The “Failed Justice Breyer Countdown” Edition

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S1: This ad free podcast is part of your slate plus membership enjoy. Hello and welcome to the Slate political gabfest for Thursday, July 1st, the failed Justice Breyer Countdown Edition. David and John are not here. I don’t really know where they are and who cares? Because instead we have Jamelle Bouie, New York Times opinion columnist, and Ruth Marcus, Washington Post opinion columnist. Welcome, Jamelle and Ruth. Hello.

S2: Hello.

S1: We are going to have three topics today. We will talk about Biden’s infrastructure deal. Is it going to blow up? How are the planets aligning for or against it in Congress? And what are the threats to this partial one point two trillion dollar infrastructure agreement that Biden thinks he has bipartisan support for? Second topic, Bill Cosby released from jail this week, not because he did not rape anyone, but because the Pennsylvania Supreme Court said the Cosby testified in a civil suit to his own testament because he relied on a promise by the former district attorney that he would not be prosecuted. This is such a tricky, interesting case and I can’t wait to talk about it more. Third topic at the Supreme Court term ended this week with decisions on a law limiting voting rights in Arizona and on another law from California that requires the disclosure of major donors to nonprofit groups. Also, we will talk about whether or not Justice Breyer retired, which we don’t know the answer to yet because we’re taping before the court actually begins its session. We’ll come back later and finish so we can answer that question maybe. Plus we will have cocktail chatter. OK, so first topic about infrastructure. President Biden announced last week that he and a group of 10 bipartisan senators had hashed out a one point two trillion dollar deal on infrastructure. This would pay for roads and bridges and tunnels and broadband, the kind of traditional, more narrow definition of infrastructure. Not all the other stuff that progressive Democrats wanted to put in here about child care and home care and community college and climate change, according to Catherine Rampell in The Washington Post, almost right away. There have been clues that the White House is anxious about how this compromise is going to play with the progressive wing of the Democratic Party. One of the things going on here is this one point, two trillion dollar number includes hundreds of billions of dollars that were already expected to be spent on infrastructure, whereas the original two point twenty five trillion did not include the already scheduled spending. So the difference between those two numbers is kind of greater even than it appears. And then, of course, we had this kind of two step last week where Biden said, I’m not going to sign this Bipartisan partial bill unless we also get a reconciliation bill that has all the bigger stuff in it. And then the Republicans said, wait a second, that’s not what we agreed to. And yet Nancy Pelosi and other Democrats are insisting no reconciliation bill, no deal. So Jamelle, where do we stand with all this? What do you think the chances are for this smaller bill to pass? And will or won’t it be tied to the other larger reconciliation bill that the progressive Democrats want?

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S3: The shape of the process, I think rests entirely on what Joe Manchin, Joe Manchin standing in for centrist Democrats, what he wants. And he very clearly wants a serious attempt at a bipartisan process. And as long as that’s the case, that’s what we’re going to bear witness to. Republican leadership in the Senate basically seems to want to kill Biden’s agenda in its entirety and doesn’t want to give him a win in a big Bipartisan Bill would more or less be a win. The fact of the reconciliation bill existing and as far as I know, the fact of Joe Manchin being willing to work on a reconciliation bill may end up being the thing that pushed Republicans to support a bipartisan bill, if nothing else, because then they might have leverage to pressure some Democrats away from a reconciliation bill. Right. That they give them the Bipartisan win and then they demonize the partisan Bill in hopes of pushing at least one Democrat off of it.

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S1: So, Ruth, so I think Jamal’s premise here is that Joe Manchin holds the cards because if he doesn’t care about the Republicans signing on, then nobody else cares. Do you think that’s right? Or do the Republicans have more leverage here? Because I don’t know, maybe Biden cares or they are just going to see a way to wheel and deal and and have more effect in shaping this.

S2: I think that the answer is Joe Manchin holds the cards, but also there are other players who hold the cards as well. So progressives in the. Kraddick party have some cards. Mitch McConnell, as always, has some cards and Jamelle correctly identified his goal, which is to prevent a victory for Biden and Democrats at all costs. However, other Republicans have some cards. They have made a bunch of representations that are going to be understood as promises to their constituents that money is coming to fix their crumbling infrastructure. So this is a multilayered playable card game and anybody can hold them or fold them. And I think I’ll stop with this metaphor right now and switch to a different one. I thought of this a different metaphor, metaphor, warning. I reasoned backwards and I reasoned backwards, thinking about this as a kind of perils of Pauline moment for the legislative process. And even though it always looked like Pauline was going to get smushed by the railroad train in the end, in the last moments, something always happened to rescue her. And I think in the same sense here, this at least two piece legislation is going to be rescued in the end because it is either too big to fail or may be too small to fail, depending on your perspective on it. This is the one thing that we’ve seen year after year and time after time that Congress is able to do.

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S1: Here’s my devil’s advocate to your optimism, Ruth. Why isn’t the play here what it so often has been in the last several years, which is the most important goal, is to prevent a Democratic president from having any kind of bipartisan sheen on his presidency because you don’t want his approval ratings to go up. You don’t want to have that trailing you if you are a Republican candidate being primaried from the right or trying to prevent being primaried from the right. And so, sure, these Republican senators dangle out there the idea that they’re open to this bill, but then ultimately they back out because that’s the best thing for the party politically. Why isn’t that the answer here? And then I guess to answer my own question, is that a calculation that is not as important in twenty twenty one as opposed to twenty twenty three when the presidency is on the ballot? Jamelle, what do you think about those different calculations and timing?

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S3: So looking at the senators who are sort of on the page for possibly voting for this, I think it’s noteworthy that I’m not sure that any of them are actually up for reelection next year.

S2: And Jamelle some of them are retiring, right?

S3: Some of them are retiring. The pressure from the Republican primary electorate actually might be a little less than than you might imagine. I agree with Ruth on this. I think that a lot of them actually do just want to get something passed or at least, you know, five or six of them and maybe some number after that. But I do think there is a real desire to bring some money home to their states and to their districts. And that that probably is going to be the driving force here for keeping this thing together, the ability to be able to go go back to your state or go back to your district and say that you brought something, brought some significant money back.

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S1: So if you’re a member of the House Progressive Caucus, what you want is a bill of more trillions of dollars that addresses what you call the care economy, and that includes paid family leave and universal child care and Medicare expansion to lower eligibility for Medicare to the age of 60 and more medical coverage for like vision and dental and giving the government more power to negotiate prescription drug prices. So how important for the progressives is this kind of conceptual shift to redefining infrastructure? And I guess if I were them, I would fear that if the smaller bill passes, Joe Manchin is just going to like, say, that’s it, we did enough. That’s that’s real infrastructure. I’m not participating in this reconciliation bill. And then that’s the play.

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S2: Well, I think that helps explain the president’s I would say gaffe. He would say a minor misstatement, how these two measures are going to be sequenced and that the progressives fear of being betrayed by the Manchin right wing of the party helps explain why these two need to progress from the progressive point of view in tandem so that they’re not left out of the final deal and so their priorities aren’t left out of the final deal.

S1: Slate plus, members get benefits like zero ads on any Slate podcast. And for our Sleepless segment today, we’re going to talk about favorite recipes and food for the summer. I don’t want to put too much pressure on Jamelle, but I picked the Slate plus topic, especially for him because. I always love hearing about whatever you were cooking and making, and Ruth, that is no to you. I am excited for your ideas as well. Just bored of my own. Moving on to our second very meaty topic about which I am really torn. OK, this is going to be a kind of long description. Bill Cosby was released from prison this week not because he was declared innocent. Actually, I would argue the opposite, but because the prosecutor at the time of an original investigation into Cosby into the mid 2000s and and I should say an investigation into the sexual assault allegations against him at the time that prosecutor Bruce Castor decided not to prosecute Cosby because he thought there wasn’t enough evidence to convict him. Kastor put out a press release saying that he declined to prosecute. He also has since said that he told Cosby’s criminal lawyer at the time that because of his decision to decline to prosecute, Cosby would not be able to invoke his own right against self incrimination under the Fifth Amendment in order to spare himself from testifying or answering damning questions in a civil suit that one of the alleged victims of Cosby sexual assault, Andrea Constand, was at that point. At that point, Constand hadn’t yet sued. But Kastor is claiming that the civil suit was on the horizon and that effectively he was trying to open the door to full and complete Cosby testimony in the civil suit. With this decision to decline to prosecute, Constand did sue civilly and Cosby did testify and he did not plead the fifth. In one of those depositions, he admitted that he had given Quaaludes to other women he wanted to have sex with when the record of that civil suit was open in 2015. Fifteen, that deposition testimony was damning. And there was a new district attorney named Theresa German and she reopened the investigation of Cosby and decided to prosecute him. At that point, Bruce Castor, the former D.A., emailed this new D.A., his former first assistant, I should say, and said, hey, back when this was up to me, I specifically bound the Commonwealth, meaning Pennsylvania, that there would be no state prosecution. And so then at the beginning, before Cosby trial began, the trial judge heard testimony about whether Cosby’s deposition testimony should be suppressed, whether the jury should not be able to hear it because of this so-called agreement not to prosecute. The trial judge did not believe District Attorney Kastor found his testimony to be inconsistent and equivocal and said, look, there was no formal immunity order here and no formal agreement not to prosecute. This isn’t good enough. I’m going to go forward and I’m also going to let multiple women testify in this case, because if Cosby admitted under oath that he was giving Quaaludes to other women, then they should be able to show that this was part of his practice, giving drugs to women who he wanted to assault. And that testimony was allowed in. It was presumably part of why the jury convicted Cosby. So that is a long way of saying that. What’s at issue here is whether this promise that Bruce Castor says that he made to Cosby and his lawyers bound this future prosecutor and meant that because Cosby relied on this promise when he gave this damning deposition that the whole trial has to be thrown out. And indeed, the Pennsylvania Supreme Court ruled also by a vote to four to three that Cosby could not be retried. OK, I am so torn about this. It’s a really interesting set of legal questions. Let’s just set aside, you know, how we feel for a moment about the fact that Bill Cosby has served three years in prison and is now out. Can we first just dive into the like law professor part of this, Ruth Marcus? Like, what do we make of this decision not to prosecute? Was it an agreement? Does it matter that in Pennsylvania there is a statutory process for getting an order if you’re going to get immunity from prosecution and there was no such order in this case.

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S2: So, yes, you two can be a law professor. So exciting.

S1: And we can play one on the gun.

S2: Yes. So I think that this is the correct result, but the wrong remedy. And so I’m not terribly torn about it. It’s the correct result because whatever this was and by this I mean the decision, but not a formal decision done in the proper manner not to prosecute. It was something that Bill Cosby detrimentally relied on as a basis for not asserting his Fifth Amendment privilege and for providing this incredibly incriminating testimony. So I think it’s. Unfair to him and the sort of fundamental, equitable sense of the word, whatever the correct understanding is, of the status of what this group of a lawyer did. It is the right result to not allow the information. That was it’s not a question of whether the promise to prosecute Cosby or not prosecute Cosby can be enforced. It’s a question of whether the fruits of that promise, which is the incriminating information, can be used against Cosby and that leads to the wrong result. The correct remedy would be to toss out this conviction and to have Cosby try it again. If the Commonwealth of Pennsylvania wants to do that without the fruits of the incriminating testimony that he provided, I can’t see why you would bother Cosby from being tried again.

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S1: Jamelle, what do you think? Should Cosby be retried and does that seem important in the interests of justice here? I mean, one could argue that three years in prison for someone in their 80s is a significant punishment. I know that many people will be offended by that notion given how long sentences tend to be in the United States. But I’m just going to put that out there.

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S3: This is this is a situation where my sense that sentences are too long and that three years is a considerable amount of time for an elderly man kind of is a balancing that against the fact that I think the public and common understanding of this is a Cosby of some of it exonerated. Right. That somehow him being released from prison is a statement about his guilt or lack thereof. Cosby has not been exonerated of any crimes. The judgment that he cannot be retried seems to be it is it’s the wrong remedy. It seems to be overstepping, kind of like going beyond what the actual problem here was. Evidence was used. This should not have been used. And under our legal system, that means the conviction should be tossed. But be not try it again. Seems like a Favorita rich guy to me. Favouritism towards someone with the considerable amount of still a considerable amount of social

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S2: power for a rich guy. Cosby had some really the bad lawyering isn’t just on the part of the former prosecutor. The bad lawyering thing is on the part of Cosby lawyers who didn’t make sure when they let him go ahead and testify in the civil suit that he that all the dots, they didn’t do lawyer work and make sure that he couldn’t be prosecuted. I would try it again because the scope of his bad acts was so enormous. You can’t just turn your back on this no matter his age.

S1: I worry that the lesson people are going to take from this is like, you know, we have different kinds of justice for people based on their wealth and social power. Here’s what I’m hung up on. Like on the one hand, I am all for holding prosecutors to their promises and erring on the side of if a defendant relies on a prosecutor’s promise to their detriment, like we should care about the fundamental fairness at issue here. And that’s exactly what the Pennsylvania Supreme Court said. On the other hand, I am hung up on the fact that there was no actual immunity order signed and sealed here, because I kind of don’t believe Bruce Castor, nor did the trial judge when he says that it was also clear. I feel like he’s kind of trying to have it both ways. And it matters to me at least, that in 2015, when he was giving testimony about this, he was trying to run for reelection as to regain his old seat as D.A. And it wouldn’t be good for him to have this prosecution that he declined to bring in full swing. Right. Having it headed off at the pass was better for him politically. And I just feel like that’s a kind of background here that feels like it’s important. I was much more on your side of this, Ruth. And then I read this thread on Twitter by Carrie Goldberg, who is a very fierce lawyer who represents lots of victims of sexual assault. And she says, I think, like in line with Jamelle concern, this was an unnecessary buddy buddy deal given to America’s favorite dad. And then she says, look, we have an actual Pennsylvania law that formalizes immunity agreements. And instead we got this bozo lawyer who just didn’t prosecute in 2005, issued a press release and then claimed that that was binding on everyone in the future. That’s what I’m stuck on. It’s clear that Castor said in the moment, I’m not prosecuting this guy. There is nothing in this press release that he issued that says that’s binding on future prosecutors, binding on the Commonwealth. And Cosby’s lawyers knew or certainly should have known if they were competent counsel, that that’s what it takes to really protect your client. The notion that there are no. Now, getting to rely on this like Lucy Goosey secret agreement, that kind of bugs me and it does feel like 10,

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S2: why did they let him testify? That’s the easy part. Yes. And so I usually get the constable blundered. The defense lawyers wondered, but is it fair under those circumstances, this all should have been sorted out, by the way, well, before we had to now go through this afterwards, before I do want to raise Phylicia Rashad. America’s mom tweeted yesterday that a terrible miscarriage of justice had finally been righted. Those are in her exact words, but she talked about pretty

S1: close to

S2: a miscarriage of justice. And that is, I understand when it’s your friend that you might be worked up. But there was the miscarriage of justice here is against Bill Cosby’s victims, period. End of sentence.

S1: Yeah. So I’m glad you brought up Phylicia Rashad. She, of course, played Mrs. Cosby for many years on The Cosby Show. She is now the new dean of Howard University College of Fine Arts. And in response to the tweet you mentioned, Ruth, the writer said Jones said yesterday, I’m sure Phylicia Rashad, being the new dean of Howard’s College of Fine Arts, will have absolutely no bearing whatsoever on how that program handles student claims of sexual harassment and assault. Yup, nothing to see here, folks. Jamelle, what do you think about this? Can Rashad still do her job? What should Howard do about this tweet?

S3: I think that that tweet raises real questions about whether Rashad can do her job, because it’s not it’s not as if there are no longer any signs of sexual assault no longer happens in Hollywood or showbusiness. Right. It’s not as if Rashad will be faced with allegations of sexual assault from students. If that tweet is, you know, indicative of her attitudes towards this kind of thing, which to me seems sort of like a willingness to overlook or discount strong evidence in favor of personal friendship, then if I you know, if I were in a leadership position at Howard responsible for hiring and dismissing faculty, I would take a second look at my hiring of Phylicia Rashad. No matter how beloved she might be, it really must be emphasized that the evidence against Cosby is very, very strong. And in addition to his own his own testimony, the evidence is just it’s it’s it’s hard to dispute that he was a serial rapist, if you can look past that, that that the strength of that evidence and I’m not sure you should be in a position where students are coming to you for really any reason.

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S1: Russia tried to clean this up yesterday. She went back on Twitter. She said, I fully support survivors of sexual assault coming forward. Howard said that her initial tweet lacked sensitivity toward survivors of sexual assault. Presumably, everyone on that end of the issue is hoping that’s enough to hold on to her job and prevent a big wave of protest. I mean, what do you think here? Like, this is another glaring example of how much trouble public figures get into on Twitter with these like not very presumably thought through kind of dashed off emotional, impassioned responses. Does this mean that, you know, we see Rashad as someone who’s just really insensitive to these issues in a way that should really concern students or just make them lose faith in her.

S2: So, you know, you’re torn about the outcome in the case. I’m a little bit torn about what should be the outcome on this very ill thought through tweet. If you this was one of those, you should have thought about it, put it in a drawer, ask a friend something before you send it. On the one hand, I think that

S1: you imagine the PR person at Howard who is like staring at their computer screen with their job, are like, oh, come on, no, no,

S2: no. You want to have robust free expression in academic community, above all. And so ousting her feels like an uncomfortable outcome. At the same time, if you the feelings on college campuses are understandably so raw when it comes to issues of taking sexual assault seriously, that that I do think Jamelle is correct when he says there’s a serious question about whether she can remain as the person. Who sort of oversees the safety of her students and the ability of her students to get redress if something terrible happens to them.

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S1: To blockbuster end of the term Supreme Court decisions in the first case, Brockovich versus Democratic National Committee, the Supreme Court has ruled the two provisions of Arizona’s Voting rules that minority voters said violated their rights are allowed to stand under the Voting Rights Act. And so this is a decision that is bad for people who want expansive voting rights and good for people who want to limit voting in the name of preventing fraud. So let’s talk about that decision and then we’ll get to the next one, which is about disclosure requirements for nonprofit organizations in California. But let’s start with Aaronovitch, which I think is going to get a ton of attention today. Ruth, how big a deal is this decision? These are pretty minor like changes to Arizona’s voting rules, right? I mean, we’re talking about whether you can have your ballot counted if you vote outside of your precinct by accident, and also whether the state can ban people from collecting each other’s ballots or kind of mostly ban so on their face. These are not rules that affect a ton of voters. Why is there so much at stake here

S2: on the rules themselves, the one that affects more voters in Arizona? That I think there’s really a good argument against what’s Qajar if we refer to as ballot harvesting people, collecting the votes? This is a particular issue for Native Americans in Arizona because the ability to get to polling places or to get even to mailing places is diminished. And so the capacity to collect votes and deliver them is significant. But as you suggest, Emily, the importance of this case is not the particular provisions that have been struck down. In fact, it was really a strategic mistake in many election law. Scholars argue this for

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S1: for the Democrats to have sued at all over this provision. Right. Right.

S2: But the important thing is what the court does more broadly to Section two of the Voting Rights Act. And to put this in perspective for people, listeners will recall that in 2013, the court eviscerated Section five of the Voting Rights Act, the preclearance requirements for states with a history of localities, with a history of discrimination that left Section two, which is after the fact when states enact laws and regulations that have the effect or intent of discriminating against minority voters or limiting minority voters access, can you then go to court and challenge them after the fact? So Section two was what was left that in fact, the chief justice told us when he eviscerated Section five. Oh, but don’t worry. You guys still have Section two. Lucky you. Turns out not correct. This is a very cramped reading of Section two of the Voting Rights Act. And I’m just going to read a few sentences from Justice Kagan and the two other liberals who dissented strenuously wherever it can. The majority gives a cramped reading to broad language. What is tragic here is that the court has yet again rewritten in order to weaken a statute that stands as a monument to America’s greatness and protects against its basest impulses. Efforts to suppress the minority vote continue. No one would notice know this from reading the majority opinion. So this remaining tool has been eviscerated and it’s going to take some slower reading than we’ve been able to do to understand precisely how serious this is. But when Justice Kagan turns up the volume like this, I think people should listen.

S1: Yeah, Justice Kagan is clearly writing for the ages here. I also was struck by some language and Justice Alito’s majority opinion where he says the strength of the state interests, such as the strong and entirely legitimate state interest in preventing election fraud, is an important factor for judging whether a voting rights law is permissible or not. A voting rights restriction under the Voting Rights Act. You know, Jamelle, we hear a lot from Republicans about the threat of voting fraud. We see much less evidence for it. This opinion says, hey, state, you don’t have to wait for evidence of voting fraud inside your state to try to prevent it. And I just wondering if what you’re seeing here is an open invitation to Republican legislators to in the name of preventing voting fraud, pass more voting restrictions of the kind we’re already seeing in states like Georgia and Arizona.

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S3: I don’t think those state legislatures necessarily need the invitation. But this is this is you know, it’s like a welcome, welcome mat in addition to the invitation that. Sort of really inviting them seriously to pursue this. I said this on Twitter after the ruling came down. What’s striking to me about this in the oven and Shelby County, similarly, is how both rulings do seem to depend on this idea of the 15th Amendment. Doesn’t really count. Right. The 15th Amendment says very clearly that Congress should enforce the prohibition against racial discrimination in voting by any means, that the literal language of any means necessary, but by all appropriate legislation. That, to me, would say that when you’re reading when you’re considering statutes like the one in Arizona, that you should take a broad reading of the Voting Rights Act. You should ask yourself if this came up to the Congress that reauthorized the Voting Rights Act or if it came up to Congress. Now, with this exceed the broad mandate to tackle racial discrimination in voting that the Constitution gives the Congress that? I don’t think it does. And one of the things that troubles me so much about these rulings is the fact that it’s not as if the Voting Rights Act was passed in 65 and left dormant, that it was reauthorized again and again in the last reauthorization in 2006 was by pretty much unanimous vote of Congress. So what we’ve seen over these last 15 years and of course, the president signed the reauthorization. So we’ve seen over the last 15 years is in 2013, five justices out of nine deciding that they knew better than a unanimous vote of Congress as to whether the Voting, whether Section five of the Voting Rights Act is constitutional and in this case, six justices, three of whom were nominated by a president who did not win a majority of the vote and confirmed by a Senate that at the time represented about 46 percent of all Americans. Right. So a minority president and a minority Senate have just weakened a provision of a law reauthorized by an almost unanimous Congress and signed by a majority president. It’s so obvious. It’s to me, it runs so counter to the idea that this is, in any case, a representative democracy like set aside, you know, the kind of broad, expansive democracy, just the idea that we’re not, in Lincoln’s words, governed by, like the robe tribunals. This is a violation of that. And I find it on just like a very basic lowercase R Republican level offensive that this court essentially disregards what I what I’m going to frame as the the constitutional views of the people’s elected representatives.

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S1: Yeah. And what’s I think particularly striking about this, when we start watching this move to the right that the Supreme Court is making, is that when it affects the laws of our Voting, it makes it all the more an entrenchment of minority rule. Right. If this minority created by a minority is then changing, affecting the rules of the game in a way that makes it impossible or much harder for the majority to reassert itself, that’s when you really start to have this kind of, you know, lurch away from majority representation, which I think is a real danger right now in our system for these structural reasons. All right. Let’s move on to the second case this morning. Americans for Prosperity versus Bonta. This one is about a requirement in California law that charities file with California. A copy of an IRS form that identifies major donors seems kind of technical. Federal law requires the IRS to get this information, but then to keep the form confidential. California wanted its own disclosure. We have a six to three decision, the majority opinion by Chief Justice Roberts. And you know, the real question here is what the implications of this ruling are for campaign finance disclosure laws. I don’t think anyone cares all that much about what California is requiring of its nonprofits. But I feel like in this ruling from my quick look at it, that there just seemed to be pretty broad implications for making it harder for states, for Congress to require disclosure for election spending by donors, which just seems like a really important pillar of our democracy right now that is in danger to Ruth. What’s your take on this?

S2: Agreed. This case has always been important for what it might augur for campaign finance disclosure. And it’s really important to point out that the conservative court, the conservative justices in the majority or not in the majority, have always pointed to disclosure as a kind of constitutional given. Disclosure was important, that disclosure was the best disinfectant. That disclosure could solve a lot of problems. There was important language about the importance of disclosure, even in Citizens United. But now and Justice Thomas has been beating the drums on this. Now there is an assault which kind of mirrors the assault that congressional Republicans have done. Mitch McConnell, for example, was once very much pro disclosure. Now he has some issues with that, to put it mildly. And now this court seems to be. Opening the door to challenges to campaign finance disclosure requirements, it’s very much parallel to the voting rights question in the sense that they’ve narrowed the ability at eviscerating Section five and now they’re going after Section two. Here in the campaign finance world, they narrowed the ability to pass effective campaign finance regulation. Now they seem to be at least eyeing the possibility we shouldn’t go too far here, eying the possibility of making it impossible to pass effective disclosure rules. Keep an eye on that for the future. These six three majorities are the future that we have and we’re going to see more of them.

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S1: So Jamelle, the conservative majority is rationale here is that if you require disclosure for donors, you are going to open them up to harassment. And this is a concern that goes back to the 1960s when the NAACP at the time sued in a case where they were worried about exactly this. And what we saw in the suit involving the California law was that nonprofit organizations from all over the political spectrum came in against this law. What do you think about this interest against preventing harassment when you stack it up against the issue of people understanding who is influencing decision making? And now I’m really casting forward to the election law, you know, next case, right, where this question of whether donors are harassed gets, I think, really pitted against whether voters understand who is buying the ads that are seeking to influence their choices.

S3: Yeah, I suppose this is one of those delicate balancing act, because as for as much as I am sympathetic to the fear of harassment and how this can be quite serious, it seems like there should be a middle ground between respecting that fear of harassment, but also not essentially precluding the people’s elected representatives from requiring nonprofits to let voters know who is funding them. At a certain point, democratic government or democratic government cannot work when the money is basically opaque, when you have no idea who is spending what. I mean, I think I think the fallout from Citizens United V. in the year since kind of proves his point. It’s naive to think that getting disclosure requirements, getting campaign finance rules is going to have a benign effect, that what it does is it opens up the door to not just ever more floods of money, but floods of unaccountable money and schemes, essentially to mislead the public in pretty serious ways without really any recourse from the public and to kind of tie these two rulings together. What troubles me the most is it is the court again tying the hands of elected representatives rather than the state level or the federal level to address concerns that should well be within the scope of representative government to to address.

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S1: Yeah, I was quickly looking on Twitter and I saw Ari Berman, who wrote a terrific book about voting rights in their history and writes for Mother Jones. He was tweeting this morning that the conservative majority of the court is quite literally making it easier to buy an election and harder to vote in one. That’s just an interesting way of tying these two cases together. I was also noticing the different ways in which the court treated the state’s interest in preventing fraud in these two cases. So you see Alito being super deferential to the state’s interest in preventing voting fraud, which we know is very unusual. And then you see Chief Justice Roberts really sweep aside the state’s interest in preventing fraud among nonprofit organizations, which there is more evidence actually happens, and especially in the election context. Seems like you would really want to know and make sure that people are adhering to the rules. And I think all of this goes back to the idea that if you treat money is speech, then you are really deferring to people’s efforts to influence elections through speech in a way that we’re now at at the kind of precipice of we don’t even really get to know who they are, even if states get their acts together to make sure that we should know who they are. Even if Congress were to pass stronger disclosure laws, it’s not clear after this decision that those laws are going to stand. And that’s a dark place that we land with. Our dark money pouring down upon us, last issue to take up today, it does not appear, at least at the time of our taping, that Justice Stephen Breyer is planning to retire at the end of this term. Ruth, what does this mean? Where is

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S2: David Plotz when he

S1: is crying? Wherever he is, he is in mourning?

S2: Well, I’m crying, too, because I somewhat reluctantly went for Plotts on this and wrote a column urging Justice Breyer to retire. And Justice Breyer seemed to think that not retiring would make the court look less political. If I could read his tea leaves, I think that it opens up the prospect of having the court if things go badly, maybe even more within the political maelstrom that we’re living in. And so I. I am disappointed in this outcome. Jamelle.

S3: Now, I agree completely caring about politicizing the court is another way of saying you care about the legitimacy of the court. And I would really urge Justice Breyer and those who are sympathetic to him to consider the impact on the legitimacy of the court. If it is a seven two court or a six two court putting out conservative rulings that are more or less sort of eviscerating a law passed by duly elected majorities of Congress and aggressive seven, two or six to Republican majority on the court is not going to appear to be legitimate to many Americans. And I think I would be inclined to say that that’s that they would be right about that.

S1: So I want to say something that I hope is not partisan, though perhaps it will still be read that way. This is just such an act of hubris. These people, they stay on the court for so long. This is someone who’s been there since the mid 90s. They’re all replaceable, all of them. It is a really long time for one person to hold onto this much power. And I have to say, like, I’m surprised I just thought of Justice Breyer in a different way and this veneer that this is somehow the less political way to frame the court. Like, I just don’t know who that convinces. Who thinks that a Republican appointed justice in the future or some, you know, Hail Mary candidate with Biden and a Republican Senate is going to be the same as the nominee who Briden would pick. Now, like, no, that’s not true. And Justice Breyer knows that now he may be hoping to sneak in under the wire with his retirement next May, but that is going to be a very political act at the height of the election season before the 2022 election. So I just.

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S3: Yeah, can I can I toss in one last thought just on this exact and this exact point when the framers devised lifetime judicial appointments, No. One, imagine someone serving for longer than 15 years, for 20 years, 25, 30, 35, 40 year terms on the Supreme Court was not really intended. And I think people should really question whether we want them not for partisan reasons, but for the simple idea that should a president should should be dead hand of a former president be able to guide American politics for more than a generation after they’re out of office? Is that compatible with what we think? Representative government is not the people’s representatives on regular intervals making decisions about laws and making decisions about how the society is governed. But a singular individual acting because a power granted by individuals 40 years past 30 years pass being able to shape how we live today with no Democratic recourse. Right. I think we should be uncomfortable with that. If nothing else, we should be uncomfortable with that.

S1: Let’s move to cocktail chatter Jamelle as you and your new baby and your older child and maybe your wife get to relax this weekend, because I’m sure that having a toddler and a baby is just the recipe for relaxation. Certainly you will need a beer whether you get one or not. What will you be chattering about?

S3: I’ll be chattering about two things, kind of both reflecting the current state of my life right now. The first is that I’m watching a lot of movies, which is kind of typical. But what’s even worse is I’ve been on parental leave and I watched a really terrific film from, I think 98 to Cleveland. First big role. It’s a movie called Croupier, where he plays a casino worker and who is also a novelist who gets embroiled in a crime scheme. It is hyper stylized. A pleasure to watch. Clive Owen is incredibly charismatic in it. The minute he puts on a tuxedo, you’re like, oh, I get why people thought this guy could be James Bond because he looks like it. Just a really wonderful film. It’s on Netflix. It’s the perfect what I call parental length movie, which is it’s 90 minutes. So you’re in and out. You don’t got a you don’t got a post, you’re going to watch for a two day over two days or anything, just watch it one night. The other thing, because this is a cocktail chatter in both in quarantine and just sort of generally people have been drinking a bit more than they usually do. I know I enjoy a beer, but I don’t necessarily enjoy all the calories of a beer until I recently was clued in on a company called Athletic Brewing Company that makes non-alcoholic beers. And they taste incredible. They taste more or less like a craft beer, except they don’t have very little alcohol like point three percent, pretty low calorie and low carb. And I feel like when I say this out loud, it sounds very silly, like low carb, not beer beer, but it’s super tasty, super refreshing, especially on a hot day. So if you can get your hands on an athletic brewing company, non-alcoholic beer and watch Croupier, you’ll be in for a good time.

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S1: Awesome. I love it. Double cocktail chatter Ruth out of the Mountain West. Top that.

S2: So I’m going to try. I will be having my cocktails. Yes. From Wyoming, looking at the glorious Tetons and enjoying the cool mountain air. And my cocktail chatter is about a stop that we made. Yes. Driving from D.C. to Jackson Hole, Wyoming, because we can’t we won’t put the dog in a plane for fear of traumatizing the dog. So we took this quite circuitous route which took us through Oklahoma City. And we got to stop at and tour the very, very powerful and remarkably relevant Oklahoma City bombing memorial and museum. I remember this bombing so well because I was on bed rest with my oldest child and my husband called and said, you have to turn on CNN because something terrible has happened. So that was twenty six years ago. And this museum brings home the horror of that moment in the most dramatic way. There’s I thought the most compelling part was audio that they had of the Oklahoma City Water Board Authority meeting that was going on in this horrible moment between nine 01 and nine 03, like the bomb exploded at nine 02. So the water board meeting was going on. And then you hear the explosion and it is riveting and horrible. And I realized as we were touring this museum that of course, my children who were not born then really have no recollection of our understanding of this event, which was such a searing event in American history and is so resonant today. So I’m going to be chattering to them about that and about how next time when they get to drive the dog, they should stop in Oklahoma City.

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S1: Well, that seems very fitting for the July 4th weekend, I think. And I was also thinking about July 4th for my chatter. So I published a story this week in the New York Times magazine about the exoneration of a man named Utako Brierly. And I think I actually told gabfests listeners about this exoneration when it happened in March. I’ve now gotten to unfurl the whole story of what happened to Utako, including my own involvement. I learned about this case two years ago when Utako wrote me a letter from prison asking for help, the only lawyer I could find to take his case at the time, which was pretty hopeless with my sister Laura. So this turned into a kind of first person piece in some ways about our involvement in Utica’s case. And I have been very nervous about that. It’s like a very untraditional thing for a journalist to do. Happy to talk about the ins and outs of it. But mostly I just want people to understand how crushingly ordinary Utica’s wrongful conviction was, how little anybody, almost anybody cared at every step of the process about whether he was actually guilty. I will be very grateful if gabfests listeners check it out online or in print this weekend. And I have a second Chatur. That’s that’s not about me. The movie my octopus teacher won an Oscar. So I feel like it’s OK for me to rant about the fact that I hated it. I thought it was totally cheesy and like fake and the narrator’s like kind of claimed like dilemmas about his own life just seemed totally like manufactured to me. And this week I was talking to someone about the octopus in the movie, and she told me that various people who study octopus have expressed real doubts about whether this could really have been the same octopus the whole time. Like maybe that’s not really feasible. Or at all probable that this filmmaker would have encountered the very same octopus? I don’t really know, maybe it’s a little irresponsible for me to put this debunking out there because I know nothing about octopus science. However, it confirmed my own bias is that there was just something suspicious about this movie. So I put that out there for gabfests listeners to make what they will with. And if I’m wrong and there is hard proof that this is the same octopus throughout, I would love to hear it. I still will not like the movie. And now we have a very special listener chatter this week.

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S4: Hi, this is David Plotz in Washington, D.C. I love the show. Love the show. My listener chatter this week. I thought everyone’s too mean about former Justice Breyer’s gaffe this week. He was being cute. He wrote a letter, not an email, but a real paper letter to Dan Levy, the creator of the TV show Schitt’s Creek, saying that Schitt’s Creek was his favorite show and asking if now that he’s off the court, he could have a cameo as the town judge in the next season of the show. His gaffe, of course, is that Schitt’s Creek finished its run in twenty twenty, which Breyer hadn’t realized, maybe because he was so busy on the court last year. But someone in his office leaked Breyer email to The Hollywood Reporter where whereupon the Twitter verse ran riot with mockery. I just thought it was unfair to Breyer. Thanks, Mubako.

S1: OK, David, your wishful thinking is appreciated. All right, that’s our show for today. The gab fest is produced by Jocelyn Frank. A researcher is Bridgette Dunlap. Our managing producer is June Thomas. Gabe Roth is the editorial director for Slate Audio. And Alicia Montgomery is the executive producer of podcast. I’m Emily Bazelon. And for Jamelle Bouie and Ruth Marcus, thanks for listening. We will be back with John and David, I think, or at least someone will be back next week. Hi, Sleepless. How are you doing? I will pretend I’m David and ask you how your week went. I always like that. David does that, OK? This week we are going to talk about summer food and recipes. Jamelle, could you please take it away for us?

S3: Sure thing. So I’ve been on this show long enough or frequently enough that people, I think know that I really like to cook and I really enjoy food. The summer is because the producers are good, are typically the months when I really kind of dive in to Mediterranean food and Middle Eastern food. And so my editor at The New York Times actually purchased me a copy of Cloudera Rodin’s book on Middle Eastern cooking. And I’ve been kind of making my way through that. It’s a wonderful book. It’s it’s such an anthropological study of Middle Eastern food and the history of Middle Eastern food. So there’s a recipe book and it’s terrific. The last thing I made out of it, the two things I make out of it most recently were a couscous salad, which is, you know, couscous, a lot of herbs, cucumber, tomato sauce and feta, some olive. Just kind of a nice thing with a lemon lemon dressing and then some Turkish style kebabs. So that’s sort of that’s been the focus of my cooking this summer. But let me say that in addition to doing lots of cooking and also doing lots of not cooking and eating things straight out of cans, and specifically what I’m eating today above Catherine are conserva sort of just tinned fish from Spain and Portugal and via the coast of the United States. When I was a kid, I did not like tuna sandwiches. I thought they were gross. I still think they’re pretty gross. I’ve always associated tinned fish, canned fish, which are very low quality fish. But very recently I was clued in to the fact that there’s this whole world of tinned fish that is very high quality and very delicious. And so we have I live in Charlottesville, Virginia, and down the street from me is a store that has a pretty wide selection. So I’ve been kind of slowly making my way through their stock. And I’ve gotten to the point where after ordering online now, but let me say that this has been a terrific choice and big life and proofer for me. I have had a lot of fun trying lots of different fishes. I have developed a taste for mackerel and small sardines and the variety is really amazing. And again, this is a very easy kind of meal. I can make some pickled red onions, have some crackers and some sardines or some mackerel or some smoked mussels. And that is a quick and delicious, delicious lunch. So let me addition to saying that people should find a good Mediterranean Cookbook and kind of go at it our Middle Eastern Cookbook and go at it, explore tinned fish. Most grocery stores have some pretty good stuff there. You’ll find some Patagonia. The clothing company also has this whole food section. They make a really great variety of products. There’s Kohl’s fischeri, which has a great smoked trout. You might be able to find some ortigas, which is a really phenomenal brand. And there’s Hardeen to really tasty Matti’s, which is a sort of one of the more it’s one of the more affordable brands and also very widely available has great tuna packed in olive oil. That’s really tasty. So just go at it. These are great little treats and there are a lot of fun and I’m glad I discovered them.

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S1: Oh my God, I love that. And it reminds me of this recipe I have from my friend Rachel Gross tuna or mackerel or sardines like tinned fish with sauteed spinach in oil and then add at the end chopped parsley, lemon and caper and you can serve it with pasta. So I’m turning your idea into a dinner meal. So good. Ruth, give us some more ideas.

S2: Well, in the Marcus household, where we all spend a lot of time in the summer cooking together, there will be a lot of Mediterranean cooking. There will be, I predict, no tinned fish, but there will be smoked fish because the place we’re staying acquired and thank you very much to our landlords, a wood pellet grill. And so last summer, I was getting repeated deliveries of wood pellets because I was smoking up a storm of when I was on the smoked fish front, which led me to learn a new word, which is pellicular. Pellicular is I bet Jamelle knows this, the kind of hard crust that forms on a smoked fish when you leave it in the refrigerator overnight uncovered. So it forms this crust and then you smoke it obviously slowly the next day. So I will be working on my smoked fish skills. I did a lot of salmon last summer, but I’m going to be ridging further out to trout and other things. Maybe not octopus, though, because I whatever. I haven’t watched the movie yet. Now maybe I won’t Emily, but I’m not. Eating octopus anymore more because it makes me feel guilty, but smoked mussels, so good Jamelle, but then I’m going to be expanding my smoking horizons to the meats. So brisket and pork shoulder and pork belly. So not everybody in our household eats meat, but those that do are going to. Somebody skidded up a storm. And yes, I think you might have just heard somebody who the dog might hit some brisket along the way.

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S1: I just want to add one more thing, which is my husband for the first time really planted a garden this year. He built raised beds and found us the one sunny spot in our backyard and has been having a great time and done an amazing job planting all these things like peas and tomatoes, which are growing beautifully and radishes and herbs. But we have one question, which is about our lettuce. So Paul planted a whole bunch of lettuce. It’s a little more bitter, like it’s hot. I’m happy to have bitter lettuce is like part of lettuce, but it would be better if we didn’t have all that or lettuce. And I would love some suggestions about, like, nice mild butter, lettuce or other kinds of lettuce. What is the species of lettuce kinds of lettuce that we could plant and also some tips like should we be cutting them a lot? We were hanging out with a friend who seemed to be like trimming her lettuce regularly instead of letting it grow up. And it occurred to us that maybe that would also improve the taste of the lettuce. I put myself out there as the non farmer in the group. OUP Jocelyn is already sending a tip, steady watering. If it gets dried out at any time, it can get better. I think we’ve been watering it, so I feel like that’s a great tip. But we could use others.

S3: I’m not I’m not the gardener at the house. My wife has our garden in the race, said to me herbs and everything. As best as I can tell it is the steady watering. I think you’re trimming like picking the lettuce earlier. Younger lettuce can be less bitter. I don’t really know a ton about lettuce varieties. I’m very much sort of give me stuff to cook and I’ll figure it out. But growing the stuff I buy, I don’t touch that. I don’t touch the garden.

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S1: That’s a good division of labor.

S2: And I’d like to say that this conversation is really troubling me because I did plant in the raised beds and including lettuce that look beautiful when I last looked at it the other day. And now we have decamped for parts west. And so whatever happens to the lettuce, it’s going to probably be eaten by the bunnies.

S1: But I should like, invite someone over Jamelle.

S2: I know I’m going to send my brother.

S1: All right. Good. Thank you. That is a great place to end, I think. Thank you, Ruth and Jamelle for those fabulous food ideas. And thank you plus listeners for listening. Will be back next week.