the courts for future generations. I like to kid around it. For those who have to take property law and law school, there’s a rule called the rule against perpetuities, which means you can’t lock down your your your your possessions for several generations into the future. But the right in this country is trying to do that, essentially create the dead hand of their generation to dominate our legal system for many years to come. And so we’re at the bottom of the pit right now. But, you know, it sort of reminds me maybe it’s not the best comparison. But I remember when Lyndon Johnson won in a landslide in 1964 that some of the magazines at the time, Time magazine said, is this the end of the Republican Party? In other words, there is this sort of momentary feeling that nothing’s going to change. But the one thing I am certain about the American people is they tend to go back and forth. And although this is a very troubling time and the conservative right has taken maximum advantage of tilting our legal system, this will turn around. It may turn around this year. It may turn around in a few years. But ACARS and all the people in the legal system were concerned about this after both a short term and long term strategy to reverse this problem. And that that is exactly the challenge that I face, along with other leaders who are concerned that the legal system and our institutions are under unprecedented attack.

S6: It sounds as though you’re at least open to some kind of structural reforms. You know that that it’s not your position, that you know that if, for instance, a Democrat wins the White House and Democrats gain the Senate, that we necessarily go back to the filibuster rules and the blue slips and all the things, the systemic disadvantages. I think the other question, the harder question is, are you open to at least talking about court packing? Are you open to talking about term limits or just sort of best not to talk about any and all that?

S4: I’m not I’m not just open to it. I’m going to talk about it right now. But but in the context of the fact that ACARS doesn’t take specific positions on issues like this, but it does try to play a lead role on trying to foster a conversation with experts across the country who are looking at this issue. So, look, I’ll be honest. I told my students here at Stanford Law School the other day that throughout most of my life, I was horrified at the idea of, you know, term limits for four Supreme Court justices or, you know, packing the court. I remember when I was lucky enough to be at Hyde Park to receive an award from the Roosevelt Foundation that I asked him a question about court packing and the person turned to me, was giving me the tour and said, Senator, here we referred to court reform. So I thought, you know, the right is always cited. The the attempted so-called court packing by Franklin Roosevelt as being some of the outrageous thing.

S7: But what have they done? They have packed the courts. They have packed the 9th Circuit. They have packed the appeals courts with right wing ideologues for the specific purpose of dominating those courts for the future. So we have to go back to the founding of the country and end this. It does nothing to do with political party. This is something that I think is not only by not just bipartisan. I think it’s nonpartisan. We all know that the founders of this nation never anticipated that people would have a very reasonable expectation of living to 90 or 100 years old and that there would be a political movement in this country based on ideology and harsh partisanship to try to put 35 and 40 year olds on there to dominate the courts for 50 or 60 years. This could not have been anticipated and it can’t be right. And so, yes, I think us and others should have a real conversation with. You know, there’s brilliant academics around the country that have written pieces about, you know, should there be an 18 year limit? On on a Supreme Court justice, should there be, as you say, more justices? People seem to think that that there’s always been nine justices. That’s not true historically. The Constitution allows the setting of the number of justices to be done by the Congress with the president. And so I’m not advocating any one of these things. But clearly something is wrong when we have to worry about the health of of elderly justices who are begged to stay on the court longer than may be in the interests of their health and their family. This is this is wrong and there has to be a solution. And so I’m looking forward to having a very serious conversation with the students across the country, at least over 200 law schools with academics, with lawyers and with the public at large. Do they really think the current system is appropriate, given the realities of life and politics in the 21st century?

S5: I so appreciate you being willing to engage on these issues, because I have just been so disheartened by watching all the primary debates and the utter failure to talk about any of the ACARS issues that you’re raising, whether it’s the politicization of the judiciary, the sort of breakdown at the Justice Department, structural core reform, and just complete silence on these issues from the candidates. And sort of the reason I wanted to talk to you about how we talk about these issues is exactly what you just said. The failure to discuss it, the failure to put it into the public discourse doesn’t make it go away. It just means that when we hear the words court packing, we kind of freak out. And I wonder if part of the reason that none of the nominees really want to engage in conversations about how bad the changes in the judiciary have been is just because I don’t know, it’s irreparable if the damage is done or because the solutions would be too radical for voters. And so I guess I just want to ask you. Maybe I’m wrong and you’re wrong. And this is a smart strategy to just pretend that the courts don’t matter and her Justice Department doesn’t matter. Or if there’s some way to kind of goose this issue so that it is front and center going into the general election.

S7: That’s a great question. And the first thing I would say sort of in defense of the candidates is I understand their reticence in terms of talking about this, because in the past, the idea of court packing or, you know, somehow going after the federal judiciary through the Congress has been something that the right has talked about because of their claim that the courts were too activist. For example, under Earl Warren’s chief justice ship, I remember there used to be billboards, impeach Earl Warren. And so I think there is a reticence to sort of open the door to a sort of politicized way to attack the very structure of the court. Courts, you’re not hearing this from the right now because they have control. The problem is, is, is that this issue is fundamentally distorting our federal judiciary, allowing previous generations to completely dominate the world and the reality of future generations. And so I would say it is time for all of us to get over that reticence and to try to figure out a solution. So how do we do it? Well, these debates, I think we’ve had enough shouting between the candidates about, you know, health care plans and some of those issues. Yes. The moderator should be encouraged to ask questions about this. How do people feel about the court? How do they feel about life tenure? How do they feel about the number of justices and other solutions? AC Yes. Does not have a position specifically on this, nor will I as president of AC us. But that doesn’t mean, as you say, there shouldn’t be a very serious conversation during the primaries and then in the final debate between whoever the Republican nominee is and the Democratic nominee. This is an important time for the American people to hear this as an issue. This is an important time for the American people to see how critical the composition of the United States Supreme Court and the federal judiciary is to their daily lives. You know, the Declaration of Independence promises all Americans the opportunity to pursue happiness. You cannot effectively pursue happiness in a society where the legal system is tainted, where the average person can’t feel trust, that the legal system is legitimate. That’s what’s at stake here. And it needs to be put in those terms as well as the specific ideas that are out there. And if you do this during a presidential debate, when proposals are actually made possibly for constitutional amendments, possibly for legislation, then the American people are prepared for the possibility of these changes and they may find them more reasonable because somebody took the time to talk about it.

S8: So I’ve been grousing about this for I guess I’ve been covering the court for 20 years. So let’s say for 20 years I’ve been grousing about the fact that I think that progressives have done a really bad job of communicating to the American public what it is that a progressive judge does and that sort of Republicans and conservative legal theorists have kind of occupied the field. They have put down all these markers where they say, you know, we believe in strict construction and originalism or, you know, original intent or balls and strikes. And we believe in minimalism and humility. And you and I, I think, don’t need to belabor the ways in which some of those are just, you know, shell games. They don’t actually represent a judicial theory, but they’re awfully compelling as rhetoric. And I’ve found myself so frustrated even covering, you know, the John Roberts hearing that the Sam Alito hearings with the sort of Democratic answer to that is like, oh, we just want judges who have. Hearts. You know, we want what I call the cardio logic model of, you know, progressive jurisprudence, and I know you have never made those claims, but I do wonder if, you know, part of what’s hard in terms of what ACL is trying to message is that we don’t have a really good descriptive theory of the case. We don’t have a way of saying progressive judges do X. And I wonder if you could give me your sort of best pitch on what you would say we are looking for or what we ask for in judges. That is kind of the answer to humility, balls and strikes, strict construction, whatever the talking points are that are so salient when they come from the right.

S7: Well, this is the old the core $64000 question here. This is the fundamental issue for AC us and for progressives across the country. There has to be a rigorous and coherent philosophy of what the court should do vis-a-vis the Constitution. Now, as we know, the conservative right in this country has seized the mantle of originalism and they have used it in a way, as you suggest, that is sort of effective in terms of if you ask people in a poll, do you think judges should follow the original intent of the founders? Well, of course, people are going to say, yes, that is our foundational document. That is the basis of our system. Without it, the government is not legitimate. And so that sounds good on its face. But as many great scholars across the country have demonstrated, including Paul Brest at Stanford Law School, where I am right now, and others, including many who are articulating it now, this idea of originalism and original intent has been manipulated. Those on the right find it very helpful when they want to strike down campaign finance reform under supposedly under the First Amendment. But they’re not so good about originalism when it comes to the 14th Amendment and the Voting Rights Act. And so it’s it’s used it’s used as a weapon. It is used as a shield and it is manipulated, not based on actual intent. So what would a progressive judge do? I would think a progressive judge would definitely pay deference to the original intent, or at least the meaning that though that the intent would have had at the time. Of course, the text is so-called textualism. That’s important. You look at the text. But I think what progressive judges say is in addition to that and gaining what you can to understand what the founders intended, then you also apply the law to the current situation, adapting the law to make sure that the law is consistent with the needs of the people in the 21st century. What is the point of a constitution that is so stuck in time that it can’t adapt to our concerns? I had a wonderful student in my course on amending the constitution here at Stanford last year. Write a paper about the need for a constitutional amendment that would address the issue of climate change, because clearly the founders could not have imagined something like the kind of climate change that is occurring. So that would be a constitutional amendment. But at that kind of discussion about certain unanticipated things having to be considered into the constitution and its intent has to be as least adapted to the current reality is something that progressive judges hopefully would do. And this is this is something that I hope to refine for the American Constitution Society and for progressive lawyers across the country. I’m not the guy that is perhaps best at that in terms of scholars, but maybe I can gather the ideas of the scholars around the country and help put it in terms that people will say, oh, that that makes sense to me. Of course, we want to respect what the founders felt about this, but we also have to have a reality check on life in the 21st century and have a legal system that actually responds to the problems and concerns of the American people going forward.

S8: So I I opened in my intro talking about Federalist Society and the sort of conservative legal advocacy groups. And I described it as a juggernaut. This sort of full service cradle to grave enterprise that identifies promising young conservative law students and then sort of grooms them, gives them all sorts of, you know, junkets and education, and then gets them coveted clerkships with a handful of judges and then pushes them right onto the bench. And that is, you know, sort of the Acme machine boom, boom, boom that we have seen decades long effort really pay off with Mitch McConnell, pretty much blessing that that kind of plan. What do we do on the left when progressive? I mean, they’re just not as organized. They’re not willing to march in lockstep. There isn’t the sort of full service, even with ACLU chapters, which I know the numbers have skyrocketed since 2016. The numbers of chapters in law schools around the country.

S5: But there just isn’t that sort of unified, laser focused. We are going to sort of from cradle to grave groom liberal judges. And I wonder how you think sort of structurally about ACSU, his role in that, or do you just sort of reject the idea that that kind of single minded unitary lockstep proposition is something that the left should be tilting at?

S9: Well, the first thing I want to say, definitely tongue in cheek is you have to give the devil his due. And I am not suggesting that it’s that the Federalist Society is that. But using it sort of tongue in cheek, you got to give him credit for having had the willingness to put together an organization and gather the funding and aggressively go forward to achieve their goals. Having said that, I don’t think that’s the approach that Progressive should use.

S7: I don’t think there should be a gatekeeper that says this person is qualified to be a judge or a justice. And this person is not because I actually believe in starting with the Constitution. Nowhere in the constitution does it suggest that a private group should be the gatekeeper for who the president and the Senate can choose. It is the president who has to nominate. It is the Senate who is to give advice and consent. The American Constitution Society respects that. Now, having said that, I think it’s critical that the American Constitution Society and other groups up their game now to try to identify people. Should a president or the Senate ask who would be good for these positions? And that means identifying talented people when they’re in law school, when they’re starting their careers, whether it’s in private practice or in a government office or the the Justice Department, and helping people connect with each other. So having a pipeline where people are identified throughout their careers, but also a network connecting these people with each other. And this is where I hope to work hard to not only expand the number of student chapters, which, as you say, is over 200, but to connect them nationally with the lawyer chapters that exist in many states. I have to say with pride that one of the best examples of this is the connectivity between the University of Wisconsin, Madison Law School, American Constitution Society and the lawyer chapter there, which is, I think, one of the best in the nation. And we also have to realize that this effort should not just go on in the classical urban law schools or liberal areas. I happened to be giving a speech at a Fowler School of Law at Chapman University in Orange County, California, a few weeks ago. And I had a chance to meet with a group of really gutsy young students there who created a new ACW chapter. The difference here, Dahlia, is that many times you’re in the midst of a very liberal student body. This is the opposite. This is a situation where there are a fair number of conservatives and the progressives might feel a bit isolated. AC US needs to make sure that chapters like that feel supported. Typically, the Federalist Society has much more in terms of resources to bring in big speakers and people that attract a lot of attention. You know, they the federal society has asked me at all the law schools. I’ve been out to participate in their programs with others and I have and they’re excellent programs. But that has a lot to do with resources. So the ACLU needs to be properly resourced and it has a strategic plan that was created in anticipation of having a new president that specifically says this pipeline of talented lawyers has to be strengthened. We have to make sure that there is an actual networking between all the different progressive lawyers in the system. And ACSU has to be a a thought leader on the kind of issues you’ve already asked me about, not taking a position, but facilitating a real conversation about. What should be the approach of her confirmation in the United States Senate? What should be the tenure of a federal judge? And finally, this. Yes, and all the people we’re talking about should be supporting litigation, should be supporting communication and all the things that have to go to actually get this message out of a progressive change under the Constitution. Get it out to the American people and get it into all the legal venues that exist. So this is the central challenge for us. And if we don’t do it, it will not be enough to simply hope that the election goes in a certain way.

S5: Before we leave the Federalist Society and the Heritage Foundation and the other groups that have kind of place themselves at the epicenter of seating judges. I want to ask one last question. And it goes to McCain-Feingold, which your name is on. You know, this signature legislation that was attempting, I think, to, among other things, keep sort of dark, secretive money out of politics. And I wonder if you in your head can help me draw a straight line between sort of the rise of some of these very secretive groups with secretive donors.

S8: I know your former colleagues, Sheldon Whitehouse has been on our show several times trying to sort of sound the alarm about what it means to have secret donors who are, you know, funding ads for Neil Gorsuch, are funding ads for Bret Cavenagh or, you know, deeply involved in helping get Justice Cavenagh seated. And I wonder if you see all of this as sort of originating. Is this sort of Typhoid Mary here is patient X, the death of the parts of McCain-Feingold that actually sought to stop the exact thing we’re seeing now, which is unaccountable, dark money, kind of buying the judiciary.

S7: You know, there’s a lot of misconceptions out there. People somehow think that the McCain-Feingold bill was overturned and Citizens United. That is simply wrong because the foundational law that they went after was the Tillman Act from 1987. It was a progressive law led by progressive senators, including fighting Bob La Follette from Wisconsin and signed by progressive Republican President Theodore Roosevelt. And what it was, was a way to try to stop the extreme influence of effectively the robber barons on our society. The oil interests and others had already captured the economy.

S9: And before the Tillman act, they were hell bent on dominating the political process. So in 1987, it was passed and became the law of the land until Citizens United in 2010. The corporations could not contribute to political campaigns. Somehow the court decided in 2010 on a 5 to 4, in my view, really bad legal decision that somehow without any real record that well, this law really doesn’t make sense anymore and it’s not appropriate because corporations should have the right to speak like everybody else. I think that was bad law. I think it should be overturned. But it is the reality that we’ve been facing and what it actually did. Technically, it only related to corporate expenditures.

S7: What it actually did was sort of change the norm or the attitude people had even about individuals spending unlimited money on trying to support a candidate that was technically legal, but really wasn’t done until Citizens United. And now you have this enormous amount of secret dark money, as Senator Whitehouse has talked about. So one thing people forget is if you look at Citizens United, yes, they made an awful decision, but eight out of the nine justices said, well, we, of course, assume that Congress will require the disclosure of all this money. Well, sure enough, that hasn’t happened. That is what the decision is premised on. The decision is is wrongly premised on the idea that this kind of money sloshing around is really independent. We all know that’s not really true, but it isn’t even disclosed. So we don’t have the opportunity to see where it’s coming from. So people have to be given the opportunity to see that this is a flaw that has to be changed in order to give the people of this country a chance to see what has happened to their electoral system and their campaign finance system. And so going forward, the ACLU doesn’t endorse specific legislation, but there has to be a conversation about should there be required disclosure, should there be some real penalty for so-called independent expenditures that aren’t really independent? You know, is there enough are there is there enough teeth in the law? Is there any real enforcement mechanism in this country if there are campaign finance law violations? Because as we know, the Federal Elections Commission is pretty much dead like deadlock. Most of the time, because of the way it structure with four Democrats and four Republicans. And so. The future is about, of course, in my view, hopefully overturning Citizens United at some point. From my own personal point of view. But there are all kinds of legislative and other things that should be discussed and highlighted that could be done at the federal level as well as the state level level. We forget sometimes and I’m glad a/c us is so engaged in this. It’s his state attorney general’s program to try to realize that that’s a powerful venue if you have a progressive attorney general. There are many different opportunities to affect change in this area, and I’m hoping ACARS will lead the discussion of what can be done. What kind of litigation might be available, and then let progressive lawyers and others go forward and see what they they want to do. But we we are at a very bad point in the history of campaign finance. Truth is, the McCain-Feingold law was working extremely well. It had been successful in 2004, 2006 and 2008. We did not have these kinds of unlimited on unaccounted for contributions. The system was working. People were raising large amounts of money from small contributions of 10 or 25 or a hundred dollars through the Internet, whether it was Howard Dean’s campaign or Barack Obama’s campaign, my own campaigns. To me, that’s electronic democracy. And I believe the corporate and conservative interests in this country panicked. And they engineered what I consider to be one of the worst Supreme Court decisions in the history of this country, Citizens United, because they were afraid of the democracy of all the people. And we need to change that.

S5: I want to ask you my my asymmetry question, because it’s become I feel like it’s become the linchpin of this show and I ask every test, some version of it. But here, here’s the version I’m going to I’m going to pitch to you. We’re talking about, you know, one side, a willingness to win at all costs, be it. You know, Mitch McConnell doing away with blue slips, you know, refusing to have even a hearing or a vote for Merrick Garland, just a complete repudiation of all the norms that govern the Senate, even when you were there and it was tense and politicized, but nothing like what we’ve seen now, where every single norm of, you know, comedy and of just assuming good faith is gone. And the asymmetrical warfare question is always some version of, you know, we’re bringing a butter knife to a gunfight and is the answer for Democrats to just only go with constitutional hardball. Are we now just saying Democrats have to do the same, that we are going to have to as progressives be the thing that has broken everything in order to prevail? And so whether it’s the context of, you know, misinformation and vote suppression in the election context or, you know, court packing, as you and I have discussed. Did Democrats just going forward need to abandon any illusion of adherence to the sort of norms and conventions of good government and of comedy in order to even be competitive in the field anymore?

S7: Well, just as I called the question of how progressive people should be interpreting the Constitution, how do we articulate that is sort of the $64000 philosophical question you’ve raised. The fundamental moral and political question is at what point and in what way does one respond to brutal tactics that break all the norms and all the traditions? You know, when I was in the Senate, I got in trouble with progressives once in a while. It was one of the most progressive members of the Senate. But there are a couple of times where I voted for a Republican nominee because I felt that there has to be some kind of comedy in fairness. I voted for John Ashcroft for attorney general because I thought the president had a right to have somebody at the table advising him, even if he was ideologically anathema to many progressives. I also voted for Chief Justice Roberts for the court, even though I voted against Alito, because I thought, look, Bush is going to get this nominee, he’s going to get this choice. And I thought he might be institutionally more sensitive to the role of the Supreme Court than some of the other conservatives. And in fact, he’s proven to be so. So those were the norms I believed in. But you’re right, the McConnell Senate and the Supreme Court and others have sort of taken a view that they can just go forward and that the Democrats will never respond. So what do we do? I don’t think we give up our principles. I don’t think we say, look, all our concerns about unlimited money in politics and it should just be thrown out the window and we should use the same weapons as they do. But we have to think about how we respond to this. We also, I don’t think should be in the position of sort of completely disregarding the norms that have helped make the United States Senate confirmation process work. Having said that, something has to be done about the fact that the United States Supreme Court was stolen under President Obama by the United States Senate. In my view, the idea that somehow Merrick Garland wasn’t even considered when President Obama had earned the right to have that nomination considered and probably confirmed to me is something that has to be dealt with. So, in other words, one doesn’t have to go forward saying, look, we’re going to slash and burn tactics in the future. But we do have to say, and this is something I think all progressives would agree on, including many conservatives and moderates. There has to be some kind of recompense here. There has to be some kind of recognition that the court was stolen. There has to be something done to even the balance. I was one of the former senators that signed this letter the other day about what’s happened to the U.S. Senate. Somehow there has to be a bipartisan agreement in the Senate that is as binding as possible, which is difficult. But perhaps in the Senate rules, that will mean going forward that this kind of approach can’t be used anymore. But I want to emphasize, because progressive simply cannot stand back and let the conservatives do this in the future. There has to be some recompense for the things that were done that were inappropriate and wrong. And I hope the can help lead a conversation about how that might work. This is a very tricky thing to do. I had a great talk with those students at American Constitution Society at Chapman Law School, follow law school about this, and they had ideas. So I think it begins with a young, bright students across this country and the lawyers. But we. There is a way to solve this, I think. And of course, one of the things that will get the conservatives the. Tension is that if they don’t do well in the election, then they might be willing to listen on this a little bit more. But in any event, this has to be a serious conversation about how do you balance the need to create norms where people don’t use extreme tactics with each other. And yet the fact that there have been really terrible things, unfair things done to Progressive’s and to the rule of law, something has to be done to resolve that. And that’s the challenge.

S5: I feel like I’ve already asked you $120000 worth of hard knocks. I’m probably hitting my my campaign ceiling. But I want to ask one more. And I think this goes to, again, something you talked about in your interview with The New York Times when they announced that you were ahead of ACARS. And that is, you know, this week President Trump attacked two sitting justices. Nobody defended them. He attacked Amy Berman Jackson, a federal sitting federal judge.

S8: Nobody defended her. He attacked a juror. Nobody seems to have defended her. I guess. Judge Jackson, did you sort of opened by saying, you know, there are these attacks on the judiciary and the judiciary does not seem to be speaking out for itself. And I sort of I’m mindful of the fact that even in that article this week about the changing of the guard at the Ninth Circuit, there were veteran judges who sort of anonymously said, boy, the circuit is becoming unrecognizable. Some of this is conduct unbecoming. And they were immediately pilloried for complaining about the new Trump judges. I wonder what how you frame this issue of, you know, we have the the quote unquote, weakest branch, unable to protect itself, clearly unable to stand up for itself. I think ACARS and, you know, its its allies have to figure out a way to speak up on behalf of the judiciary, because the judiciary is is not speaking up for itself. And I think in a politicized era cannot speak up for itself. What does that look like, in your view?

S7: Well, ACARS is not only well-positioned to do this, but has started the process of identifying these moments that are entirely inappropriate. And the good news is this isn’t just something that people on the left are concerned about. Just about everybody was outraged that you had an attack on a sitting judge saying that that judge couldn’t make a fair decision because of his ethnic background, that you would have a president of the United States going after two of the justices interfering and saying that somehow it’s his role to decide whether they should be ruling in cases the attack on the Justice Department that was responded to not by partisans, not by liberals, but by over 2000 former Justice Department employees who basically made a career out of staying out of politics. And really led in some ways by the deputy attorney general under George Bush, the first. And so that creates an opportunity for American constitution society and fought for everyone to say something’s terribly wrong here. What’s going on here is, yes, the judiciary is being attacked and it finds itself in a tough position to protect itself. But every American should realize that they will not be able to protect themselves in court if the courts are biased and are subject to this kind of political attack. So I want to conclude that answer by saying, look, there is some reason to believe that there’s pushback. Chief Justice Roberts has stood up to the way in which the president has talked about judges in his annual report. He warned about politicization of the federal judiciary. And yes, many progressives, including myself, are not always happy with what the chief justice rules, but he is speaking up and has spoken up about the integrity of the federal judiciary and the inappropriateness of another branch trying to undermine it. So we as progressives should coalesce with conservatives of whom there are many and moderates who find this kind of conduct really offensive to our legal system and to our Constitution. And so it needs to be done frequently. It needs to be put in the context of the range of things that are being done. Words or if you just focus on one thing, the abuse of the pardon power or talking this way about justices, that’s not enough. The whole picture has to be painted. So people get the sense that, frankly, there’s something rotten in Denmark about what’s happening to our federal judiciary. It denies your right to pursue happiness if you don’t have a legal system that you can rely on.

S8: Russ, before I let you go, I have one last question which goes to I think what you just said, which is it’s it’s not just one thing. It’s, you know, politicization at the Justice Department. It’s the increasing appearance that there is a purge happening at the highest levels of the federal government. The sense that DOJ is going to be weaponized to reward Trump cronies and persecute. Anybody who is perceived as disloyal. All of this is happening around us, and I know that you think as hard as I do about what quote unquote, the rule of law means and how ephemeral it is. It’s something that I think we believe is made of steel and it’s in fact, made of cobwebs. It’s a bunch of intersecting norms and values. Can you tell listeners who are thinking? I think that this has been a slightly depressing conversation in terms of what is can you talk for one minute about what could be when people who care about what you just described as, you know, a neutral justice system that protects us all, including the weakest and the poorest? What can people be doing?

S7: Well, I’m glad you mentioned this. Basically, you use something similar to what I understand was discussed when Merrick Garland recently stepped down as chief judge of the D.C. Circuit. And one of the comments that was made is that it turns out that the rule of law is fragile. And I don’t think a lot of us understood how fragile it was until we saw the last few years. So that’s depressing and concerning. But it also creates an opportunity for these young lawyers and young law students. I often when I’m in the middle of one of my rifts in a law school class and have described one of these problems, I say, you know what, you have a lot to do. And I remind people that the old expression, may you live in interesting times is really a curse rather than a blessing. But, you know, their eyes get wide and they realize, oh, this is what I’m supposed to do. This is what my generation is going to do. And so there’s an element of excitement and realization that their lives, their professional lives as lawyers will have meaning that they will be able to be critical in restoring the rule of law and whatever avenue they take, whether it’s the Justice Department or whether it’s through their state governments or whether it be in the federal judiciary. There is something important for them to do in public service. So that’s sort of the good news of it. You got a ladder, in my view, eager, very bright lawyers all across the country, or are law students who want their professional life to have meaning. And restoring the rule of law and working for progressive change will be that meaning for them. And I suspect they’re going to do a better job than our generation has done in that regard. So that to me is the good news that will gradually become evident as they use their skills to change this very drastic situation.

S8: Senator Russ Feingold, former Democratic senator from Wisconsin and longtime member of the Senate Judiciary Committee, is the new president of the American Constitution Society. Thank you so much for being here. We look forward to having you at the helm of ACLU. Thanks so much. Dalia’s great to be on the show.

S3: Slate Plus members, this is the first inaugural is the first ever. We’re very excited about this.

S10: It’s the What Did We Miss segment where Mark Joseph Stern, who is all the things legal at Slate comes on, brings us up to date with happenings, decisions, dissent, upcoming cases, cert grants, all of it at the Supreme Court and at the federal courts. Mark Joseph Stern covers all of that for Slate and keeps me sane most days. And I’m very, very glad he’s gonna be joining us here on Amicus. To help our Slate Plus members stay on top of the teetering pile of legal news. So, Mark, hi. Welcome.

S11: Hi. So glad to be here. I thought you were going to say teetering pile of legal excrement.

S1: I didn’t I don’t think excrement teeters, my friend. I think.

S11: Oh.

S10: But I do like I like where you’re going with that work. So much court news this week. And I think in the kind of hurricane of all things and the Corona virus, we missed a lot.

S1: But I think maybe the biggest story you tell me involves religious liberty and the cert grant in a very much watched case out of Philadelphia. Do you want to talk about that?

S12: Oh, God. Well, no, I don’t want to. But I well, this is this is the Fulton case, Fulton versus Philadelphia. And this is a case where basically Philadelphia has these these private agencies screen and certify foster parents. Right. So they help, you know, they they help train them, teach them how to be good parents and certify them and then tell the city. All right. These folks are good to go. Right. It’s a nice thing to do. A city awards these contracts. They’re about 30 these agencies. And one of them, Catholic Social Services, refuses to do that job for same sex couples. They say we’re Catholic. We don’t approve of same sex marriage. We don’t even recognize these marriages. So we’re not going to work with same sex couples. And Philadelphia says, OK, well, you know, you’re you’re welcome to believe that. You’re welcome to express those views. You can keep running these houses for children who have not yet been placed with parents. But we’re not going to have you screen and certify parents anymore. We’re not going to renew that contract with you because you are reducing the overall pool of foster parents.

S11: Right. Like you are turning away otherwise qualified potential foster parents. And that is harmful to children. That that seems pretty reasonable to me. The lower courts said, yep, that’s fine. That’s no infringement on on religious liberty or free speech. But now the U.S. Supreme Court is going to review those decisions from the courts below. And that makes a lot of people very, very nervous because this seems like it could be the next big step that this court takes and that the conservative majority takes to legalize anti LGBTQ discrimination under the guise of religious liberty.

S10: Now, the other big news that, again, I think didn’t get quite as much attention as it might have because it struck us as silly. Was the president just attacking on Twitter? And then later in a press conference in India, you know, two sitting Supreme Court justices, Ruth Bader Ginsburg and Sonia Sotomayor are suggesting they are biased against him and should for all time be recused from any Trump related matter.

S11: It is silly. I think it’s pretty incredible that Trump came out and said that just days after axios reported that Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, is compiling lists of deep state disk loyalists in the federal government and giving them to Trump and asking him to purge them and replace them with Ginni Thomas, his friends. And Trump isn’t calling on Clarence Thomas to recuse himself. He’s only calling on Sotomayor and Ginsburg. And we should talk about why Sotomayor. Right, because she wrote this incredible dissent from this order allowing Trump’s wealth test for immigrants to take effect in Illinois. And she said, look to her conservative colleagues. She said, you guys are putting your thumb on the scale of the Trump administration over and over and over again. You treat one litigant better than all others. And that is the Trump administration. And that’s a huge problem. And it’s going to cause people to lose faith in the impartiality of this court. And apparently, Donald Trump thinks that that is a reason for her to recuse from every future Trump case forever.

S1: And worth saying, her critique was not of Donald Trump. In fact, she didn’t name him. She was talking about, you know, this shadow docket. Steve Vladeck has written about this. You know, the idea of cases sort of being fast tracked to the court without being fully litigated in the lower court. So the critique was not even a Trump critique.

S11: Right. It wasn’t directed at Trump himself. And that’s something that I think has gotten lost here. It was about how the court is handling these appeals from Trump’s Department of Justice, defending these. Policies that that trumps various lackies are setting up, and I think even, you know, within the realm of like sharply worded dissent, this really wasn’t that extreme. Some of the dissents in the death penalty cases last term were way worse. But this is probably the first time that a justice has come out and said not only that this is bad law, but that it’s creating an image problem for the Supreme Court. And obviously, Trump did not react well to that.

S10: And let’s just shift, if we can, to the Second Circuit and sanctuary cities, because that seems like a big deal.

S13: Yeah. I mean, the very first federal appeals court to rule that the Trump administration can withhold federal funds from jurisdictions that don’t basically enforce immigration law and help the federal government enforce immigration law, which is huge. And it creates this massive circuit split because three other courts ruled the other way. I think the Supreme Court has to take this case. And what’s really alarming about the Second Circuit’s decision and Ian Millhiser wrote a great piece about this in VOCs is that the court basically says that the federal government is free to deputize every single state and local police officer to help enforce federal immigration law anytime at once, which is very extreme and really kind of beyond even what the Trump administration was asking for here. And it really reads to me like, oh, well, there are just different rules for Donald Trump in his administration than there are for everybody else, which really kind of ties us back to what Sotomayor was saying in her dissent.

S1: And quick, quick, Marc, I know a bunch of decisions came down this week, but one of them is something we’ve followed on this show, Hernandez versus Mesa, the famous cross border shooting case.

S13: Surprisingly enough, 5-4, no big shock there, but I think still kind of a shock to the system in the sense that this Supreme Court is just so eager to limit and overturn these precedents. I mean, this this decision really casts doubt on the broader principle that federal courts can allow victims of federal law enforcement to sue for damages. Yes, it’s specifically about this cross-border shooting. And Alito, who wrote the opinion, kind of waves his hands and says national security, foreign relations, it’s all very complicated. But I think at the heart of the opinion, there is a lot of skepticism among the five conservatives that the federal courts can ever let victims like this, basically victims of immigration law enforcement officers sue. And in in these federal courts. And even Thomas and Schaus EJ wrote separately to say, we just want to overturn this entire line of precedents and effectively shield federal law enforcement officers from from damages anytime they violate the Constitution.

S1: Marc Stern covers the courts and the law and the Supreme Court and the federal courts and courts generally for Slate. Mark, thank you for the quickie update. It’s going to be a massive relief to have you here in the coming weeks and months.

S11: Happy to be that pressure valve. And I hope one day I have a little bit of good news to share here.

S10: Aymen, my brother, you soon by.

S14: And that is a wrap for this episode of Amicus. Thank you so much for listening. You can keep in touch with us always at Amicus at Slate.com. You can find us at Facebook.com, Slash Tamika’s podcast. And we really, really appreciate your feedback and your letters. Today’s show was produced by Sara jerningham. Gabriel Roth is editorial director of Slate Podcasts and June Thomas is senior managing producer of Sleep Tight Cast. And we’ll be back with another episode of Annika’s Into.