Supreme Injustice

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S1: This is a word, a podcast from Slate, I’m your host, Jason Johnson. The Supreme Court is supposed to be a co-equal branch of the government, but many of the court’s critics say it’s out of control, doing the bidding of political conservatives and shredding the rights of vulnerable Americans.

S2: So its legitimacy is the only currency that it has. And the Conservatives are burning it.

S1: Political analyst Elie Mystal on what’s ahead this session. The Supreme Court on a word with me. Jason Johnson. Stay tuned. Welcome to a World, a podcast about race and politics and everything else. I’m your host, Jason Johnson. Supreme Court is back in session and public opinion of the justices has never been lower. According to a Marquette University poll, fewer than half of Americans now approve of the court’s performance. Now, many of the justices have gone on record to defend their reputations. Amy Coney Barrett spoke out against accusations that the court is packed with partisan hacks. At an event for Senate Minority Leader Mitch McConnell, that’s ironic, while liberal Justice Stephen Breyer is hoping to remind people of the court’s mission

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S2: when the judge puts on that robe. He is not a junior league politician. But having said that, there are connections with politics. And so it’s a pretty hard message to get across.

S1: But does anyone who doesn’t serve on the court actually buy the vision that they’re impartial anymore? And how could this court reshape American lives in the upcoming session? Joining us to talk about it is Elie Mystal. He’s an MSNBC analyst and the justice correspondent for the nation. His upcoming book is entitled Allow Me to Retort a Black Guy’s Guide to the Constitution and Elie Mystal joins us now.

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S2: Hey, Jason, how are you doing, Sensei? What does it

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S1: mean that right now, large numbers of Americans don’t think the court is representing them? What does it mean that people don’t trust the integrity of the decisions? What does that actually mean in a practical sense, to have the highest court in the land be an institution? People question.

S2: The Supreme Court has no army, it has no money, it has no power to tax or spend. That’s not me saying that. That is Alexander Hamilton saying that in The Federalist Papers, right? That was Alexander Hamilton spitting bars about how weak the Supreme Court is. The only reason why it has any power at all is because we left it at the point where the people believe that the Supreme Court is illegitimate, at the point where the people believes that its decisions no longer carry water. Well, what are it going to do again? Can’t fight, can’t take your money. So its legitimacy is the only currency that it has. And the Conservatives are burning it, and they’re taking their only legitimacy currency and throwing it out the window in their rush and excitement to achieve victory in the culture wars.

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S1: This is the thing about that. You know, we’re both old enough to remember the 2000 election, right? That was the situation where the Supreme Court and this happened in our lifetimes. The Supreme Court makes a ruling that pretty much dumped on 50 percent of the country. I mean, there’s a legitimate split 50 percent of the country wanted Al Gore, 50 percent of the country thought that they wanted George Bush, George W. Bush and the Supreme Court said, Yeah, so what? And of course, there were tons of conflicts of interest on the part of conservative justices at the time. Even after that, public confidence with the court did not drop as far as we have it right now. What is the difference between what happened 20 years ago, which is an election that people forget? You know, they were actively going get something that people have participated in voluntarily versus what they are doing right now? What’s the difference in why people feel so much worse about the institution?

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S2: A couple of reasons. First of all, I was first year law school when Bush v. Gore dropped, right? So my entire legal kind of jury is shaped by that decision, right? Despite the dripping hypocrisy of the Conservatives on that day, with Sandra Day O’Connor basically deciding that she didn’t want Al Gore to be president and Antonin Scalia going against his entire ideological philosophy to make George W. Bush press despite all of that. The key thing that the court had in 2000 that it doesn’t have in 2021 is the knowledge that the people who were on the court got their. I might have spent my entire life disagreeing with Antonin Scalia, but I cannot disagree that he legitimately, through the regular process, was placed on the Supreme Court and in the position of Judge. Same with Sandra Day O’Connor. Same with all five conservatives who voted for for George W. Bush. George W. Bush might have been an illegitimate president, but I could not say that the five justices that made him so were illegitimate justices. We all saw how Neil Gorsuch really was happy to take that boon from Mitch McConnell. We all saw what happened with any Coney Barrett. Look, you can have Gorsuch or Barrett, but you can’t have both, right? Like you can. You can stick your flag in the sand that you can’t have a confirmed justice during election year. And so that’s how Gorsuch gets on. But then you can’t have Barrett, or you can flip it whenever the justices come up. You got to put him on. Which means you can have Barrett, but you can’t have Gorsuch, right? And then they put an alleged attempted rapist on the court in between,

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S1: you know, the Kavanaugh hearings rivaled the O.J. Simpson trial as far as the ratings and level of attention that people paid. So yes, you’ve got two illegitimate process judges sandwiching a guy whose personal and financial integrity is so bad that there’s only in the Trump administration could have you ever gotten a job.

S2: Right. And it’s this guy, it’s this man he gets to be now, according to the Supreme Court, the fifth vote to decide whether or not women have the right to choose. You’re literally putting a person who’s been accused of forcing is well on a teenage girl in charge of forcing teenage girls to carry pregnancies to term against their will. That is monstrous, that is monstrous. And that is why the Supreme Court’s kind of public perception has taken such a hit in recent years. It’s not because of their decisions. Their decisions are awful. I can. I have literally made a whole career explaining why their decisions are awful, but the way that they’ve gotten the power to make those decisions is anti-democratic, anti-American, if not straight up immoral.

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S1: We’re going to take a short break when we come back. More on the upcoming Supreme Court session with political analyst Elie Mystal. This is a word with Jason Johnson. Stay tuned. This is Jason Johnson, host of a word Slate’s podcast about race and politics and everything else, I want to take a moment to welcome our new listeners. If you’ve discovered a word and like what you hear. Please subscribe rate and review wherever you listen to podcasts and let us know what you think by writing us at a word at Slate.com.

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S2: Thank you.

S1: You’re listening to a word with Jason Johnson today, we’re talking about the latest from the Supreme Court with Elie Mystal. This is being Elie. I’m glad that you mentioned Kavanaugh and the upcoming sort of abortion issue the court allowed Texas, you know, to go forward with this restrictive law. And then we’re hearing about this thing called like a shadow docket. What is the shadow docket and how was the court using it to sort of weasel their way into decisions like ending abortion and limiting voting rights without having to actually put their thumb on the signature?

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S2: All right. If there’s one thing most people know about the Supreme Court is that takes a long time to get it right as the wheels of justice grind slowly. Most people understand that right. The shadow docket is the core. Is the emergency process right? Some things we don’t have time to wait for a long time, for years and years and years for it to get the Supreme Court. So that’s the emergency appeal you appeal emergency, the Supreme Court, the Supreme Court quickly without debate, without public hearing, and they kind of make a decision issue a ruling ban. You’re done. You live or die. That’s what the shadow docket is for. Historically, there’s nothing wrong inherently with having an emergency process for emergencies. What the Conservatives have done is taken the emergency process and used it for things that are not emergencies. The Conservatives have decided to overturn laws through its emergency shadow process without a full hearing and importantly, without explaining what they do. It is particularly important that I understand why the Supreme Court does what it does, because the way our common law system works, it requires us to know not just what the law is, but why it is that way so that we can iterate and figure out what other laws may or may not meet. That’s how the common law system works, right? You have to explain, in your opinion, a written, long ask opinion. That’s why people go to law school, why you did a thing that you did in the shadow docket. You don’t have an equation. Select for SBA, for the Texas law. I don’t really know why it’s suddenly OK to use bounty hunters to subvert the Constitution. Brett Kavanaugh just said so. That’s not law. That is authoritarianism. And you know, I can be light. I can light about it. But it’s it’s it’s a direct threat to our system of government and as a direct threat to our rule of law. And they’re doing it in plain sight and nobody’s stopping them.

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S1: What are, say, one or two other really critical cases that you see that could happen in this court session that, you know, could basically fundamentally alter the balance of power in this country irrevocably? What else are we looking at basically

S2: the time we get to June when they make these decisions? I’ve said this a lot. Owning a gun is going to get you more rights than owning a uterus. The direct challenge to gun rights in a world where abortion was not on the table this term. The direct challenge to gun rights would be the big case everybody was talking about. This is called New York State Rifle and pistol. They’ve sued New York State over the issue of gun licensing. Arguing that gun licenses itself are unconstitutional, which I mean, look, the state can make you have a license to drive a car. The state can make you have a license to sell a beer. But according to the ammo sexuels, you don’t need a license to own a gun and to carry it outside your house. That’s their argument. The Supreme Court is likely going to agree with that argument, and the justification for that argument will be will stick in my craw, particularly because conservatives are going to agree because conservatives think the Second Amendment is the only amendment that counts. But they got some help over the course of this case with an amicus brief. That’s that’s a friend of the court. That’s a ain’t my business. But if you were looking for my opinion, here’s what I think. Brief filed by a group of public defenders in the city who predominantly represent urban clients, urban being the euphemism in this world for black people and brown people. And they said these black attorneys argued that this the New York state licensing requirements were racist. All of the arguments that a person like me would make about why kind of drug enforcement laws are racially biased, these public defenders made about gun laws, they said. Gun laws were used as a pretext to stop otherwise law abiding people and harass them for no reason that they had different penalties, depending on the color of your skin and how hard you would get hit with an infraction that the very people I mean, get this in New York. The very people who control whether or not you can get a license or not are NYPD. Which which ain’t right. Right? So the public defenders made really great arguments for why New York gun licensing requirements are racist, I agree with their arguments. They have identified a problem. They have come to the wrong solution. Their solution is to was to sidle up, get in bed with the ammo sexuels and argue for gun rights as opposed to arguing for civil rights. Are you for the 14th Amendment equal protection rights? Don’t argue for a more engorged chest, the violent version of the Second Amendment. I have two predictions for this term. One. Pain. Two, they’re going to let Clarence Thomas write the gun decision because they’re going to let. They’re going to let their boy write the pro-gun opinion in the language of civil rights that was given to him by the New York public defenders, and that will bother me when it happens.

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S1: We’re going to take a short break when we come back more on the upcoming Supreme Court session with political analyst Elie Mystal, this is a word with Jason Johnson. Stay tuned. You’re listening to a word with Jason Johnson today. We’re talking about the latest from the Supreme Court with Elie Mystal Elie. Let’s step back to almost this time last year, right? Everybody is is is gripping tables, biting their nails is, you know, is Biden going to win this election? How is he going to win this election? But you were one of the people who all throughout campaign season was talking about what we needed to do with Supreme Court. You were talking about the fact we need to expand the court. Can you sort of explain a bit why you want this court to be expanded and what expanding the court would look like?

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S2: Court packing is the easiest thing to do to fix the court. Impeachment, you need 67 votes in the Senate. That ain’t going to happen. Term limits you probably need a constitutional amendment to have term limits. That ain’t going to happen court packing, especially if you eliminated the filibuster. 51 votes. Bill passes. House passes. Senate signed by the president. More judges, right? So that’s number one. It is the easiest constitutional way to fix the court. It’s been done nine or nine times or so in the past. The number nine is not sacrosanct. There, there are reasons to have more judges. And so that’s where I get to my real argument here. I support additional judges as revenge for what they did with Garland and Gorsuch and Kavanaugh and Barrett. I can support it on straight revenge grounds until the cows come home. However, there are better grounds and those are reform grounds to support court expansion. One of the reasons why we have why the court has lost its legitimacy is because the confirmation process itself is broken. If you cannot see that Mitch McConnell broke it, I cannot help you. But clearly, our confirmation process is broken, and one of the reasons why it’s broken is because it’s entirely too politically important, right? These people put them on the court. They’re going to rule for generations. It would be malpractice to do anything other than go to the mattresses over these appointments, which the Democrats don’t do. If you expanded the court and I suggest adding 10 to 20 judges, the California Circuit Court of Appeals Ninth Circuit Court of Appeals has twenty nine judges. It works just fine. So I would, I would add, literally 10 or 20 judges. If you have one of 29 coming up for confirmation, if not a make or break battle for your entire political party. So that’s a that’s a way to reform the confirmation process. When you talk about the decision making coming out of the court, I am a crazy lefty like crazy lefty, the senators from the court. But most people say they want moderate decisions from the court. Well, if you want moderate decisions from the court, the way to do it is not to elect, not to appoint moderates who you don’t even know if they’re really moderate on this issue or that issue. If you have 29 people, I promise you a decision with that needs a 15 person majority will be more moderate than a decision that needs a five person majority. But at the end of the day, we have to understand that the Supreme Court in our system has a veto power on the other branches of government. No other that I know of major industrialized nation has a court as powerful as our Supreme Court. So, yeah, I think court expansion is the way to go.

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S1: What do you think we’ll be looking back on and commenting about at this point next year on the court?

S2: Honestly. Here’s what’s going to happen. Here’s I can. I’ll predict my old one, right? I am going to spend this October right before the midterms, trying to convince Democrats that Roe v. Wade has been taken away because the way the court is. Because watch this Jason the way the court’s going to take away Roe v. Wade is that it’s going to change the standard defeat of viability so that functionally states by states can ban abortion as they want after six weeks, after ten weeks or whatever. But they won’t officially overturn the case. They will still say the case is good law and that will you think that would be? Well, that would be obvious. But that will leave Democrats a lot of moderate white male Democrats to say, Well, see, Roe was protected. We’ve done everything that we’ve had to do. Nothing to worry about here, folks. Move along to your polling booth like that’s what they will say, and I will have to sit here trying to explain to people actually know if you live in the second most populated state in the nation, you can’t get an abortion. Actually, no. If you live in Florida, you can’t get an abortion. Actually, no. If you live west of the Mississippi east of the Sierra Nevadas, you can’t get an abortion. So Roe v. Wade doesn’t matter, and people will say that I am being extreme. So that will be one part of my life, the other part of my life. We explaining to mainly Democrats that the reason why we’re about to get curb stopped in the upcoming midterms is because the Voting Rights Act has been taken away. And so people of color, the base of the Democratic Party, cannot easily participate in the election, and the current Democratic administration has shown no. Indication or willingness to help them participate in the election, which will further drive down the motivation to overcome the hurdles, to participate in the election, and then people will say like, Oh my god, oh, you’re such a negative Nancy, you just want Democrats to lose. You must like drop. So that’s where I’m going to be a year from now.

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S1: Elie Mystal is an MSNBC political analyst and the justice correspondent for the nation. Thank you for joining me today on a word and being my partner in cynicism.

S2: Thank you, Sensei.

S1: And that’s a word for this week. The show’s email is a word at Slate.com. This episode was produced by Ahyiana Angel and Jasmine Ellis. Ayesha Saluja is the managing producer of podcast Slate. Gabriel Roth is Slate’s editorial director for Audio. Alicia Montgomery is the executive producer of Podcasts at Slate. June Thomas is senior managing producer of the Slate podcast Network. Our theme music was produced by Don Will. I’m Jason Johnson. Tune in next week for word.