S1: This ad free podcast is part of your Slate plus membership. Just a heads up that while Amicus is generally not a super scary show, one of the cases we’re discussing this week does involve some strong language.
S2: Was Congress wrong when it said that the mandate was the key to the whole thing that we spent spent all that time talking about broccoli for nothing?
S3: I’m not saying this is a legal I’m saying did you do it? And then that opens up the debate to citizens who care about responsibility and ethics to advocate for change.
S1: Hi and welcome back to Amicus. This is Slate’s podcast about the courts and the law and the Supreme Court and the rule of law. I’m Dahlia Lithwick and I cover some of those things for Slate. This past week has been a little calm before the storm ish at the High Court, although that’s going to change in the coming days. In the US Senate and the House, we’re wrangling about the filibuster and the January 6th commission and also about ethics reform. And later on in this show, we’re going to hear from Representative Katie Porter of California about the connection between corruption and ethics rules and congressional oversight and all the ways in which a failure to check basic corruption, self-interest and self dealing today really just invites a whole lot more of the same in the future. But before that, back in Laughland, we find ourselves in the homestretch at the highest court in the land. We’re in the last few weeks of a Supreme Court term that feels like it opened a million years ago, back when Ruth Bader Ginsburg still sat on the bench. This term has seen some radical shifts at the court. Amy CONI Barrett replacing RBG, a raft of religious liberty cases that were decided on almost purely partisan lines. The court is taking on some big, big cases for next term. It did step back from some of the most dramatic interventions this year, which is my fancy way of saying, hey, the court didn’t help steal the 2020 election for Donald Trump. Today, we’re going to kind of flip the show and we’re going to go first to our check in with Slate’s Mark Joseph Stern. He covers the Supreme Court for Slate Dotcom. Mark and I usually chat for our Slate plus subscribers at the end of the show. But this week he needs to be the show because there’s a whole host of cases that are going to be decided in the coming weeks with arguments behind us, decisions right ahead of us. We just needed Mark to expertly sherpa us through what we should be watching for, what could happen and what we might miss. Slate plus, members fear not. Our very extra special Slate plus segment with Mark is also happening at the end of the show. So stick around for a conversation about the Stanford Law student who was almost denied his diploma after mocking the Federalist Society in an email. Mark wrote the heck out of that story this week. So now for our first segment today, we are going to talk to Mark Joseph Stern. He covers the Supreme Court and the law justice voting. So many other things for Slate. Usually he ends the show with us in a Slate plus segment. That is a lot of people say the best part of the show where he and I gossip about the term and the cases. But we’re going to actually talk to Mark first today to try to get a handle on the four or five big, big ticket cases that are coming barreling toward us in the coming weeks. What to look for, what to expect. Mark Joseph Stern, welcome to the big, big main show.
S4: Thank you. So happy to be here. Exiting the the Slate plus VIP room and entering the main club with all the masses. This is going to be a great time.
S1: It’s like literally it’s the petting zoo. Welcome. I love you. Let’s talk about there are I don’t I’m not quite sure where the convention has arisen that there are, quote unquote, four big cases left to be decided. But that seems to be the number in every piece I read. So maybe we’ll start with that question. Are there only four big cases that everyone’s watching for the rest of the term?
S4: No, I think there are more than four and I was reminded of this on Thursday when the court released just one opinion for the day, Van Buren versus the United States, which is a big case about this anti hacking law. And I tweeted that it was not a blockbuster and got a lot of backlash from people who have devoted their lives to the very worthy cause of interpreting this impossible statute that the Supreme Court mirrored in that case. So every case. The blockbuster to someone, but I think that’s probably there are like five to six really big ones left and we can zero in on the four that will have like the most impact on people’s lives and on politics and American law for the rest of our own lives.
S1: Let’s before we do that, one of the things that I have bemoaned after years of Supreme Court reporting is that convention and you and I have talked about this secretly, but that convention that starts with the curtain raiser in October that says these are the six big cases to watch because it always misses a bunch and certainly misses the cases that get added after. But it also kind of frames the year in terms of these will be the blockbusters, these will be the not blockbusters. And then every term you get a case that nobody thought was a blockbuster and was not really covered as though it mattered. That turns out to be massively consequential, not just for someone, but for everyone. It’s just that there is this convention that says we do this big sort the last week of September.
S4: Yeah, totally. And I think that that convention misses cases that are a little wonky, a little technical, but really matter a great deal. And I think the classic example of this is Epic Systems, a case from a few terms ago where the Supreme Court just like brutally gutted the National Labor Relations Act and kind of abolished workers rights to band together collectively to sue for workplace wrongs. And that was just a case that wasn’t on most people’s radars unless you were a labor lawyer or like an arbitration lawyer. And it was devastating to American employees ability to defend their own rights together, which had been a kind of fundamental right in American federal law going back to the New Deal. And it just barely got attention, at least before the decision came down. And people like me ran around with our hair on fire, which is kind of what we do. And it’s, you know, it’s what we’re paid to do. But, you know, if you only start screaming about how the building is burning down after it’s, you know, collapsed into rubble, it doesn’t much matter. And so I think it’s important to flag cases at the outset that will have the potential to destroy really important laws or hurt a lot of people. Even if you have to spend a few extra minutes explaining, like the statutory interpretation of why this Katari clause does not say what Neil Gorsuch thinks.
S1: It says in my example that I always used to make the same point is Igbo, which was a case that we all failed. Yes. To cover correctly and changed the pleading standards forever. And we notice that only after and when I think let’s please not malign the entire Supreme Court press corps, but I do think there’s a real problem in designating some cases as worthy and others less worthy of having done that. We are now about to designate four cases as completely worthy of all our attention for the rest of the show. So so maybe let’s start where I guess we started at the beginning of the term with the Affordable Care Act and a case that we’re waiting, waiting, waiting, waiting, waiting to hear what’s going to happen next in terms of whether the ACA survives yet another challenge by those who would like to bring it to its knees.
S4: Yeah, so yet another it seems like there have been hundreds at this point. And in the lower courts there have been, in fact. But this is the third time that the U.S. Supreme Court has considered just destroying the Affordable Care Act. And this may be the most frivolous, daft challenge yet. So as people may or may not remember, the only substantive legislation that Congress passed under Donald Trump was a big tax cut bill that included a provision zeroing out the penalty for people who did not purchase health insurance. So the individual mandate is still technically on the books. It says you have to buy health insurance, but there is a zero dollar penalty for people who do not buy health insurance. And this was done this way because of the reconciliation process with which we are all so familiar. Now, Republicans did not hesitate to use it for a second when they wanted to cut very rich people’s taxes in twenty seventeen. So a bunch of conservative lawyers and state attorneys general took the ball and ran with it after Congress zeroed out the mandate and said, hey, now that there is no penalty, this is no longer a tax, it is a command. And as you may remember, when the Supreme Court upheld Obamacare in 2012, John Roberts upheld the individual mandate because he called it a tax. He said this is collecting revenue. It’s a tax. It fits neatly into Congress’s taxing power. Challengers to the law now say, well, it’s not a tax anymore. It’s not collecting revenue and it’s not giving you a choice. It is telling Americans you have to purchase health insurance and. It’s just a command on its own, and the theory here is, well, people are presumed to want to follow the law, and even if there is no penalty for not buying health insurance, it is still a command that people will presume they must follow. And as such, it exceeds Congress’s power to regulate commerce or to collect taxes. That means it’s unconstitutional and we think that it cannot be severed from the rest of the law. And so the entirety of the Affordable Care Act, the exchanges, the tax credits, Medicaid expansion, all of this stuff that has expanded health insurance to about 20 million people, all of that has to come tumbling down with the mandate. And so these challengers have asked the Supreme Court to eradicate Obamacare, root and branch, and, in fact, stripping health insurance from more than 20 million people, some of whom will assuredly die if they are denied access to medical care.
S1: Let’s talk for a minute about I guess there’s two questions in this question rendering me Stephen Breyer. But let’s let’s let’s talk briefly about why it is that the court heard this at the very beginning of the term. And we’re still waiting this. We’ve been sitting on it for a long time. And I would commend to folks Joan Biskupic has a really good piece this week about what happens at the end of the term, what happens when the votes have been taken. We know who’s writing opinions and it still takes forever. Maybe talk a little bit, Mark, about why the day that they do a straw poll at the Supreme Court and decide how this is going to be decided is not, in fact, the day that the action ends and then just connected to that, maybe talk a little bit about the ways in which certainly based on oral argument, it does not look as though the Affordable Care Act, root and branch is going to die.
S4: Yeah, good news for people who don’t like mass death in America, really. When the Supreme Court hears a case, as far as we know, we are told that the justices don’t generally confer beforehand before oral arguments. You don’t have strategy sessions among the liberals, for instance, to say here’s the questions we asked to pick off Roberts and Cavnar or whatever, and instead they do their best at oral arguments. They go to conference the next Thursday or Friday and they go around the table or around the phone call and discuss how they’re going to vote. And then they retreat into their cone of silence and they write opinions. And when it is not a unanimous opinion, that process can take a really long time because somebody’s got to write the majority opinion. Then somebody is going to write a dissenting opinion and a big case. There might be concurring opinions. They circulate them all around and then the justices start responding to each other. Alito and Kagan love to snipe back and forth and footnotes at each other. Some justices do that more than others. And when a case is taking a really long time, as this one is, it’s pretty safe to assume that it’s going to be a splintered decision with at least one vigorous dissent and possibly a divide between the justices that shifts based on the question. So going back to oral arguments, it seemed very obvious from oral arguments that there are not five votes to destroy the Affordable Care Act. Instead, we heard both John Roberts and Brett Kavanaugh essentially concede that the individual mandate can be severed from the rest of the law if it’s unconstitutional. And that makes really good sense, because that’s exactly what Congress said in 2017 when Congress zeroed out the penalty. Congress basically took a bullhorn and shouted from the front steps of the Capitol, like, we think this can be severed from the rest of Obamacare. But then the question is, are there still five votes to strike down the mandate to say, well, the mandate’s now unconstitutional but will uphold the rest of the law? Or perhaps there is a majority to strike down part of the rest of the law to say, for instance, that protections for preexisting conditions are inextricably tied to the mandate and they have to fall as well. But Medicaid expansion can stand. There’s all of these really complicated questions that’s going to take forever for the court to sort out behind the scenes. And again, the longer they sit on this opinion, the longer we wait, the better sense we have that this is going to be divided and that there may not even be one single majority opinion that speaks for the entire court.
S1: I always tell people the reason there’s never been a TV series about the Supreme Court that’s lasted more than four or five episodes is that we have this fantasy that the way justices get to five votes is they sort of leap out of elevators at one another, you know, where they run up to each other in the cafeteria and like, take all the carrots away and say, I won’t give you any of these until you. And it just doesn’t work that way. I mean, the way you get to five or you get to four, you get to a plurality or you get to a bunch of concurrences is just by circulating draft opinions. Right. And they’re not, in fact, browbeating one another in the cantilevered staircase. And I think that because of that. Because it’s. Largely done by way of interoffice memos and drafting and notes to one another saying, I can’t live with this, but I can live with this, it makes for a really bad evening television, but that is, in fact, how it’s done.
S4: Yeah, and a lot of those notes that the public will never see because the justices have total control over their papers and some of them just burn them or keep them secret until everyone who is currently alive is dead. I will say that in the Warren Court era, justices did occasionally pop out of elevators or steal all the carrots to round up five votes. This was something that Justice Bill Brennan was really good at doing the charm offensive to persuade a colleague on the fence to join join the majority. And Chief Justice Earl Warren famously met with the holdouts to convince them to sign on to Brown vs. Board of Education to make it a unanimous decision, even though some of them were like, no, this is wrong. Warren convinced them that it was worth preserving the institutional power of the court by speaking with just one voice. But that doesn’t seem to happen today, really today. It’s just, you know, nasty grams circulated between offices until everybody just throws in the towel and says, all right, it’s time to publish this.
S1: Let’s talk about Fulton, I know it’s a case that you have thought and written about a ton. It’s also one that we’ve been waiting on for quite some time. And this does feel like it could be ground changing.
S4: Yeah, and really bad. And I think we actually have a preview of what Fulton is going to say on the basis of the Supreme Court’s covid decisions. Right. Because as you and I have discussed, that the Supreme Court has fundamentally altered its free exercise jurisprudence through a series of shadow docket decisions, unsigned five to four rulings that over turned employment division vs. Smith, in essence, that the sort of lodestar of free exercise jurisprudence and instead really jacked up the standard for any kind of burden on religious liberty claim. And so here we have a foster care agency in the city of Philadelphia that contracts with Philadelphia to screen parents, potential foster parents to take in children. Again, this is at the screening stage. So they’re just sort of talking to the parents, you know, scrutinizing them, making sure that they would be a good fit. And one foster care agency, which is Catholic, refuses to screen same sex couples and in the process shrinks the overall pool of people who are approved to foster children in Philadelphia. So by refusing to work with same sex couples, this agency is essentially forcing children to remain in the foster care system without a home, without foster parents. The city of Philadelphia said, hey, you know, we actually have to follow this nondiscrimination rule that we’re not allowed to discriminate against same sex couples. And we have this law that says that our contractors have to follow this nondiscrimination rule as well. So we cannot continue to give you grant money to screen potential parents if you’re not going to follow this rule and work with same sex couples. In fact, the city said, look, we’ll continue to give you money for other stuff like this agency runs a Kongregate care facility where they take care of multiple children who aren’t found homes yet. You said totally fine, you keep doing that, will keep funding you. But we’re not going to give you the money to screen parents because you are discriminating and making it harder for us to place children in loving homes. And the agency turned around and filed a lawsuit and said this is a violation of our right to free exercise of religion under the First Amendment and under previous precedent. That was just a frivolous claim because there is absolutely no evidence that Philadelphia is targeting this agency, trying to discriminate against this agency, singling it out for disparate treatment. It’s just saying follow the rules. But under the Supreme Court’s shadow docket covid decisions, there is a real possibility that this new ultra conservative majority will say, actually, the rules have changed and you are obligated that Philadelphia to create an exemption for this agency for whatever pretextual reason Brett Kavanaugh can think of. Maybe Kavanaugh will falsely accuse Philadelphia of targeting the agency. That’s what he suggested at oral arguments, which is a lie. But Brett Kavanaugh gets to lie because he’s on the Supreme Court.
S2: Seems like Philadelphia created a clash, it seems, and was looking for a fight. And it brought that serious, controversial fight all the way to the Supreme Court, even though no same sex couple had gone to success, even though 30 agencies are available for same sex couples. And even though success would refer any same sex couple to one of those other agencies. And to be clear, I fully appreciate the stigmatic harm. I completely understand that. Fully appreciate it. But we need to find a balance that also respects religious beliefs. That was the promise explicitly written by the court in a birdsell and a masterpiece, explicitly promised that respect for religious beliefs. And what I see or hear is that the absolutist and extreme position that you’re articulating would require us to go back on the promise of respect for religious believers. You know,
S4: the court could also say, well, you’ve got exemptions at other stages of the process, so you have to grant an exemption to this agency. Either way, however, it happens if the court rules for the agency and against Philadelphia, it will open a huge loophole in nondiscrimination law. Right, because it will essentially say that if a religious actor wants to avoid a nondiscrimination law that applies to everybody else, then they get to and they can just kind of create whatever nonsensical reason they want. You evade this rule, and that has all kinds of terrible downstream effects, I think, for all kinds of government programs, not just in adoption and foster care, but everything a city contracts with. I mean, you could even imagine a religious trash collector saying we’re not collecting garbage from gay couples house because it violates our religious rights. And I suspect that under Fulton, the city would have to yield.
S1: Mark, you mentioned employment division. One of the issues I think around this case that is a kind of meta issue is whether employment division is still going to be good law. And if the court is going to go ahead and do away with the employment division, even without writing that. And I wonder if you can just lay out what happened in that case, why it is, as you say, a lodestar and what it means if the court just kind of steps around it without dealing with it in full.
S4: Yeah. So I think the court will do what it’s done with these covid decisions, which is just rewrite Smith to say something that emphatically did not say. So this was a decision in 1990 written by Justice Antonin Scalia, who is of course, known for his deference to religious liberty, though usually by majority religions. And this was a case involving a native practice of taking a drug with psychedelic effects and peyote. And the individual who took peyote wanted to collect unemployment insurance, but was barred from doing so because he had traces of this illegal drug in his system. And he sued and said, well, it’s a violation of my free exercise rights because this is part of my religious practice. And the Supreme Court said, well, no, it’s not, because if there is a general law that’s applicable to everybody and it happens to burden your religious exercise, you don’t have a First Amendment claim. You don’t get to demand an accommodation or an exemption. And what the court has done with the covid decisions is carved out an exception that it’s the rule of Smith by saying, OK, but if there is any kind of exemption for anybody else, then you you, the government have to grant the exemption to religious people, to religious businesses for religious purposes. So in the covid cases, the court said, well, if a bakeshop can stay open during covid, if a liquor store can stay open during covid, then a church has to stay open during covid, even though people are only in the liquor store for like two minutes and not very close to each other, whereas there in the church for hours and they’re right next to each other, singing very loudly and spreading covid
S1: mark, we. Started the show by saying this was a big year for the Supreme Court in that it stayed out of voting rights, having flipped it, the fact that if we look at some of the early covid voting cases and the rules that were changing, there was an appetite, I think, from Justices Cavanaugh and Alito to get involved in the 2020 election. The court wisely stood down, but it would be a lie to say the court did not look at a really, really important voting question in Burna Bitch. And that that is also pending. And I guess we should say the court’s decision to stay out of the 2020 election does not mean that the court is not, in fact, up to its neck in voting rights right now.
S4: Right. It’s just teeing up for the 2022 election and twenty, twenty four. So we should talk about Bernabe v. DNC. This is the Arizona case that really kind of puts the Voting Rights Act on the chopping block
S1: left of the voting rights.
S4: So in 2013, the Supreme Court gutted the centerpiece of the Voting Rights Act, which was the preclearance requirement that required states with a history of racial voting discrimination to submit changes to election law to the Justice Department for approval to make sure that they didn’t have a disparate impact on racial minorities. So that’s gone. The only thing left really is Section two, which prohibits both intentional discrimination against minority voters, but also any kind of election law that has the effect of burdening minorities disproportionately. So, for instance, a state could pass a law that shutter’s a bunch of polling places exclusively in minority areas. The minority groups who sue might not be able to prove that the state really wanted to keep black voters from voting, but they could say, hey, this has a 90 percent impact on black people and a zero percent impact on white people. And theoretically, that action could be blocked under Section two. And now that test, this disproportionate disparate impact test is on the line in Birnbach because the case involves two Arizona voting laws that have exactly the discriminatory, disproportionate impact that I just described. In my example, you have one that nullifies ballots that were cast in the wrong precinct. So this is the right church wrong pue problem where a voter accidentally goes to a different precinct than the one they’re assigned. They fill out a ballot. It might be the exact ballot that they would have at the correct precinct. It might have a few races that are different, but the state just nullifies the entire thing. And mysteriously, precincts in minority areas tend to shift around a great deal more than precincts in white areas in Arizona. And people of color tend to vote out of precinct more frequently, in part because they’re confused, because their precincts are constantly being shifted, in part because mysteriously their precincts tend to be further away from their homes than those of white people. And that is the kind of disparate impact that should be blocked under Section two of the Voting Rights Act. But it looks like the Supreme Court is going to uphold it. Similar story for Arizona’s ballot collection law. This is referred to as ballot harvesting by enemies of voting rights and Republicans. But I repeat myself, and this is a case where basically Arizona for a very long time allowed community organizers, family members, other individuals to collect mail ballots from individuals, from their homes and bring them to the election center to election officials. And there’s no evidence that this was used for fraud in Arizona ever. It was actually really important for Hispanic communities who don’t necessarily have great access to mail ballots in the first place, don’t have reliable USPS service. Thanks, Lewis Dejoy. And this, too, has a really big benefit for minority communities. So Arizona Republicans repealed it, actually criminalized it. And once again, that’s the kind of thing that should be blocked under Section two of the Voting Rights Act because it has a massively disproportionate impact on racial minorities. But once again, it looks like the Supreme Court is going to uphold both of these laws under the theory that states have such an overwhelming interest in preventing voter fraud that they can do anything they want to make it really hard for people to vote. And here we have this great meal, Gorsuch quote, where he’s sounding like Donald Trump on November 2nd. Twenty twenty, basically saying, like, does Arizona have to wait until its election is stolen just to put some election integrity laws into place?
S2: Arizona have to wait for fraud to occur in Arizona using a practice. US. No, you’re right, line. No, your honor, but as this court has said, OK, so it doesn’t matter, then you agree. It doesn’t matter that they’re harvesting hasn’t resulted in fraud in Arizona. How many states how many elections does it need to affect out of state before Arizona can take cognisance of it in its own state? Your Honor? What this court said is that when in McCutcheon is that when a legislature takes a prophylactic, a prophylactic approach, the courts should be particularly diligent in scrutinizing the law. And that should be I’m afraid that I’m just asking that, you know, how many elections what would be enough in the secretary’s view? It doesn’t have to happen in Arizona. How many states does it have to happen in? How many elections, Your Honor? To be clear, Arizona already has a law prohibiting fraudulent ballot collection.
S1: Mark, I want to give you a chance to pan back only because literally, as we are taping this, we’re seeing states around the country passing unbelievably regressing voting bills, again, ostensibly under the theory that voter fraud is rampant and the 2012 election was probably stolen. And who among us can know what really happened there? But just in the light of what we are seeing happening around the country and I think Adam Serwer has a really dispiriting piece on how this really shows that the events of January six don’t need to happen again because it’s going to happen in statehouses passing voter suppression bills. Can you just talk for a minute about why the Voting Rights Act matters, that if you’re a voting rights lawyer and now you have lost preclearance, you’ve lost the things that were lost in Shelby County, why it really actually matters immensely to be able to go to a court and vindicate voting rights now more than ever,
S4: because it’s all that you have left. It’s the only tool in your arsenal. And, you know, for a long time, I think we were lucky in preserving Section five, the preclearance requirements. It was it seemed like this country was maybe on the right track with regard to voting rights for a while. There was not necessarily the kind of extreme aggressive mass disenfranchisement that you see today, but that was because the preclearance requirement existed. I think it’s it’s very obvious and kind of indisputable. If you look at the number of poll closures in minority communities of really draconian voter I.D. laws that target racial minorities, attacks on male voting, all of that stuff happened after Shelby County when the floodgates opened. And so the only thing you have left if you’re a voting rights lawyer is Section two. And really the only thing you have left is this disparate impact test that the so-called results test, because Republican legislators don’t stand on the floor of the state House and say, I hate black people and I don’t want them to vote. And that’s why I introduced this bill. They say we need election integrity, just like Neil Gorsuch. They echo Neil Gorsuch and say we need to prevent fraud. You know, we may never, ever have detected a scintilla of fraud in this state, but we know it’s there and we need to stop it. And so it’s really impossible to prove racist intent. The only thing you can prove if you’re a lawyer is that this law suppresses the votes of racial minorities in an extremely disproportionate way. And up until now, that has been enough to block a law under the Voting Rights Act. But these cases seem destined to give the Supreme Court an opportunity to gut that rule and make it pretty much impossible for courts to block voter suppression laws because they have such a disparate impact on on racial minorities.
S1: Mark, the last of the four cases that I wanted to talk about, just I’m sure listeners already know about it just because the facts are so fun and amazing. I was listening to Adam Liptak being interviewed about the case of the cousin cheerleader and he said it was so great. He said on The Daily Show, most of the stuff I cover is I blazingly boring, but this is such an amazing case. So can we talk about cheerleaders, student speech rates through the lens of this is a case that actually even though the facts are amazing and interesting and everybody has an opinion on Snapchat and cheerleaders through the lens of this long history of student speech that was protected by the court in Tinker and has been eroded, eroded, eroded in a million tiny little cuts.
S4: Yeah, so every free speech lover knows Tinker v. Des Moines, which was a 1969 Supreme Court decision at the tail end of the Warren Court where the Supreme Court ruled in favor of these students in high school who were wearing black armbands to protest the Vietnam War, the Supreme Court said the school can’t punish the students. This is a public school. It is part of the government. And these students have free speech rights, which they do not leave behind at the schoolhouse gates. Big decision. Everybody seems to agree with it, but it has largely fallen apart in the intervening decades for a couple of reasons. First, the Supreme Court has just gotten pretty hostile to the free speech rights of students, in part because a lot of student speech cases don’t involve some sort of valiant and noble like protesting the Vietnam War. And, you know, this is the reality of First Amendment jurisprudence. A lot of speech that is punished unconstitutionally is kind of gross or offensive. There was a student who made some sexual innuendo at a school wide speech who the Supreme Court allowed to be punished. There was the student who famously held up the banner that read Bong Hits for Jesus at a school supervised event. The Supreme Court said, by all means, punish them. There were the students who wanted to write about birth control and abortion in their school newspaper. The Supreme Court said they can be censored. So this has been a kind of slide down the slope ever since Tinka way back in 1969. And the cursing cheerleader case is maybe an opportunity for the Supreme Court to reinvigorate student speech rights. But it comes with this caveat that it’s sort of an existential challenge to the very concept of free speech rights on campus, because as we all know with the Internet, a lot of student speech occurs off campus. That was what happened here. This cheerleader, Brandi Levy, she was rejected from the varsity cheer squad. She went with her friend to the Coco Hut, a local convenience store, and snapped a picture of herself with the caption, fuck school, fuck softball, fuck cheer, fuck everything. One of her fellow students followed her on Snapchat and was a narc and showed the snap to her mom, who happened to be the cheerleading coach. And the cheerleading coach punished Brandi Levy and kicked her off the team for the rest of the year. And we should note that Brandi Levy did make varsity the next year. So justice for Brandi. But the the student, Brandi Levy, sued for her punishment and said, look, I was exercising my free speech rights. You can’t punish me for this. The lower court of appeals agreed and said actually the school can’t punish students for anything they say off campus like this is not in the world of Tinker. This is just basic First Amendment stuff. Like if Brandi Levy wants to Snapchat herself saying the F bomb, the school has no business punishing her for that. This case went to the Supreme Court, I think, because a lot of justices are concerned with that super laissez faire attitude because they understand that speech that happens off campus affects what happens on campus. Right. There’s no longer this clear dividing line between the students and tinker crossing the schoolhouse gate into the threshold of their high school. Now, the speech happens on phones, on computers, on iPads. It trickles back onto campus and has real consequences. And I think Stephen Breyer said it quite honestly when he admitted during oral arguments that he is frightened to death, of creating a standard here that protects a sufficient amount of speech without making it impossible for school administrators to do their job, because that does seem like a really hard task. And I don’t envy Breyer and the rest for having to handle it.
S5: There are dozens of areas that didn’t used to be thought of as within the purview of the public school. Today, in many places they are that add to that the Internet. And the Internet not just listening to teachers, but also doing homework and also writing papers, sometimes vaguely defined. I’m frightened to death of writing a stamp.
S1: This is one of those cases, Mark, where it’s clear that doctrine has not caught up to tech and that the Supreme Court justices are, I think, to their immense credit, mindful of the fact that they don’t completely understand what they might unleash on the world, both because tech is moving so fast and because, as you say, the old rubrics are just so archaic that they’re useless. Right. And there is this sense that the justices both desperately wanted to take this case because it is urgently necessary to fix this and also don’t want to touch this with a ten foot pole because it is possible they’re going to make everything worse.
S4: Yes. And going back to our earlier conversation, this seems like it has the potential to splinter the court really badly, to wind up with no single majority opinion, but a bunch of separate concurring opinions and plurality opinions and dissenting opinions that actually just muddy the waters even more and leave this doctrine in more of a mess than it was in when the Supreme Court took it up, which is not what the court’s supposed to do, but happens fairly frequently when every justice feels it’s extremely important for their idiosyncratic views to be put on paper and into the law.
S1: Mark, we started by a protracted, snarky thing about the announcement that there were only four cases to watch for the rest of the term. So I want to give you the opportunity to tell our listeners other things that they should be watching. I know there are actually materially, urgently important other cases. What else should folks be looking out for and thinking about as the term winds to its close?
S4: You know, I think the other big one just out of the top four is the Americans for Prosperity case. This is a case about a California law that requires major, major donors to nonprofits, people who have donated, in some cases, hundreds of thousands of dollars to have their identities disclosed to the state attorney general. That disclosure is secret. It only goes to the state attorney general. The public can’t access it. But the state attorney general then uses the information to ensure that charities, nonprofits are doing what they promised their donors they would do. And this has been a real problem, right? Charities will solicit money from often very wealthy people, get a ton of it and then use it for a bunch of stuff that was not approved by the donor. That sometimes is kind of sleazy and not what the donor intended. And this law was designed to ensure that the attorney general could keep charities honest. But Americans for Prosperity, this Coke group that spends a lot of money promoting and electing Republicans, sued and alleged that this disclosure requirement is a violation of its First Amendment rights to give a ton of money in total secrecy and allege that California is acting in bad faith, that it’s like leaking this information to punish donors, that this is all a kind of witch hunt to target the real victims among us who are the plutocrats who just want to, you know, fund massive influence peddling, dark money networks. And I think the Supreme Court’s going to agree with Americans for Prosperity and block this law and create this new standard that makes it almost impossible for the government to require disclosures, not just in the context of charities, but in the election context. And so much of this case is really shadowboxing over election law. Right. Because for many years, big high dollar donors have tried to take down these disclosure requirements because they want to fund elections in secret. They don’t want to have to deal with the bother, the trouble of being criticized in public. And it looks like the Supreme Court is going to say that wealthy people have a First Amendment right to not be criticized, basically to fund any campaign, any candidate, any charity they want and not have to face any kind of public consequence because they can do so in total secrecy and anonymity. And I think we should just be clear that that will be a major overhaul in First Amendment law. And for many decades, even conservative justices like Antonin Scalia argued that public criticism is the price you pay for civic engagement and that there’s really no compelling interest in protecting people from getting criticized in public. But this court is very concerned about council culture. They are very concerned about keeping our precious conservative snowflakes from melting under the withering, harsh lights of transparency. And so it looks like the court is going to say that being criticized is so difficult, so hard and so sad for conservatives that they don’t have to face it anymore and they can just buy our elections in total anonymity.
S1: Mark, that’s an amazing launch into our next conversation with Representative Katie Porter about ethics reform, transparency, dark money, the cap. You’re of electoral systems by money that we can’t figure out where it comes from. So thank you for the inadvertent Segway. Mark Joseph Stern covers law courts, Justice, Stanford Law School, everything else for Slate. He’s also, I have to tell you, been holding up the sky the last couple of weeks while I’ve been permitted to finish my book. So if you enjoyed this conversation with Mark, who, as you can tell folks, does not tell you what he really thinks. You can always get more of Mark, including on this show, on Slate plus segment. But, Mark, as ever, you are a joy to talk to you. Thank you for joining us.
S4: Always a pleasure. And I’ll see you at Slate plus bonus segment time.
S1: So now we wanted to turn to questions of money and influence and corruption in government. It’s one of those topics we used to cover exhaustively back at the start of the Trump era when nobody could get enough of that word emoluments. But despite the Hatch Act violations and the self dealing and the promotions of big donors to prominent roles in the government, the entire conversation kind of faded away when Joe Biden took office this year. Perhaps because these problems of big money, foreign money directed at inaugural events, directed at campaigns all felt like maybe it would be less urgent. But evidently the urgency is as real today as it’s always been. This past Thursday, the Biden administration issued a national security study memorandum arguing that corruption, quote, makes government less effective and, quote, attacks the foundations of democratic institutions. In effect, Biden is asking federal agencies to crack down on corruption, quote, as part of the core national security interests of the United States. For Representative Katie Porter, she represents the forty fifth congressional district in Orange County, California. This fight to get rid of foreign funds and big moneyed interests in Washington didn’t stop with the 20 20 election either. Porter and her great whiteboard of Doom have been calling out Big Pharma, big banking, big money for years now. But she’s also been one of the loudest voices in Congress demanding ethics reform and congressional oversight. As a member of the House Oversight and Reform Committee, she’s proposing all these legislative fixes that would prevent corruption and increase transparency. And she wants these fixes to be permanent. I spoke to Representative Porter last week at an online event organized by CREW that stands for Citizens for Responsibility and Ethics in Washington. Crew, as you probably know, has been a leading nonprofit watchdog focused on ethics accountability, getting dark money out of politics. The sound quality here is a tiny bit Zoome, but I just really wanted to share this important conversation with you. So thanks for sharing with us. Representative Porter and I started with the proposition that there’s a pair of clichés that more or less guided us for the past four years of the Trump era. One norms aren’t laws. We thought they were enforceable, but they were always just suff norms. The second was that sometimes even when you have laws, they cannot be enforced against people who simply believe that the law doesn’t affect them. So I started out by asking Representative Porter to set the table about some of the key weaknesses. She had a densified in the Trump era ethics and accountability systems, the areas where laws and norms utterly failed the American people just at the moments we needed them most. So to kind of
S3: table set for my perspective on this important question about laws, norms, two things here have, I think, really been driving factors in how I thought about this work and then how I thought about doing this work. And one is that before I came to Congress, I was a consumer protection advocate. I was a law professor, and I took this big role of trying to help make sure that the big banks, which had signed a binding legal agreement promising to change their practices, actually were doing that in real people’s lives. And so it always began as a law professor and doing that on the ground. Consumer protection work, really interested in the gap between what we think is the law or what the law says and then what’s really happening. And I think that yeah, and the recognition that that gap is real is a level where the really important work the crew does exist is people think there should be a law. What that’s legal, they say, how can that be? But there are a lot of those gaps and there are lots of different ways to to close those gaps, whether it’s through strengthening norms or creating enforceable laws. At the end of my first year in Congress and opening emerged on the Committee on Oversight and Reform and I have gone to Congress wanting to be on the Financial Services Committee. I absolutely love serving there, continuing my work on holding big banks accountable. But one of the things that I very quickly saw in Congress is there is a sort of special interest playbook, the same arguments that bankers make about unintended consequences and overregulation. And we shouldn’t let lawyers decide this or that. All of these same sets of arguments, I would begin to hear from the pharma industry. I would get again to hear some of the arguments I heard from top officials about why they couldn’t actually help people with some of the same arguments I heard from officials in President Obama’s administration, why they couldn’t help people during the foreclosure crisis. We were hearing some of the same arguments during the pandemic, so I asked to join. It was privileged to be selected to join the Committee on Oversight and Reform. And this is Congress’s main investigative body. So it’s where we do a lot of the thinking about where are these gaps. Maybe the law doesn’t say it’s illegal, but we need to do an investigation to understand what happened and then decide if we need to make a law to address that. And so I really, really like that perspective of being able to do that investigatory work and say, I’m not saying this is a legal I’m saying did you do it? And then that opens up the debate to citizens who care about responsibility and ethics to advocate for change. Look, I don’t want to spend our time to talk all about the things the president did to put his own personal and political interests ahead of the national interest. I think the important takeaway here is the one that you question drives that, which is before President Trump engaged in some of that conduct. I think a lot of us have. A sense that that wasn’t what presidents did, you just can’t do that. That’s not a thing. You can’t have campaign rallies on the White House lawn. You can’t engage in this kind of targeting of political opponents in your official capacity as president, foreign interference in our elections. It was a bipartisan we don’t want it kind of thing. So a lot of what we really got looking, though, and one of the hardest things to have to explain to my constituents was that many of the things that President Trump did, not all but many of them were not against the technical law, but they violated long standing norms that really go back to our founding fathers to thinking about what does it take to create and sustain a democracy. Year after year after year requires the president and the executive branch not to engage in certain kinds of behavior that President Trump then went and did things like protections for whistleblowers, the political appointment process, the use of acting officials. If there was a loophole, he went right through it and made it bigger as he passed through. So now we have to do is do the hard work of trying to rebuild the trust in government that was lost as President Trump pushed out and reshaped those norms. And so some of that is going to mean that we’re going to have to move from a known framework to a law framework for at least some of the things that he did, because it’s not enough to say anymore. Nobody would ever do that. We’ve seen someone do that. And so we need to put our country on notice. I don’t say Democrats or Republicans. I’d be very intentional here. We need to put our country very clear, established grounds that X, Y and Z are not just wrong, but they are illegal because that will allow us to address these kinds of behaviors in a less partisan way. One of the problems with norms is it becomes the way you think. You don’t like that, but it’s not illegal. So you’re just pushing your viewpoint laws or laws. We set them out for a reason and then we’re able to enforce them hopefully in a more even handed way. And so that is a lot about what we’re doing with the accountability for acting officials. Act with a number of the bills we’re going to talk about is we’re really concerned with just trying to make clear what the law does require so that if someone goes and breaks that law, we can hold them accountable and hopefully as a procedurally fair and systemic and kind of rule enforcing rule of law kind of approach as possible, rather than the only tool available to Congress was impeachment on many, many of these things. And that is really difficult because inherently impeachment is a political process, not just a legal one. So I think our goal is to to have some clear law here around some of these things. And in fact, President Trump did do and by doing change the norm. So now, if we can’t just reset norms overnight, we have to reset the laws and that we can do relatively quickly if we get the bipartisan agreement about what we want our democracy and its boundaries to look like.
S1: So I think implicitly just answered my next question, but I think I’m going to ask you to unpack it a little. There’s such a strong temptation to say, look, those abuses were so flagrant. You think the White House as a prop for political rallies, hocking your merchandise from from the podium during a briefing, having folks stay at your hotel and pay astronomical prices for access?
S3: Those were
S1: so flagrant that
S3: can’t we just agree
S1: that we’ve now snapped back? The Biden administration is not kind of performing flagrant violations of those norms. And maybe we can all just exhale and say, let’s move on to other pressing issues and understand this was a one off. This was somebody who, by design, violated norms and surrounded himself with that culture. But is this an ongoing pressing problem, given that we seem to have reverted back to a world
S3: in which
S1: we can kind of look in the rearview mirror and say, that was crazy, but it’s not really going to happen again?
S3: No, I think this is a wonderful point. And it’s worth reinforcing to people that this. No, I don’t think you can just say, oh, well, this president did these things. Nobody will ever do it again. We all now understand it’s wrong. I think this is actually crucial to what it means to be a democracy and to be a country governed by rule of law rather than, for example, to rely on something with a long standing problem with, for instance, dictatorship. And benevolent dictatorships is sometimes you get one who’s not benevolent and when he or she may be deposed from power and the next person comes along may have a different set of norms, but that is an unstable system. So the goal of a democracy is to create guardrails, but allow for political differences of opinion for different people with different viewpoints to come into power, but never to be able to shake the system, the rule of law around them. So as relieved as I think we all are to see a president who is talking about the importance of being ethical, who is following a lot of the longstanding norms, I think it’s really important for the future of our democracy and for the United States ability to lead on democracy issues around the world for us to step up and to an extent hold ourselves accountable and say not everybody will act, follows the norms that we thought they would. And that happens in other countries. And when it does, we push them to strengthen their laws, to root out corruption, to prevent that kind of abuse. We have to do the same thing here. And you are law for doing that. Is the Protecting Our Democracy Act, which is an umbrella bill that combines with a number of different bills designed to address this. And I think one of the things that addresses those emoluments, which is a word that I think maybe you and Erwin Chemerinsky and maybe a few other people had ever heard of this word, and this was not exactly Constitution one or one. Right. Many a constitutional law did not have to ever study the emoluments clause. So am I worried about President Biden violating the Emoluments Clause? No, not particularly. Do I think what our founders set in the Constitution about emoluments needs to be fleshed out and updated and modernized so that we have clear rules of the road and we’re not finding about what our Constitution says. Yes. And so I think it’s a great example of we need to update and create more rules around that to reinforce the Constitution’s purpose.
S1: So you said something in your first answer that I want to pull on a little bit, because you talked about the ways in which we need to bolster laws so that there are laws, not norms. One of the things we did see in the last four years is that the courts are slow and ponderous and you can spend years in litigation and not get quick results in exigent times. I think the other check is meant to be congressional oversight. As you said, congressional oversight has been really whittled down to mean we have to have an impeachment because we just don’t have all the other tools of congressional oversight. And this is not the last four years. Right. This has been an ongoing erosion of congressional authority and power. So I wonder if you just talk for a minute about
S3: what we need to do to
S1: bolster Congress’s oversight power and to ensure that if we ever have the kind of just flagrant violations we saw in the last four years, Congress isn’t in a position where they’re talking about throwing people into the tiny jail in the basement.
S3: Yeah. So this is a wonderful point, by the way. And it’s it’s not one that just reflects some kind of recent problems with congressional oversight. This was part of what we saw with Watergate, which was that the investigations were difficult. They took a long time and we could have had a very different presidential response to the Watergate investigation. And in fact, what we have and so it’s very typical, I think, for after these kinds of scandals and go back to Teapot Dome or whatever, in order for Congress to say, OK, we didn’t like what we saw. We tried to communicate that. We asked a lot of questions. We did or did not necessarily get the practice in check. And now it’s time for us to go back and write the law. But nothing about codifying some of these norms into law will ever or should ever reduce the importance of congressional oversight practices. Change technology prevents new causes, new changes, new application for guidance for ethics rules. For example, who’s a family member, for example, is a great thing within our ethics rules, but has evolved a lot. So we’re a good example of this is when I got to Congress, there are rules around your fiance say there are rules around your spouse, but there’s no clarity for people who may be in a long term partnership but are not married. Which ethics rule applies in that situation? Oh, gee, we’ve never been asked. So that’s an example of like society evolves. You have to keep thinking about the ethics rules. No oversight, absolutely is it is an incredibly important part of this, and it’s not just about holding people accountable, but it’s about that fact finding. Now, one of the things we saw in the Trump administration was we saw the real limits of the subpoena power of Congress. And I think that is something that we are as collectively as a body led by folks like Jimmy Raskin and others really grappling with what does it mean to say that Congress has subpoena power if, in fact, we don’t have any tools to enforce the subpoenas and officials could just ignore them with impunity? And that was a real problem. And I think we haven’t come to exactly what the right sort of solutions is for that. But there’s a larger issue just about how Congress uses its oversight capacity. And one of the most frustrating things is elected officials like to give speeches as part of a job, go give as many speeches as you want, but don’t do it in a congressional hearing. You want to get five minutes of remarks about something, go to the House floor every morning, 9:00, 10:00 a.m., stand up for five minutes or one minute and speechify about whatever you want. But hearings are about getting answers and the answers don’t lie within the member. They lie with the witness. So I think trying to really have a developed perspective on what is it we need to know today in order to be able to govern tomorrow. And that goes to the second point I want to make, which is oversight is not it should be breaking news. It should be happening in real time. It should not be the History Channel. And so too often the answer is and we’re seeing this, a lot of the comic relief notwithstanding the efforts of Pogo and crew and others to try to not let this happen. What we’re seeing is after the fact, gee, a lot of that money didn’t go where we thought it was going to go. Gee, some people took advantage of those programs and abused them or even broke the law. Do you even write a law, for example, that said that Congress members couldn’t apply for the people? So guess what? Some Congress members or their families applied for the program. We didn’t think of that. But we have to get better at doing that oversight in real time rather than saying what are the lessons of this crisis or the next crisis? I lived through enough crises. I would like to add to the fact that when you have a crisis and you have to do new government spending and that creates the risk of waste and profiteering. This was a problem, at least from the civil war on if not before. So is there any surprise that in a pandemic we’re going to see that exact same kind of behavior? I don’t think so. And so with the Kahrizak with coronavirus, which is the number of places where I think we’ve fallen short of the mark, there’s a congressional oversight commission that was passed as part of the care result that sounds so bad at Rational Oversight Commission. Guess what, it is never had a chair, therefore it has never had staff there for the most work it’s been able to do is for a few well-meaning members to tweet things. That’s not oversight, that’s pretend oversight, and I think it’s particularly dangerous to the mission of rebuilding trust in government to have this kind of fake oversight where you say you have a commission, but actually you don’t have a commission. You say that you have inspector generals. But in fact, 15 of those offices are vacant. Many of them are filled by political appointees with conflicts of interest. You say you’re going to have a Pandemic Response Accountability Committee, but the president is allowed to interfere with it and shape it in a particular way. So I think we really need to be much more thoughtful about building the capacity to do meaningful oversight by Congress into each and every policy that we enact. What is the built in accountability mechanism? Who will be responsible for answering for this program? That, I think is something we could use some improvement with in terms of not just after the fact. And somebody should do a hearing about this, but instead building in the oversight right into the structure of the law.
S1: I love that answer because it dovetailed so well with where we started, which is you can have all the structures in the world. Representative Porter, I want to give you a chance to talk briefly, and it dovetails exactly with your point that you just made about some of the legislation that you are really trying to put into place to respond to these sagging ethics rules in the last couple of years. And I want to give you a chance to sort of talk about whatever it is you want and you can sort of talk in terms of triage of what you think is most important. But I do think the accountability for Acting Officials Act, which limits who can serve as a quote unquote acting officials and how long they can do that. And I think in response at least to the problem of unconfirmed IGs, the fact that Trump had, I think, more acting secretaries than confirmed ones. Do you want to just talk a little bit about, again, why that really is urgently important? It’s not sort of window dressing for ethics now.
S3: It’s really important to look. No matter who is our president, we need to update some of these ethics laws. These are not I mean, we would all like to believe these problems are limited to a particular person. We had a particular person in President Trump who really exposed each and every weakness, a loophole and. There was a lot of damage done to our country because of the damage done to our democracy because of that, but it also very clearly points the direction forward for what we need to do. So let me highlight a couple of things. First, we need to modernize our governments, government ethics offices. And this is true about the House ethics office as it is about ethics offices in the executive branch departments. We have to make clear that the director of the Office of Government Ethics has the ability to conduct investigations, for example, to subpoena witnesses, to issue civil penalties. We need to make sure the Office of Government Ethics is really serving as a central clearinghouse for ethics actions that are taken by each designated agency office. Because there is a risk and we just had this debate yesterday and hearings. Inspector generals are a great example of this. They exist as creatures on both the legislative branch reporting to Congress and the executive branch. They are housed within the agency they are supposed to be overseeing. And so it’s really, really important that we have the office of Government Ethics kind of being that central, high level clearinghouse. Technology I mentioned just created some some of the challenges, the ability to and people’s expectation and need to be able to get large amounts of information from government, the sort of old days if someone goes to the basement and roots around in a filing cabinet, that needs to stop. And a great example of that is the STOCK Act point, which I’m cosponsoring along with Senator Gillibrand. And it’s really to make sure that the information that we’re required to disclose about transactions is being done so in a way that people can actually get that information in more real time. And also to recognize that while people were focused on stocks, we now have a very large administrative state government programs, whether it’s subsidies for a farm, someone owns a pilot program, whatever it is, we ought to be disclosing all of our elected officials, but disclosing all of the ways that we interact with the federal government. And the STOCK Act would help do that. It would also make clear that you can’t hide behind your spouse, you can’t hide behind your kids. This all needs to be on the table because that’s the reality of a family economic unit that the spouse is making money off certain transactions. There is no doubt that is influential and important thing for the public to assess with regard to the elected officials. One final thing I want to mention is we need to be able to get more information more quickly about how ethics officers are doing their job. So the perfect example of this is that wonderful ethics poster child, Louise Dejoy, our postmaster general. He claims that he has recused himself from certain decisions that he would have a conflict of interest with because it was prior corporate duty. He keeps coming to Congress, he keeps telling us, I recuse myself. But we can’t seem to get and the American people can’t get publication of that recusal agreement, so we’re not clear on what exactly he’s recused himself from. On what basis how about recusal is being effectuated? And that leaves us just basically taking the word about the conflict of interest from a very person who we think has the conflict of interest. And that is, again, that kind of sounds like it’s some Epic’s sounds like there’s a recusal policy, but it isn’t really functioning on the ground in a way that gives the American people confidence. So there’s a lot of elements to this. And I would be remiss, of course, not to mention H.R. one before the People Act, which we hear so much about, the campaign finance aspects of that to reduce the influence of dark money. So much important conversation right now on voting rights, the part of H.R. one that we hear less about, because I think is of particular interest to folks who are engaged with crew, is the transparency and accountability safeguards that are built into what they are really, really important. And the class that I was part of, the class of twenty eight, much like the post Watergate class, very large class, was elected on a reform agenda, was elected not to revert government to Trump, but to make government better, because Trump has caused us to recognize just how important that is.
S1: And I’m just going to flag self-interested. Leave that on the podcast. Senator Sheldon Whitehouse talked really at length and in depth about why those disclosure and transparency provisions are getting ignored and why they really matter. So if people are just drunk on disclosure based on this conversation, it might be a useful listen. I was one of the dummies Representative Porter, who went on the TV shows after the twenty twenty election and said,
S3: actually the one issue
S1: on which there will be bipartisan good faith reform is going to be these anti-corruption and oversight measures precisely because under Biden, because there’s going to be a sense that, my God, whatever happens, we don’t want Joe Biden’s administration to engage in what we just saw happening. I couldn’t have been more wrong about that. It does not feel as though that sense of sauce for the goose sauce for the gander. Both parties have such a vested interest in all of these checking mechanisms simply because both parties are well aware that, as you said at the beginning, the other side may do it.
S3: Do you have a sort of
S1: theory of the case for why it is that there hasn’t been a kind of widespread agreement that whatever side you were on, we never want to see what happened for the last four years happen again?
S3: Yeah, no, this is I want to say to your great credit, you were not alone in thinking this. I think a lot of us thought, OK, now we’re going to see a real push, just like we saw after Watergate, actually from both sides of the aisle, think it was an effort of the Republican Party to take part in some of those reforms in an effort to rehabilitate their reputation post Watergate. We haven’t really seen that. And I think one of the most sort of the theory, one of the things I hear a lot is, well, we have to be able to say, but look at what trumped it. And if we make it impossible for somebody to do that again. Well, then, is it sort of it’s not all about the Republican Party having elected Trump and maybe their nominee, and I think that’s part of what’s going on the Democratic side. I think on the Republican side, two things are happening. One, Donald Trump may be going to Twitter, but he is not. That he is a political figure and will remain a political figure and a force in shaping the party. And we just saw some of that in the discussion in the Republican conference between Liz Cheney and only Stefanic and suppose other people. So President Trump may not be on Twitter, but don’t let any of us think that that does not mean that he or his supporters or the people who crafted his platform or effectuated his policies are not still at work. They are. And so that they obviously have a vested interest in not exposing a lot of wrongdoing. Because once we say what President Trump did, you ever do it again? What we’re effectively saying is because it was so bad. Right. And then I think the other thing is there’s another faction of the Republican Party who just wants to put Trump and some of his misconduct in the rearview mirror. And they’re really trying to say any misconduct was personal to Donald Trump. And if the person is gone, the problem is gone. And I think that’s irresponsible on both party side. So I have no expectation that President Biden is going to engage in some of the things that President Trump does. I don’t hear those actions are wrong. They are a harm not to Republicans, not to Democrats. They are harm to our democracy. So that is what I represent, a district that’s about equal numbers of Republicans and Democrats and a whole lot of independents. And one of the most important political things for people to understand is you don’t just win independence for moderation on health care or through kind of vague viewpoints where they’re not really sure whether you’re taking a stand one way or the other. You win independence by recognizing that some of their distrust in our democracy is legitimate and by responding to it, by trying to make government better. And so it’s not enough to just campaign and say, trust us, we’re Democrats, trust us, we’re Republicans. We have to actually take actions to regain that trust. I think that’s ultimately what either party they need to support these reforms, because I think that’s how they’re going to regain the trust of the American people for the next decade or two of elections.
S1: That was my conversation with Representative Katie Porter. She represents the forty fifth congressional district in Orange County, California, at an event put on last week by CREW, which stands for Citizens for Responsibility and Ethics in Washington. Crew has been a leading nonprofit watchdog focused on ethics, accountability and getting dark money out of politics. So we are back with the extra special Cherry on Top Slate plus edition of our show. And we’re back with Marc Stern. We just talked about the end of the court term, but you’ve actually been very busy this week, Mark, reporting on my alma mater, Stanford Law School, and good times with the Federalist Society and more free speech. So I wonder if we can talk for a moment about what almost happened at Stanford Law School and why.
S4: Yeah, so this is a very curious case of free speech for me, but not for me. The background here is that in January, a Stanford law student, a third year student, sent around to this listserv for sort of political commentary at Stanford Law, a fake flier for a fake Federalist Society event that was the originalist case for inciting insurrection. And look, if you spend roughly two seconds looking at this flyer, you will see that it’s satire in part because it was sent around weeks after January 6th. But the event is scheduled for January 6th. And says Riet, information will be emailed to the morning of the event. And it’s very funny, I think. I think that the student who sent it, Nicholas Wallace, could have a future in comedy writing if he wanted. But he has better things ahead of him. Let’s be honest. And the event is for two speakers, Texas Attorney General Ken Paxton and Missouri Senator Josh Holley, who, of course, were key players in inciting the January 6th insurrection. So Nick made this fake flyer that said, you know, Paxton and Holly are going to come and talk to us about why the framers would have supported doing a coup. And I encourage everyone to read it. It’s very funny. It was not well received by the Stanford Federalist Society, who, two months after the flyer was circulated, approached Stanford itself. We should be clear here, not the law school, but administrators at Stanford University and complained about this flyer and suggested it was defamatory. They then waited two more months until the final week of classes at Stanford Law and filed a formal complaint at Stanford alleging that Nicholas Wallace, who made this flyer, had defamed them and thus violated the school’s community standards and Stanford dupe that it was responded by taking this seriously, placing a hold on Nick Wallace’s diploma. So preventing him from actually graduating and launching a disciplinary investigation to determine if he had, in fact, defamed the Stanford Federalist Society and violated Stanford’s rules. Now, this is a bit of a problem because California has something called a Léonard law or the Léonard law that requires private universities like Stanford to adhere to the First Amendment. And this flyer was obviously satire protected by the First Amendment. So the Federalist Society was essentially taking advantage of Stanford’s lack of familiarity with First Amendment jurisprudence to terrify and penalize Nick Wallace for making fun of them.
S1: And just a couple of predicate facts that I think we should dump in to the conversation before we figure out the merits. One is this was actually in addition to being a piece of pretty funny satire, as you point out, a very coherent and material criticism of the Federalist Society’s refusal to comment on Paxton and on Holly refusal. So in other words, this was not just a potshot at feds. This was Fed. Fedspeak asked multiple times to distance themselves from various senators and other political figures who had been involved in January six. And feds are doing nothing. Right. So there was a critique there. And I guess the other thing we should just put in here is, Mark, can you explain defamation to the listeners of Slate?
S4: Plus, it’s not this does not help. Defamation has to first of all, and this is the threshold, it has to assert actual facts, potential facts. And, you know, it has to make a statement of fact about somebody else. It can’t be a joke. It can’t be satire. There is the famous case of Hustler v. Falwell where Hustler magazine. Published this satirical narrative about Jerry Falwell, about having sex with his mom in an outhouse, and the Supreme Court unanimously said, whatever the merits of this joke, this is not actionable because it is protected by the First Amendment as satire. And that’s clearly the situation we have here. It’s almost it’s almost an identical set of facts, really. Same deal, pretending to be a different person, a different organization to really nail that critique that Stanford Fed sock has been playing footsie with insurrectionist, lifting up insurrectionist, close ties to insurrectionist, and then refuse to say anything to distance itself from this insurrectionist.
S1: OK, so before we get to what Stanford has done since you published on this, can you tell us for a minute about how Nick Wallace has spent his finals and the time he should have spent ending law school and sorting out his life?
S4: Yep. SonicWALL has spent his season of final exams dealing with Stanford’s very intensive investigation into his protected speech. He had to go to multiple meetings, deal with different layers of Stanford’s bureaucracy, all the while being told that he might not be allowed to graduate. And we should note here that Nick is going to take the bar in Michigan, which requires bar takers to send their diploma immediately upon graduation. So if this diploma holds had remained, Nick would not have been able to take the bar in Michigan and become a lawyer, which is, I think, a pretty serious penalty for making a joke about Fedspeak. And so, Nick, instead of studying for finals and really throwing himself into his very last week of of exams, had to fend off this ridiculous attack on his own freedom of expression. That was we should never stop reminding people crafted, launched, designed by an organization, the Federalist Society, that purports to be committed to free speech on campus.
S1: So, Mark, what decision was taken in the wake of widespread reporting? Largely yours, I think was the beginning of the storm. What happened? How did this resolve?
S4: Yeah, so I think fire, which is a great organization, I don’t always agree with their positions, but they are steadfast defenders of students rights and particularly students free speech rights. Fire stepped in, representing Nick, sent a complaint to Stanford, basically a cease and desist saying this is protected speech. Yolla, Krey, like you need to back off immediately. And one day later, not long after my piece and some other reporting came out, Stanford lifted the hold on Nick’s diploma. Stanford said it consulted with outside counsel, determined that Nick speech was protected and decided that he would be allowed to graduate after all.
S1: So I am in possession of a note from Jenny Martinez. She’s the dean of Stanford Law School, indicating, as you did, this was a decision that was taken by Stanford University, not the law school. She only really found out about a lot of this in recent days. But it does raise this question. We are having a seismic earth shattering democracy up ending battle about cancer, culture and speech and who gets to talk and who doesn’t and who pays the price and how people are punished for what they say. And all that is happening under this crazy, rickety scaffolding of universities and lawsuits and the entities that have to always be cautious and risk averse. I mean, there is just a weird way in which every time you take this to the lawyers, at least for a time, speech gets screwed.
S4: Yeah, because even universities like Stanford can get played and have these rickety processes in place that do not immediately screen out frivolous complaints against protected speech. And that’s something that Nick has said he’s going to work with Stanford on to try to improve it. Stanford has said they will consider some kind of threshold examination next time. That may be before placing a hold on a third year law students diploma during finals week. Maybe they’ll consult with the lawyers first and decide whether they’re violating California law and infringing on freedom of expression. But the fact that that that process didn’t exist yet, that Nick was treated like a plagiarist would be treated. That was the process. He was he had to undergo the same process as someone accused of plagiarism. That just shows what an. Mark, universities are and Stanford might fix this process, but I think, you know, we all now know, including other malign Federalist Society officers, that at other law schools that it’s pretty easy to game the system and at least force your critics to spend a few days in absolute terror thinking they won’t be allowed to graduate.
S1: So, Mark, here is the place where you are going to tell us that the Federalist Society, after doing a big think about what happened, has realized the error of its ways and that the students who initially brought this complaint against Nick Wallace have realized that gaming the Stanford system was not appropriate and that they will suffer consequences.
S4: I love that. I love that joke. Federalist Society students suffering consequences. That’s a good one. Yeah. No, that’s not going to happen. They are on the golden escalator up their career trajectory. They are going up and up and up. And all three of the Stanford Law Federalist Society officers who filed this complaint have clerkships lined up after law school with conservative judges, one with Timothy Timakova, which on the 10th Circuit, one with Jeff Sutton on the 6th Circuit, and one with Chad Radler, a Donald Trump appointee, also on the 6th Circuit. And there is no indication that they will lose these clerkships, no indication that they will suffer any career issues or problems because of the fact that they launched this ridiculous and successful scheme to terrify a fellow student for making fun of them.
S1: So just Mark, because you opened with free speech for me and not for the and I feel like we could both get that tattooed on us after the last few terms at the court. Is there some lesson in this, some way to think about we’ve talked so much on this show with so many people about this problem of people who want free speech but want to deny it to others. Is there any useful way to think about this, or is it simply that the golden escalator wins every time
S4: with with a six justice conservative majority, that the golden escalator probably wins every time? We’ll see how the cursing cheerleader case comes out. We’ll see what what this court does with future free speech cases. But I’m not optimistic because taking a step back from petty squabbles on campus, this court has granted so much more protection to the kind of speech that benefits Republicans specifically, you know, electioneering, campaign spending, donations, contributions, expenditures to try to elect Republican politicians at this Supreme Court. All that stuff gets maximum protection. I mean, a public financing law in Arizona that gave equal funds to publicly financed candidates as a privately financed candidates received got obliterated at the Supreme Court because the conservative justices said, well, you’re punishing people for giving money to candidates by simply publicly financing other candidates. And yet the court turns around. And in a case like the gerrymandering decision says, oh, yeah, sure, you know, politicians are basically analyzing voter rolls, looking at who is associating with the Democratic Party and speaking in support of the Democratic Party and punishing them by diluting their vote. But we don’t really care because that’s not our problem. And it happens to be mostly Republicans who are doing this to Democrats. There is a very uneven approach to freedom of speech at the Supreme Court. And we’re definitely seeing that play out on lower levels, not just in the courts of appeals and district courts, but also, it seems, on law school campuses.
S1: Mark Joseph Stern covers the courts, the Supreme Court, the law, justice, voting college, free speech, everything else for us here at Slate. Mark, as ever, it is a joy to be in conversation with you. Thank you.
S4: Always a pleasure. Even in the bleakest of times, Dolia.
S1: And that is a wrap for this episode of Amicus. Thank you so much for listening in. And thank you so very much for your letters and questions. You can keep in touch at Amicus, at Slate, Dotcom, or you can find us at Facebook dot com slash amicus podcast. Today’s show was produced by Sara Brittingham. We had research help from Daniel Maloof. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate podcasts. And we will be back with another episode of Amicus in two short weeks.