A Hair-Raising SCOTUS Curtain-Raiser

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Dahlia Lithwick: This ad free podcast is part of your Slate Plus membership.

Speaker 2: These nine unaccountable super legislators, the elite fancy lawyers who are this out of step with the public. That is a crisis. That is a problem irrespective of disagreement about substance.

Mark Joseph Stern: The fact that they can debate arcane cases in a way that’s intellectually interesting doesn’t mean that when a big abortion case comes, they aren’t all going to revert to their personal and political preferences.

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Dahlia Lithwick: Hi, and welcome to Amicus, a podcast about the courts and the law and the rule of law and most of all, the highest court in the land. I am Dahlia Lithwick, and I cover those things for Slate. I’m also the author of Lady Justice, which is my book about women and the law and the ways the law fails us, but also saves us. Lady Justice debuted this week on the New York Times bestseller list, which is thrilling, although do note I am way behind Jared Kushner on that list. Lady Justice is available in both print and audiobook formats. Stick around because I will be sharing information on how to access a discount deal on the book at the next break.

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Dahlia Lithwick: As the sun rises on a new term at the Supreme Court, a historic investiture. Associate Supreme Court Justice Katie Brown Jackson was joined at the high court by President Biden and Vice President Kamala Harris this past Friday for her final ceremonial swearing in. During the ceremony, Jackson sat in a chair that was once used by Chief Justice John Marshall in the 19th century, a chair that’s been used for Supreme Court investiture since 1972. Chief Justice Marshall was a slaveholder. Justice Jackson’s ancestors on both sides were slaves. So as Justice Jackson takes her seat, we here on the show are taking hours, strapping ourselves in for the jurisprudential rollercoaster and preparing ourselves for another wild term at the highest court in the land.

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Dahlia Lithwick: Today’s show is, in fact, a twofer. The Supreme Court is about to hear blockbuster cases on environmental protections, voting rights, the Indian Child Welfare Act, cases about affirmative action and the as yet to be scheduled arguments about the independent state legislature theory. That’s the case that may just make last term’s juggernaut feel like a bubble bath. We’re going to tee up these cases with my wing person extraordinaire, Slate’s very own Mark Joseph Stern, because quite seriously, there is no one better. But we’re also going to take a beat before the new term starts on Monday with Jay Willis, who is the editor in chief of Balls and Strikes, which publishes original commentary and reporting about courts, the judges who preside over them and the legal system they uphold.

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Dahlia Lithwick: Jay wrote to me in August with the subject line where Supreme Court journalism goes next, which is something I’ve been thinking about a lot and writing about quite a bit this past year. And actually, I’m not quite sure that I figured out the answer. And I can’t shake the feeling that we, the collective covers of the court, need to do more or better or something different in our coverage of what happens at one four Street. We’ve been kind of hair on fire screaming here on the show that all is not normal. Sounding alarms about what’s happening and how it’s happening.

Dahlia Lithwick: And yet still this chorus of what the what. As the majority opinions tumbled out of the court in June perhaps indicates that not everybody was dialed up to five alarm level. With us now is increasing numbers of the public cottoned on to the tectonic shifts that have happened in a very short time at the High Court and lose their faith and confidence in the court. We want to try to figure out how can the media do a better job of conveying and interpreting that story for the public.

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Dahlia Lithwick: So Mark and Jay, welcome to Amicus.

Mark Joseph Stern: Thank you so much. Happy to be here, as always.

Speaker 2: Yeah, thank you for having me, Dahlia. And it’s a pleasure to be with you, too, Mark. I also just want to start with a disclaimer. We are recording this at six in the morning West Coast time. It’s sort of the classic East Coast bias at work. I’m doing.

Mark Joseph Stern: This.

Speaker 2: I’m doing this for you, the listener.

Mark Joseph Stern: West Coast. West Coast. Suck it, Jay.

Dahlia Lithwick: Here’s where someone has to just pull a full on Brier and flush their toilet. And then just everybody can wonder who did that. Okay, so first, before we start with the absolute predatory disclaimer that it’s really early for Jay and probably even too early for Marc and I. Let’s talk just briefly, if we could, for 5 minutes about some of the big cases that are coming up in front of the court just in the next few weeks. Do we want to start, Marc, with second versus EPA?

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Mark Joseph Stern: I would love to talk about the circuits who have been framed by their conservative attorneys as this sweet, lovely family who just want to exercise their own rights over their property and are being obstructed by these nameless, faceless government bureaucrats who are bringing the overbearing power of the feds onto them and ruining their lives.

Mark Joseph Stern: That story is a nice fairy tale. It is not what is in fact happening. What’s really happening is that the sockets operate a commercial construction and excavation business and they dumped about 1700 cubic yards of gravel and sand into wetlands to prepare for construction.

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Mark Joseph Stern: The Federal government was not pleased because we have this law called the Clean Water Act that generally protects waters that are considered to be the waters of the United States from this kind of pollution, and particularly from dumping and the sockets respond, Look, this was basically just a marsh. This was just a bog. Yes. It was adjacent to these navigable waters, which is the phrase that the Clean Water Act uses. But it wasn’t part of the navigable waters because there was a road constructed in between those waters and the wetlands. And so because there’s this road that you can drive down and look at the wetlands on one side and the navigable waters on the other. This is totally legal. We can just destroy these wetlands. And the federal government has no say.

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Mark Joseph Stern: I think that is an absolutely abhorrent position. I think it’s extremely obvious that when the Clean Water Act uses the phrase waters of the United States, it is not just limited to waters that you could captain a steamboat through. But also waters that play a critical role in maintaining those other waters that you could, in theory, captain a steam boat through.

Mark Joseph Stern: The Supreme Court has said exactly that many times, most recently in a decision called Response. Justice Anthony Kennedy wrote the controlling opinion, saying, of course, there are these waters like wetlands that play a crucial role in maintaining other waters. When there’s a flood, they can absorb some of the spillover, they can absorb excessive rainfall. They are part of this ecosystem. They have a close nexus to this ecosystem. And when they do, the Clean Water Act applies.

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Mark Joseph Stern: But Justice Kennedy is gone. Conservatives hated his opinion in that case. And Sackett This new case is essentially the vehicle that the Supreme Court is going to use to artificially narrow the scope of the Clean Water Act, to exclude just a mind boggling number of bogs, marshes, wetlands and just kind of savor the Clean Water Act to the point that it is only protecting the kind of waters where you can imagine a giant cruise ship just steaming through, polluting everything in its site. And we’re probably going to lose a huge amount of biodiversity because five or six justices on the Supreme Court hate the environment.

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Dahlia Lithwick: Jay, I’m going to ask you to take a whack at voting rights and to talk a little bit about Meryl, but I want to challenge you to do it with as much dripping contempt in your voice as you just heard from Mark Joseph Stern.

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Speaker 2: So there’s two big voting rights cases on the docket, right? There’s Meryl Milligan, which is about racial gerrymandering in Alabama, not to be confused with Moore v Harper, which is about partisan gerrymandering in North Carolina. And just like at the top, I got to say, Meryl Milligan, Moore, v Harper, like that is too many ends. I don’t know about you guys, but like my heuristics, the way I remember cases like, Oh, the Democracy reporting one, that’s the Emmys. And this is really messing up my ability to do that. So whoever’s in charge with the captions, I just got to ask you to get some other parties in there and make it easy on me personally. My needs are essential here, but more.

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Speaker 2: Let’s see. So that’s the independent state legislature doctrine case. The question in that is whether state courts are allowed to resolve gerrymandering disputes under state law. And as a theme, you’re going to hear a lot with cases this term. But like under existing court, precedent is a pretty easy case. The court rejected the independent state legislature theory in 2015 in a case out of Arizona, and then more recently in 2019 in RUSCIO. That case held that federal courts don’t have the authority to stop partisan gerrymandering. But in his opinion, John Roberts was very careful to say that state law could still address partisan gerrymandering, state courts, state legislation, which, just as an aside, this was always sort of like a hollow promise, right? Oh, so the state legislatures doing the gerrymandering have the power to pass laws stopping them from gerrymandering.

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Speaker 2: Like, Thank you so much for this generous offer, sir. We really appreciate that. But it was supposed to be the check on partisan gerrymandering, sort of what was carved out of Russo and a resurgent independent state legislature doctrine, which basically says that state courts and the executive branch. So governors don’t have the right to interfere with the administration of elections that could even knock out that narrow carve out.

Speaker 2: And then again, there’s the second case, Merrill V Milligan. Again, not to be confused with the other democracy case on the docket, the court has been hacking away at the Voting Rights Act basically since it was passed. And this is the latest swing. So again, this case is about racial gerrymandering in Alabama. The petitioners are asking the court to overrule itself in its previous case to throw out Voting Rights Act precedent and basically rewrite the statutes text to make it so that maps, under Alabama’s preferred reading, they’re illegal if they can be explained only by racial discrimination, which, if adopted, is a standard that is so useless that it might as well not exist yet. Like racist states are always going to have explanations for what they did. That is something other than racism.

Speaker 2: And just give you a little preview. The court’s conservatives are going to have an extremely low bar for accepting those explanations. And the last thing I’ll say about this is this case isn’t like formally an independent state legislature doctrine case, but it’s the same through line, right? It’s an empowered, reactionary court that is empowering the other government entities that are controlled by conservative reactionaries and just sort of crossing the remaining checks and balances off the list.

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Dahlia Lithwick: Yeah, I think that’s right. And quite dispiriting.

Dahlia Lithwick: Mark, to Anna, just quickly, talk about affirmative. Action in higher education. I think this is a kind of a funny pro forma case because we know what’s going to happen.

Mark Joseph Stern: Oh, great. Lucky me. Yeah, I love this one. So I think we all remember that affirmative action was saved in 2016 by Justice Kennedy in a closely divided vote, and that Kennedy is still gone. He was gone last time I talked about Sackett. Now he’s gone as I talk about affirmative action. Justice Kennedy has left the building, and that means his entire legacy is being tossed out very quickly. And what’s going on here is that Ed Blum has decided to destroy all race conscious admissions in higher education. He previously launched a number of fights against the Voting Rights Act, which Jay was just discussing. He was an architect of a number of successful legal challenges trying to destroy the Voting Rights Act. Now he’s back on affirmative action, saying young black college students, I don’t think you deserve to be where you are.

Mark Joseph Stern: So he has manufactured cases in North Carolina and Massachusetts, a Harvard case and a USC case that essentially just gave the Supreme Court a vehicle to say once and for all that race conscious admissions in any form whatsoever violate the equal protection clause of the 14th Amendment, even though the very same people who wrote the Equal Protection Clause of the 14th Amendment created the first affirmative action programs for black people in the United States and passed laws that were designed to use race to ensure equal opportunity for all.

Mark Joseph Stern: This originalist textualist Supreme Court is going to say, Doesn’t matter. We are striking this down and probably in my guess say that what they’re really doing is valiantly defending the rights of Asian Americans at Bloom’s, claiming this time around not that affirmative action most harms white people, but that it most harms Asian-Americans. And I think that the Supreme Court will probably agree and the conservative majority will say that what it’s really doing is abolishing and invidious form of racial discrimination rather than what it’s actually doing, which is driving out underrepresented racial minorities from our institutions of higher learning.

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Dahlia Lithwick: JAY Do you have a little footnote to Mark’s coda about Ed Bloom?

Speaker 2: Yeah, I just got a shout out. Ed, my guy whose hobby is basically challenging laws that make National Review bloggers upset. But Ed Blum is the only party I think, that you could put in a case who can make Harvard University look sympathetic like any in any case that shows up in a courtroom with Harvard on one side of a V, I’m like, poof, yes, I’m for the other side. But then I look across and it’s Ed Bloom, and I’m like, Oh, what is it? Go Crimson. I guess I do want to say also that with the looming end of affirmative action, there’s a lot of cases the court takes up where we can hazard some guesses about what’s going to happen, but we don’t really know. And this is one where there’s actually real data on this, right? Because some states have abolished affirmative action in those states by state law. We know what’s going to happen here.

Speaker 2: So after California voters passed Prop 209 in the 1990s, the enrollment of underrepresented minority students plummeted. It took the biggest drop at the highest ranked schools at Berkeley and UCLA. It was about 60%. But this isn’t just about admissions either. Ending affirmative action deters applications from underrepresented minority students. It deter them from even trying, and it creates this perception, which becomes the reality of a two tiered system of education, where sort of the shiniest brands are largely closed to people of color.

Speaker 2: There’s data that shows that Prop two or nine shifted student bodies towards students from higher income families because the students from lower income families less likely to apply and matriculate. And there’s data that shows that it has an effect on earnings. Latina students who enrolled in lower ranked schools after Prop 209 earned lower wages than pre Prop 209 Latina students who went to higher ranked schools. So this isn’t just about admissions games. Prop 209 stunted like a generation of students of color in California. And the court is paving the way for that to happen in many other states. Now.

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Mark Joseph Stern: Conservatives will sometimes say that in place of affirmative action, states and other jurisdictions should create top 10% plans like what Texas has established, where the top 10% of students from any high school in the state are guaranteed admission at a particular university or university system within the state. And so high school students who go to horribly segregated, underfunded schools, who are mostly racial minorities, they have a leg up because if they are toward the top of their class, they get to enroll at a pretty decent school.

Mark Joseph Stern: Two things I want to say about that. First of all, it’s not actually race blind at all. Like, those plans are so clearly also race conscious. The whole point of those plans is to bring in more racial minorities to overwhelmingly white schools. And so this fairy tale that it’s like this perfectly race neutral alternative to what schools like Harvard are doing. I just think it’s total nonsense.

Mark Joseph Stern: But the other thing I want to say is that I think that the conservative justices will wind up striking down top 10% plans as well. And the reason why is because there was a case out of Virginia on the shadow docket this term and a Virginia jurisdiction switched its system for enrolling in this really great magnet school to a sort of top 10% plan where students from a number of schools in the surrounding area got guaranteed admission or near guaranteed admission if they were in the top of their class. And a bunch of parents challenged that plan as racist against Asian-American students. They lost in the lower courts. They lost to the Supreme Court. But three justices, Alito, Gorsuch and Thomas, would have weighed in and blocked the plan. The top 10% plan in Virginia.

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Mark Joseph Stern: So I think it’s pretty clear that what we’re seeing is the first of a12 punch. The first punch will be okay. Explicit race conscious admissions are gone. You can’t even consider an applicant’s race when deciding whether to let them in. And then the second punch will be also top 10%. Style plans are gone, too, because those are just a way around race conscious admissions that are really designed to discriminate against Asian-Americans and other people on the basis of their race. So there’s no magical solution off in the distance.

Mark Joseph Stern: And this kind of reminds me of what Jay was talking about earlier and Rubio versus Common Cause, which was that 2019 decision upholding partisan gerrymandering and saying that federal courts couldn’t decide these questions. And in that opinion, the conservatives said, but look, we’ve got these state courts that can just interpret their state constitutions to limit partisan gerrymandering. So we don’t need to be here. The federal courts do need to be here because state courts could just enforce students the Constitution. Now, here we are just a couple of years later, and we’ve got at least four, possibly five or six justices ready to say that, in fact, state courts cannot enforce their state constitutions to limit partisan gerrymandering. So this is just the classic one two punch that John Roberts is so good at that the conservatives have mastered that. And this folds into a discussion. We’re about to have really tricks the press sometimes into underplaying the impact of a decision into believing that there really are these magical alternatives that will fix everything. And then everybody forgets. And then a few years later, the Supreme Court comes along and abolishes those alternatives as well.

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Dahlia Lithwick: Well, you two are just a barrel of laughs this morning.

Dahlia Lithwick: J Do you want to before we turn to the press versus the press section of the show, do you want to just give us a quick rundown on the Indian Child Welfare Act? Because I think this is a case that is absolutely, essentially important, that is not getting nearly enough play this fall.

Speaker 2: Sure. So that case is Brackeen v Holland. It is a challenge to the Indian Child Welfare Act, a law that Congress passed in the 1970s to address a sort of a decades long crisis, really, of native children being taken from their families and placed for adoption with white families or in many cases, taken away to what were known as Indian schools, I believe, which essentially tried to westernize and assimilate them. This is decades before Trump made family separation common parlance, but this was happening right here in the good ol USA.

Speaker 2: And this challenge to the Indian Child Welfare Act, or the EQUA, as it’s called, is part of this long line of cases where conservatives are weaponizing statutes that take race into account statutes that are designed to help correct for historical discrimination against and mistreatment of racial minorities.

Speaker 2: So we’ve already talked about friend of the program, John Roberts, in 2013 gutting the Voting Rights Act in Shelby County on the grounds that racism in voting in the South was over, which is sort of been undermined by the case that keep appearing on his docket every year ever since. But I digress at the same idea here, the petitioner’s theory is that the equal discriminates against them. They’re a white couple by favoring Native families during the adoption process. And there’s a lot we could talk about with this case.

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Speaker 2: But if I had to give one major point, it’s the idea that the equal protections are no longer necessary is just wrong. Like native children are still being taken from their families more often than non-Native children. And in some states, the rate of family separation is now higher than it was before the act was passage. The fact that equa is the law right now does not mean that it is working and does not mean that it’s okay to get rid of it. But you’ve got conservatives sort of breezily declaring the problem is solved. Again, chipping away not just at the infrastructure of statutes designed to protect marginalized communities, but at the notion that these statutes are legal or even necessary in the first place.

Dahlia Lithwick: And it’s so interesting. I’m listening to Jay talking, and all I’m thinking about is our podcast with Dorothy Roberts. Right. Which is the, you know, unbelievable disparity in investigation and removal of black children and the sort of criminalization of parenting and poverty for people of color. And the absolute I think you’re exactly right, Jay. Knock on ripple effects that still pervade the way we think about families for people of color and minorities. So it’s hard not to see this case in direct line to everything Dorothy Roberts talked about after Jobs, but also in a direct line to Amy Coney Barrett’s question at the Dobbs oral argument about just putting kids up for adoption as though that solves all problems. Marc, what were you going to say?

Mark Joseph Stern: I just wanted to lie down next to Jay on this funeral pyre and throw in one more terrifying aspect of the Berkin case, which is that the plaintiffs here are also challenging Congress’s broader power to regulate Indian tribes, tribal affairs. We all know the Commerce Clause about Congress regulating interstate commerce. And there’s another commerce clause about Indian tribes in Indian affairs. And this case was really designed to, in part, destroy the federal government’s ability to regulate and to protect Indian tribes.

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Mark Joseph Stern: And there is a reason why there are so many high powered conservative corporate lawyers like Paul Clement working on this case. And it’s not because their heart bleeds for white couples who want to adopt Indian children. It’s because they think that if this case goes the way they hope, that corporations will have much greater access to the many natural resources that are located on tribal lands, that states will have a much freer hand in regulating and discriminating against and encroaching upon tribal lands, that all of these roadblocks to various conservative goals will fall away. And Rebecca Nagle did a wonderful podcast about this called This Land Season two. I strongly recommend everyone listen. But as horrifying as the racial element of this is that the broader issue is also very chilling and I think a kind of backdoor thing. Not many people can see if you just look at the surface of the case, but that is very much lurking in there.

Dahlia Lithwick: Okay. So may we pivot now to this question that I started with, which is all three of us have been thinking and writing for quite some time about whether and how the press corps that covers the court is disavowing the enormity of what we’ve just described. And I think we could all agree that the previews we just offered amongst the three of us would not be seen as appropriate. Both side journalism, I think.

Dahlia Lithwick: I want to start by just asking, Jay, if you don’t mind. You know, you wrote a piece just about this time last year, right before the 2021 term open, where you talked about all the ways in which Supreme Court reporting is straight up broken and you trashed, I think with great abandon the sort of three, three, three narrative about how there were three moderate centrists, Roberts and Barrett and Kavanaugh who were going to put the brakes on everything and the kind of hagiography around John Roberts as this magisterial driver of the court who was bringing modesty and humility to the fractious groups.

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Dahlia Lithwick: And I think you made the point in that article it was a pretty brutal critique of how we cover the court. And then you kind of said we’re in on the gaslighting. We in the press corps, we have a vested interest in saying that everything is fine, normal, cool, cool, cool at the court. Here’s a paragraph from that piece. I’m just going to read it and we’ll put a link to the whole piece in the show notes.

Dahlia Lithwick: But it says, quote, It is not an opinion, for example, that the six justices who decided Brnovich were appointed by Republican presidents or that the result helps their political party of choice. It is not an opinion that since the court decided Roe in 1973, a commitment to anti-choice politics has been table stakes for Republican judicial hopeful. Or that Roe’s shadow docket disintegration comes on the heels of President Trump’s explicit promises to nominate justices who would vote to destroy the right to abortion care. And it is not an opinion that the rapid fire confirmations of three dyed in the wool ideologues in four years has cemented a right wing Supreme Court majority for at least a generation to come, end quote. And that proves pretty prescient. All those things proved to be true last term, but I wonder what it is that you say to people who tell you that when you write that way or think that way or talk the way you’re talking, what you’re really just doing is grousing because you don’t like the outcomes.

Speaker 2: I guess the way I’d answer that question is that I mean, sure, I don’t particularly care for the things that the Supreme Court is doing lately, but it’s also the case that the public, the people whose lives the Supreme Court’s decisions control, they don’t much care for the things the Supreme Court is doing lately either. The court’s decisions in a brew in the gun rights case and Dobbs ending the right to abortion care. Those fly in the face of public opinion of what Americans want and what how they perceive the law and the Constitution to govern their lives.

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Speaker 2: It’s not just me, you know, a small time blogger about the justices who doesn’t care for this. It’s a much broader, a diverse cross-section of the country. And I think when you have these nine unaccountable super legislators, the elite fancy lawyers who are this out of step with the public, that is a crisis, that is a problem irrespective of like disagreement about substance.

Speaker 2: And one thing I would suggest is to think about an analog to media coverage of the Trump administration. If you think back to the halcyon days of 2017. Like, I think the media really struggled at first to cover the Trump presidency, right? We all remember the era of today is the day that Trump became president. Shout out Van Jones. The Trump strikes, conciliatory tone era, that sort of thing. But eventually, they caught up to the threat to democracy that Trump posed, to the point where, like when he literally fomented a violent insurrection against the government, the media was willing to portray it as such and call it that.

Speaker 2: You can argue that’s a low bar, and I agree. At the same time, I think if something like January six happens in 2017, I don’t know if it gets the same treatment from the press corps. And I’d love to see journalists take sort of a similar trajectory with the Supreme Court. Like if you went into journalism and you, like, remotely give a shit about representative democracy and giving people, like, useful, honest information about what their government is doing.

Speaker 2: My view is that at this point you should be as skeptical of and rigorous about everything the Supreme Court does as you would be about anything that comes out of Donald Trump’s mouth. Like this conservative supermajority is in many ways more powerful than Trump, right? Like he got voted out of office. They can’t be. This is the most important locus of right wing power in this country that is going to be controlling again the lives of hundreds of millions of people for a generation, maybe more than one generation, depending on how a few elections break and whether Democrats find a backbone.

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Speaker 2: I’m not optimistic, but as bad as this last term was, this is going to get worse before it gets better. And I just don’t think it’s too much to ask journalists to cover this as a really existential crisis for democracy instead of just doing, you know, nine fancy lawyers who are just up in their chambers doing law and not politics. That’s been inexcusable, in my view, for a couple of years. But like definitely at this point, no more excuses.

Dahlia Lithwick: Mark, it’s interesting because I’m remembering that Steve Vladeck and I partly inspired by Jay’s piece last year, did our curtain raiser about the term similarly critiquing the Supreme Court press corps for the ways it frames cases. What it decides is a big case. You know, the swearing cheerleader comes to mind. And I know that the critique pissed off some members of the permanent press corps. But I’m really curious what you think about the ways in which those of us who cover the court really feel a responsibility to be junior Justice Breyer’s like to hold up the mythology around the court and to be the guardians of the idea of nine perfect brains in VATS communing with the framers. And so I have huge respect for that.

Dahlia Lithwick: As you know, I think that the press corps does inherit the problem that the justices feel, which is not wanting to report it as though it’s just blood sport. But I wonder what you make of the fact that we are ending up doing kind of what Justice Alito and Justice Barrett are doing, which is blaming the press for the actions of the court.

Mark Joseph Stern: But blaming the press for the right reasons rather than the wrong reasons. I think there’s something intoxicating about covering the court on a permanent basis, having that hard pass, as they call it, being able to breathe in, having a cubicle in the press office, working yourself in that gorgeous marble palace and going up to oral arguments, sitting in the chamber for hours on end, listening to these elites banter about these arcane and intellectual topics.

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Mark Joseph Stern: I think that draws in a lot of reporters. It draws them into this world where nobody questions each other’s motives. Where everybody agrees we’re just doing law, where there is a sense of bonhomie and friendship among everybody. Even if there’s some strong disagreement on the intellectual side, emotionally, everybody’s like, Hey, we love each other. And I certainly felt it when I started going in to cover the Supreme Court in person. It’s so easy to fall for that charade, but it really is a charade. The fact that they have a beautiful marble palace doesn’t mean that they aren’t hacks. The fact that they can debate arcane cases in a way that’s intellectually interesting doesn’t mean that when a big abortion case comes, they aren’t all going to revert to their personal and political preferences. And that’s something that’s easy to miss if you cover the court a lot.

Mark Joseph Stern: And again, if you cover it day to day, you’re seeing these very weird disputes that involve some super esoteric area of the law. And you’re seeing the justices sometimes earnestly grapple with how to answer it. They want to find the right answer in those cases because in part, they don’t want to have to deal with these cases for the rest of their lives. They want to set down a rule. They want to explain what the law is. And when you see those, you think, okay, maybe these guys can do it. Maybe they really are feeling their way toward something like legitimacy. But then any major political case drops on their docket and everything changes. And in the high profile cases, it reverts almost always to the party lines, to the exercise of raw power, to the conservative majority just pushing through into a law free zone and doing whatever the hell it wants.

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Mark Joseph Stern: And I think that one of the chief difficulties of covering the court, especially if you’re a permanent press member, is balancing those things and acknowledging that sometimes the court really is doing law while admitting that often it isn’t, and explaining to readers where that line is and why it’s possible for Amy Coney Barrett to be genuinely interested in some subsection of the Armed Career Criminal Act and really want to find the right answer. But then in an abortion case, be like, Well, you can just dump your kids at the fire station, so who cares? And that is a dichotomy that’s difficult to grasp if you are not enmeshed in this world. But I think we do have a responsibility to get it across to readers and to explain that just because sometimes the justices can show their good sides doesn’t mean that they aren’t ultimately still super legislators in robes doing what the Republican Party wants them to do.

Dahlia Lithwick: I want to note two things in response to that. One, I just think you made such an important point, mark, which is press coverage of the justices, really, I think to a ridiculous level conflates, We’re all friends. We don’t throw our salads on one another’s heads at lunch with the institution is functioning. And, you know, Justice Breyer is a big purveyor of that story. Right. Just last week, he said, you know, I’ve no problem with what Ginni Thomas was doing because, you know, a women need to be allowed to express their political views. And, you know, I like them personally and most of us personally like the people that we sit in the office with. It is not a proxy for a functioning institution or an institution in. Which there aren’t material differences of opinions. And I’m really glad you made that point.

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Dahlia Lithwick: The other thing that I just want to throw out to the both of you is that I have long said that the way we make peace with the fact that the court is a wholly oracular judicial institution, except for when it’s a bunch of political hacks. And that both those stories are true is that we have a Supreme Court press corps that covers the first right, the oracular justices, and we have a political press corps that covers the episodes in which they are behaving politically.

Dahlia Lithwick: So when you go to cover a confirmation hearing, I’ve covered a lot more often than not, the people in the room are political reporters. They’re not the Supreme Court reporters, even though this is a Supreme Court hearing. Years ago, I remember when Ginni Thomas called Anita Hill and left a slightly deranged message on her voicemail. The Supreme Court reporters didn’t want to talk about that in the press, because that is not their story. It’s a political story. And I think what you are describing, Mark, is a press corps that is really colludes with and wedded to the sort of I am basically Akhil Amar doing constitutional law story because A, it shores up the institution and the stories that the institution wants to tell about itself. But B, there is a ready and willing political press corps that is delighted to tell the January six Ginni Thomas story. Agree or disagree, E.J.?

Speaker 2: When I think about the merger between political and legal journalism, one thing I’ve been thinking about and I write about this in my term preview on balls and strikes, balls and strikes dot org. Great website. Check it out. I argue that in light of this, just like a transparently partisan court, that reporters should drop this convention of referring to justices as liberals and conservatives, or if they’re feeling really spicy, right, Democratic appointed or Republican appointed. I would like to see more journalists just called judges and justices, Democrats and Republicans. The appointing Presidents Party, as Mark was referencing earlier, in these highly politically salient cases, it’s the most reliable indicator of how a justice is going to vote.

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Speaker 2: Now, I want to emphasize that journalists should take my recommendation because it’s good and I’m right. But you don’t need to agree with me all the way to be able to approach the job of covering the court differently. So like two things that I’ve been thinking about recently that I see in Supreme Court coverage all the time is reporters considering their sourcing.

Speaker 2: I would love to see a shift away from these name brand voices who get quoted in these articles whose credentials are like fancy tenured law school professorship and Supreme Court clerkship. Like when the worst thing that’s going to happen to a law professor who you’re asking for comment as a result of a Supreme Court decision is that they have to reshuffle their syllabus a little. I think you’re doing viewers, readers, listeners a disservice by asking them about the stakes instead of going to people who are more directly impacted. I guess a shorter way of getting at this point is Bloomberg. Please take Noah Feldman’s column away. I’m begging you on this point.

Mark Joseph Stern: And give it to Jay.

Speaker 2: Give it to you legally. Yes, give it to me. And then sort of by the same token, TV producers, I promise there are people other than Neal Katyal, who you can call to do a five minute talking head on a Supreme Court decision. That man is right now defending Johnson and Johnson for liability from allegedly carcinogenic baby powder.

Speaker 2: Right. Let that man work. But you see this all the time. Lawyers who argue before the justices regularly getting quoted in news articles about how well they think the justices are doing their jobs, how good of a job they’re doing at setting aside politics and how nothing needs to change. This is roughly analogous to asking my dog to write a Yelp review of the peanut butter jar. You’re never going to get honest criticism from a law professor or a law firm partner whose livelihood depends in part on fostering healthy relationships with the Supreme Court. So again, like I understand that not all journalists have my perspective, but there are little things that you can do to shift your coverage more towards towards capturing the full impact of what the court is doing. It just involves doing a little more work.

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Dahlia Lithwick: And so many of these questions, I think, have been raised, you know, in the last week or two around Nina Totenberg’s book. And how is it possible to be friends with the justice and also cover them and to speak truth to power and hold power to account? If you’re at the dinner parties, I mean, I think a lot of these questions, by the way, this is endemic, right? I’m sure that this happens in other beats, too. But I think it goes to this issue we always have around confirmation hearings of taking seriously the testimony of people who have a dog in the fight because they’re going to be arguing before the court.

Dahlia Lithwick: I guess, Mark, it leads me a little bit to legitimacy gate, which is the most interesting story I can’t stop obsessing on. And we can look at the new Gallup numbers. They’re terrible. The court seems to now be just taking brickbats to one another. Justice Alito went after Justice Kagan this week and blamed it’s like Mean girls, Mark. It’s like they’re not brave enough to say it.

Dahlia Lithwick: And so then they’ll go to a reporter and be like, When Kagan says that, Roberts says that the legitimacy thing in the press, I think the Kagan has crossed a line. Someone tell her and it’s like, really is this seventh grade? If you want to talk to one another, talk to one another. You have like lots of plushy rooms with big couches in which to do it. But please don’t take out your anger about the court’s plummeting polling on A, the press and B one another. It’s so juvenile. I’m noticing that Ian Millhiser has been delightedly tweeting that Good. This is the discourse I have long awaited. I want them to just hang out all the dirty laundry and let everyone smell it. I don’t love this. I think this is like a juvenile and be dangerous for the rule of law and the future of constitutional democracy.

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Mark Joseph Stern: So not to be too crude, but it does remind me of something you alluded to earlier, Dahlia, which is the toilet flush during oral arguments, which just so graphically punctured the mythology and mystique of the court with this all too human noise that reminds us we are all just Homo sapiens walking around dealing with our bodily functions. I mean, this is a little more elevated, obviously, but it’s a similar principle that the justices are sparring in public, shadowboxing through the press in a way that, as our friend Ian Millhiser pointed out, very clearly damages the court’s prestige. It is embarrassing. It’s the kind of thing that politicians do on Capitol Hill, but not typically the kind of things we expect from Supreme Court justices.

Mark Joseph Stern: For those who are not read in on this whole drama, essentially what happened was that the chief justice gave the speech saying the court’s legitimacy is very important and regard it preciously. And he actually said you wouldn’t want the political branches saying what the law is, which I found to be a little bit disturbing. Who who’s you? Yeah.

Mark Joseph Stern: And then Justice Kagan went on a bit of a publicity blitz and in a number of public remarks in a compressed timeline, said basically, I am worried about the Supreme Court’s legitimacy. And when we fall too far out of step with public opinion, we damage our legitimacy. We are at risk of losing our legitimacy. And then Justice Alito punched back with a comment to our friend Jess Bravin at the Wall Street Journal. He didn’t use Kagan’s name, but in context, it was very clear that Alito was talking about Kagan. And he said that by saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line. And that is exactly what you would expect of middle schoolers in some kind of feud, not what you would expect from justices.

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Mark Joseph Stern: But Alito is charting a new path forward. He is hobnobbing with parties, appearing or writing before him at fancy tuxedo parties in Rome. He is going out there and giving these outrageously partisan speeches, slamming Democratic politicians. And now he is just kind of sub tweeting or just outright condemning Justice Kagan for saying something that we have all been saying for a long time. My take is a hit dog will holler. And there’s a reason why legitimacy is the word.

Dahlia Lithwick: Florida, a view that looks like sometimes your Florida man comes leaking out. That was a hit dog or holler you got times.

Mark Joseph Stern: The Florida man holds that homespun wisdom best And it reminds me and I almost hate to bring him into this conversation, but Josh Blackman, a conservative legal commentator, wrote this whole article that was titled The Way to Stop Worrying about Judicial legitimacy is to stop worrying about judicial legitimacy. And he said, My advice to the justices, whenever anyone asks about the court’s legitimacy, the answer should be next question or if they are feeling more loquacious. Our job is to decide cases based on law without fear or favor of public perception.

Mark Joseph Stern: I think Josh, like Alito and many others, protest too much. What they. Surely understand is that unlike other institutions, say, Congress, the executive branch, the Supreme Court cannot enforce its own decisions. It has a tiny police force with a one block jurisdiction. It relies on nothing less or more than magic to transmogrified its words into the law. It has no real mechanism by which to force the political branches in the federal or state governments to adhere to its decisions.

Mark Joseph Stern: And so legitimacy is not just some airy concept for us to be standing around and debating over cocktails. Legitimacy is the key to this whole scam, you might call it, whereby the Supreme Court just seizes more and more power from the other branches and decides that it gets to determine the answer to every major question and no one gets to seriously criticize it or its decisions. If legitimacy goes away, that power goes away. And that’s why this is such an important debate and not just a middle school feud. And that’s why conservative commentators are telling the justices don’t even talk about legitimacy, because I think they must know on some level that this is a real weak spot and a real danger to the current court. Truly, I think the only thing that could potentially bring it down is if it just loses all of its legitimacy and we decide collectively we are not going to adhere to its decisions.

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Dahlia Lithwick: And I would add one other note that I think certainly you and I have been saying for some time, Mark, I think Jay agrees there are two ways to achieve public legitimacy. One is to demand a press corps that just slavishly reports on you as the nine most brilliant, perfect, neutral arbiters of truth ever born. That seems to be the preferred method.

Dahlia Lithwick: There’s the second method, which is control yourselves. Don’t fly to Rome and spike the football after dubs. If your wife is involved in the January six insurrection, maybe you want to recuse yourself. In other words, this is just a classic abuse. Her claim, which is I can’t stop myself from behaving badly. So you have to stop reporting on it. And it’s just kind of maddening because, listen, I understand the paradox here where we are sitting here saying they have to stop blaming the press and they have to stop blaming the public. And yet we are sitting here faulting the press for how they inform the public. And I recognize the tension there. But I want to be super clear that if for one year they just didn’t behave like this, it would do immense, like I would say too much good for their public rankings.

Dahlia Lithwick: You know, all you need to do is not decide things on the shadow docket without explaining. This is not difficult. And yet the unwillingness to make those kind of tiny course corrections that would at least allay the fear that this is an institution that’s out of control. And I think that’s what Kagan is saying. And I think, by the way, that’s the dissent in Dobbs.

Dahlia Lithwick: You know, it is fascinating to me to see nine people who have no check on their power. And, you know, many of them are now making the claim that the real fault here is those of us who want to hold them to account. I don’t know. I find it baffling. I think. Before we go, I want to ask each of you to give one thing. You’ve already given one, Jay.

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Dahlia Lithwick: You know, talk about sourcing who you go to for quotes and who gets columns.

Dahlia Lithwick: But I want you to each give me one recommendation of what you would like to see, not just the Supreme Court press corps, but all of the sort of machinery that covers the court in its various iterations do better in terms of centering some of the concerns that we’ve raised today, something that is a fix, whether it’s how you frame cases or how you cover oral arguments or how a lot of this is in Jay’s piece and some of this is in Steve Vladeck and I the piece that we wrote last year.

Dahlia Lithwick: But Marc, do you want to start and just tell me a thing that journalism could do a lot better with in terms of signaling what is happening at the court and that it’s not just. DOBBS and it’s not just last term and Moore v Harper might be eye glazing boring, but you might want to pay attention.

Mark Joseph Stern: Let me start with a simple suggestion, which is do not get caught up in the human interest story, The narrative that has been spun by lawyers for one side, libertarian and conservative organizations are really good at framing super unsympathetic litigants as the sweetest kind of people you’ll ever meet who are just being crushed by the government. This happened last term with the Coach Kennedy case, the football coach who wanted to prey on the field. He got these gauzy photo shoots in front of the Supreme Court. He was in Sports Illustrated. He got these incredibly generous and sympathetic write ups all across the national press and. He was lying about what happened. This is an ongoing problem in this case. Dahlia, you and I wrote about it over and over again. He wasn’t ever fired. It’s a lie that he was fired. It’s a lie that he was only punished for engaging in silent private prayer. But much of the press just fell for the story because it was so compelling and because readers like Deb and I fear that stuff like that’s going to happen again this term.

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Mark Joseph Stern: I mentioned earlier in the Sackett case that the Clean Water Act case. You know, this family that runs this company that’s dumping garbage into marshes, they are being spun by their litigants as the sweet down home couple in Idaho who just wants to build a sweet little home on their sweet little property. And it’s not true. It’s so easy to fall for if you don’t dig into the briefs. But once you really do, you see that these lawyers are lying to you. This all is a lie. And so, you know, there’s not always one of these human interest angles in these cases. But when there is, I really hope that journalists can rise above the temptation to just buy into the first narrative that’s presented to them and dig a little deeper to see how they are being spun to further the goals of the lawyers who brought this case.

Dahlia Lithwick: How about you, Jay? What fix? I know you have a laundry list of them, but for those people who are going to write hateful and angry emails to you after this episode, what’s your notion of what could be done starting Monday first Monday to better cover? I think the complexity and nuance and the massive power differential that exists at the court.

Speaker 2: I’ll offer two suggestions to that. The first is what I’ll refer to as being willing to fill in the blanks that the justices are leaving in some of these public comments. So like if you’re a liberal justice right now and you know, you referenced earlier the juvenile nature of the justices talking about one another and about what the court is doing in sort of vague terms that reporters understand perfectly well. If you’re a liberal, I don’t know what this coarseness is for anymore. I don’t know what you get by playing nice. That’s sort of a corollary to the problem with writing a spicy dissent. Right. It’s satisfying, but you’re still losing.

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Speaker 2: So I’ll take Kagan’s comments that we referenced earlier. I’m going to read this quote, If there’s a new member of a court and all of a sudden everything is up for grabs, all of a sudden, very fundamental principles of law are being overthrown, are being replaced, then people have a right to say what’s going on here. That doesn’t seem very like, end quote, that you don’t have to be like jurisprudence, Sherlock Holmes, to understand that this is not a hypothetical.

Speaker 2: Right. Elena Kagan is talking about something that just happened at work. And the problem with this sort of criticism, in my view, is that the most prolific members of appellate Twitter are going to see it and instantly understand it and put a bunch of flame emojis after it. But for people without like deeply broken dork brains, like, they might miss this.

Speaker 2: Kagan is making, again, in my view, an important and correct claim that on this court, the distinction between law and politics, which I think has always been dubious at best, is is getting vanishingly thin. But she’s not making it in a way that has a chance of resonating more broadly and generating popular support for changes to the system. She’s criticizing and I get that among the justices, naming names is generally not done. Capital, GE, Capital N, Capital D. But journalists, they do understand this and they are allowed to name names to explain these comments. And I would appreciate reporters who can help inform their readers by presenting the full story.

Speaker 2: And then the other thing I’ll say about this dovetailing with our previous conversation is how to cover the quote unquote legitimacy debate and. I think it’s important to just remember not to go to like 2015 on you, but what we talk about when we talk about legitimacy like this is a subjective concept. You can’t quantify legitimacy, right? Whether you think the current court is legitimate probably has a lot to do, at least in part with whether you agree with the substance of what the court is doing. Otherwise, you’re not going to be talking about legitimacy. It’s not going to be salient to how you think about the court.

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Speaker 2: So I’d like reporters to remember that legitimacy is the dependent variable and the big science guy. Legitimacy is what you earn by virtue of what you do. And you see these conservative justices with these comments lately. What it boils down to is that they’re arguing that their good faith cannot be questioned because they are justices. And I don’t care about the court’s legitimacy in a vacuum. I care about whether the court is doing things that merit the public’s trust. And for as long as the court is doing stuff like it’s done in this past term and will almost certainly do in this upcoming term, I hope its legitimacy crisis gets worse, like they deserve it.

Speaker 2: And as Dahlia said, if you want people to respect you, you need to do things that earn respect. After this most recent term. The idea of Sam Alito getting upset at people in public for doubting the court’s legitimacy, like it’s like my kid spiking her milk cup and then getting, like, deeply offended when I don’t let her hold it anymore. Like, what did you think was going to happen here? Like, you did this to yourself.

Dahlia Lithwick: Gerri Willis is editor in chief of Balls and Strikes, which publishes original commentary and reporting about courts, The judges who preside over them and the legal system they uphold. And his writing on how we cover the court has been really instrumental to my thinking about what it is that we get right and wrong on this beat. And Mark Joseph Stern, as you all know, is my sidekick here at Slate. And the person who always says the thing I’m not quite brave enough to say on this show. He covers the courts and the law and the rule of law. Thank you both. I was afraid it was going to be too narrow for a term opener, and now I think it was just too all encompassing. So thank you both for just the depth and the wisdom that you bring to this conversation. I wish you a very happy 2022 term. I know it will not be.

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Mark Joseph Stern: Thanks, Dalia.

Speaker 2: Thanks for having me, Dalia. I also got to say real quick apologies to my daughter. She’s too. She does not deserve to be compared to Sam Alito. I shouldn’t insult her like that. And as a parents, I got to do better. I got to work on myself.

Dahlia Lithwick: There you go. Look at you. Look at you. Just. Course correcting in real time.

Dahlia Lithwick: And that is a wrap for this episode of Amicus. Thank you so much for listening. And thank you so much for your letters and your questions and your comments. You can always keep in touch at Amicus at Slate.com. Today’s show was produced by Sarah Burningham. Alicia montgomery is vice president of Audio and Ben Richmond is senior director of operations for podcasts at Slate. We’ll be back with another episode of Amicus next week with news and analysis from the first big cases of the 2022 term the Alabama Voting Rights case and the Clean Water Act arguments. Until then, take good care.