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Speaker 1: Hi and welcome to Amicus. This is Slate’s podcast about the courts and the law and the rule of law and the Supreme Court. I’m Dahlia Lithwick, and I cover some of those things for Slate.com. This past few weeks have been something approximating an absolute living nightmare of gun deaths in America, the white supremacist massacre of African-Americans at a grocery store in Buffalo. The unspeakable carnage of murdered schoolchildren in Uvalde, Texas. And killing sprees in Iowa and Oklahoma.
Speaker 1: And just quite literally, too many places to name. These atrocities are not met with the sobriety and seriousness and horror that they warrant. They are met with almost winking proffers of quote, thoughts and prayers and pledges to arm librarians and doctors and truly deranged plans to close all school exits.
Speaker 1: But one, it is too easy in this moment to feel these twinned responses of grief and helplessness, the doom loop that is both The Onion headline about nothing to be done about a problem that only happens in America, and this monstrous indifference of a political system that appears to have been designed so that nothing can be done. We wanted to mark that sentiment, but we also wanted to check it.
Speaker 1: And this week, I found myself interviewing Attorney General Eric Holder for our upcoming summer books season that will open in July. His new book is called Our Unfinished March The Violent Past and Imperiled Future of the Vote. It’s about gerrymandering and voting rights. It’s written with Sam Koppelman and published this past month by One World Press.
Speaker 1: The book is a direct refutation of that feeling of unresolved grief, a roadmap to repairing the democratic systems that allow us to just languish in catastrophes that should be resolvable.
Speaker 1: So here is Eric Holder, attorney general of the United States under President Barack Obama from 2009 to 2015, and the first African-American to hold that position on what needs to be done and more urgently, what can in fact be done to stop a cycle of unbearable, senseless gun violence that is eating the country alive.
Speaker 2: The thing we have to first understand is that the gun problem is inextricably tied to our democracy problem. There are substantial majorities of the American people who are in favor of simple, commonsense things like background checks, banning assault weapons, not to the same degree. 80, 90% of the American people want to make sure that everybody goes through a background check. 60% of the people so want to make sure that assault weapons don’t litter our streets. And yet 60% is a very substantial number. You get 60% of the American people to agree on anything. That’s a signal achievement in 2022.
Speaker 2: And yet the will of the people is not expressed in either our laws or our policies around guns. And that’s because our system is designed in such a way, or our system has been exploited in such a way to prevent the will of the people from turning into the regulatory scheme, the laws that they would like to have in place.
Speaker 2: You have gerrymandered state legislatures that passed these laws and that allow for 18, 19 year olds to go and buy weapons of war. You have a House of Representatives that is beholden to and people keep saying the gun lobby, we need to stop saying they’re beholden to the gun industry because that’s what’s really the NRA is nothing more than a shill for the gun industry. They wouldn’t exist without the contributions that they get, the money that they get from the gun industry. And that industry has made the determination that it doesn’t matter what the American people want. They have an ability to exploit the political system in such a way that their commercial interests are more important than the lives of elderly black people in Buffalo, Little Angels and Uvalde, Texas.
Speaker 2: And we saw this ten years ago when I saw those bodies of those pictures, of the bodies of those little angels in Newtown, at Sandy Hook. What was determined to be more important by this industry was their commercial success. And they have co-conspirators, confederates, collaborators who serve at the state and federal level, who know that they can do things inconsistent with the desires of their constituents and suffer no electoral consequence. That’s the problem.
Speaker 1: Attorney General Eric Holder on stopping the cycle of gun massacres. You will hear much more from him about his tremendous new book in an upcoming show this July.
Speaker 1: For this week’s show. We wanted to spend some time buckling in together with you for what’s to come at the U.S. Supreme Court. As of this first week of June, in this October 20, 21 term, the high court is facing its biggest backlog in over 70 years, according to our friend Greg Store. The High Court is due to issue 33 opinions. That’s 53% of its expected total in all argued cases. And all of that is due in the days between now and July one. The court is also juggling a leak investigation around the Dobbs opinion, a shadow docket that seems to never sleep and roiling public discontent and internal strife. So that seems bad to figure it all out.
Speaker 1: We’re going to speak to our very favorite Supreme Court reporter, Mark Joseph Stern. He covers the courts and the law for Slate. And we’re going to try to pick a path through everything that’s gone wrong and what could possibly happen later on in the show. Our slate plus listeners will have access to a conversation I just had with Noah Bookbinder of Citizens for Responsibility and Ethics in Washington about judicial ethics and the increasing tension between the justices, aversion to oversight or binding ethical rules and the health of our democracy. Slate Plus, listeners will have access to bonus and emergency segments of Amicus. Mark and I will be hopping into the studio as soon as the biggest cases start to come down this month. And thank you, as always, for supporting the work we do at the magazine.
Speaker 1: Okay. Speaking of Mark Joseph Stern, he is here now to try to help make sense of a term that is not like any term I have ever seen. Mark covers the courts and the law for Slate. He is the fearless anchor of the above mentioned amicus plus segments, and I think he’s as bleary eyed as I am. And it’s only June. Mark, welcome to the big show.
Speaker 3: Thank you. So honored to finally graduates on to the real program. It’s great to be here. Thanks for bringing me on to talk about bad things, as always. I can always rely on you for that, Dahlia.
Speaker 1: Well, maybe it’s all good. I mean, my sort of gloomy preface of wheels coming off and then just killing people with the wheels coming off is just wrong. But I wonder if maybe a good place and I can’t really even think of a good place to start. But here’s my framing question for you, Mark. Every year you and I, we wrap the term up by gaming out. You know, keep the courts going to go big here. It’s going to go small here. It’s going to compromise on this. Maybe the majority, the conservative majority will overrule the thing, but they will say they’re not overruling it. Right. There’s all these tricks to making it look an insane that seems to be over.
Speaker 1: All of those conversations we’ve had over the years was predicated on the idea of a court with a Justice Kennedy or a Justice Roberts at the center who cared about things like, Oh, I don’t know, public legitimacy, how things look. Public acceptance, not doing everything at once. So I guess my question for you is those days, at least in my eyes, seem to be over.
Speaker 1: Our friend Leila Litman from the Strict Scrutiny podcast at the beginning of this term talked about the hashtag YOLO. You only live once. Wing of the current Supreme Court. That’s Justices Sam Alito, Neil Gorsuch, Clarence Thomas. She made it sound like that was possibly a YOLO minority. But given that there are only hot button topics on this docket and this court also seems ready to go big on guns and abortion and religion and dismantling the administrative state and the death penalty. Isn’t this month just better understood as the opening year of hashtag YOLO SCOTUS?
Speaker 3: I think that yellow fever is infectious. I read that on WebMD. And even if Gorsuch and Thomas and Alito began as the YOLO trio, I think clearly Barrett and Kavanaugh and sometimes Roberts decided that they wanted to get in on some of that fun. And Alito’s leaked opinion and Dobbs sort of responds to the criticism that you and I are making, where he says we should not care really about the public’s reaction to our decisions because we don’t derive our legitimacy from the public or from public support. We derive it from the Constitution. And the only way that we can try to build up faith in the integrity of our institution is to apply that constitution by our best lights and let the chips fall where they may, which is just a highfalutin way of saying YOLO.
Speaker 3: And I think that’s very evident in the way that the court has flooded the zone with not just culture, war stuff this term and next, but also these really important decisions that can fly under the radar. Like Shin versus Ramirez, really gutting habeas relief for people who are actually innocent and due to be executed and in some really terrible religion cases that we’ll talk about soon that flew partly under the radar, but are going to essentially use the free exercise clause to repeal the establishment clause and say that the very idea of separation of church and state is, in fact, unconstitutional.
Speaker 3: And I think when you’ve got at least three guys over in the corner having the time of their lives at the party, the temptation is to refill your cup and go over and join them. And it seems like that is what at least Barrett and Kavanaugh have done more often than not. And there’s no need to appease a Justice Kennedy anymore. There’s not even a need to get on the chief justice’s good side because he is largely irrelevant on a63 court.
Speaker 3: And we are seeing not just how a63 court shifts each individual area of law, but how it empowers one particular faction of the bench to really push as hard as they can and bring some of their ideological bedfellows along for the ride and convince them that they shouldn’t care about public reaction. They should just get this work done while they have a chance. And again, if the public hates it, if the public loves it, doesn’t matter, because that’s not their concern.
Speaker 1: And I guess that leads to a completely non facetious question, which is maybe this is a good thing, Mark. I mean, maybe all the years of what you and I keep calling gaslighting of the John Roberts ethos of lie to us better, you know, do a better job of giving us a pretext that we can live with all of those years of blind faith in this oracular court that doesn’t do politics. Maybe it’s better that it’s over. Is there any utility in just having the fiction and the pretense gone?
Speaker 1: And I say that, you know, with all due respect to Justice Stephen Breyer, like swims in the soothing, warm waters of the pretences and illusion. But like for the rest of the world, isn’t it a good thing to just call it what it is, have it be this bareknuckle, purely political, purely partisan fight? Because at least now we can talk about it in its real terms.
Speaker 3: I think you and I have been talking about it and its real terms for a while, and what’s happening is that more and more folks are looking at what’s going on and agreeing with us, which to me is definitely a good thing. I love it when you like.
Speaker 1: To be right.
Speaker 3: Yeah, but it’s I think it’s really bad for the country, of course. And I think that even just on an abstract level, I would like to believe that the Supreme Court is a fully legitimate institution that can do justice equally without fear or favor and is not fully corrupted by politics. I’d like to believe that in part because I’m not sure that there’s a way out. When the court becomes fully corrupted by partisanship, look, we have set up this system that is unique among all democracies in the world. Every other country thinks we’re crazy for doing this, but we give this group of nine oracles lifetime tenure and unlimited power to do whatever they want.
Speaker 3: And frankly, I think the time to have this open and honest conversation about the court would have been in like 2016 when voters knew that a seat was on the line and still Republican voters reported being much more activated about the Supreme Court than Democrats. And so, yes, it’s great to finally have the gloves off and just acknowledge the court for what it is. But it’s tragic that we’re doing so against the backdrop of these horrific decisions that will truly inflict death in the case of forcing women to birth unwanted pregnancies. And the case of the gun decision that we’ll soon talk about and destruction of our democratic institutions of voting rights. Of all the stuff that made America a thriving multi. Racial democracy within our lifetimes. So, you know, there’s good and there’s bad, but I would say that the bad probably outweighs the good.
Speaker 1: And just one last follow on to that. And this is, again, rank speculation, but do you have a cart horse answer to the question of all of these other pathologies that we’ve been talking about this year, whether it’s unreason, shadow docket orders or reliance on unreason shadow docket orders, as though they are now reasoned or potshots by the justices at the press, potshots at each other, really, I think acrimonious infighting, the leak itself, Mark, Clarence Thomas, recent kind of love song to the much better court under Chief Justice William Rehnquist.
Speaker 1: What’s the cause and what’s the effect here? In other words, I’m super curious if the justices are now of the view that good, the gloves are off and now we’re going to act like small children, or if the acting like small children, just in whatever context, whether it’s the partisan speeches or the, you know, fighting about wearing masks at oral arguments together, that’s causing the kind of fiction to fall away.
Speaker 3: I think that question is very offensive to small children, many of whom are far better behaved than Sam Alito under any circumstances. Look, it’s a great question, because what we’re seeing right now in terms of demeanor with the justices feels a little counterintuitive. People like Clarence Thomas and Sam Alito are about to get everything they want. They are winning so much. They are prevailing in almost every single major case and a lot of minor ones. Clarence Thomas is writing blockbuster opinions for the first time in his career because he can finally hold together a five justice bloc. And yet Alito and Thomas have never sounded angrier. They go out and they do these wild partisan speeches complaining about how much they dislike the current court, about how they feel that even the judiciary is adrift, despite the fact that the judiciary has moved toward them to the right so dramatically over the last few years.
Speaker 3: And so my theory of the case is essentially that they watched for decades while the court was center rights or moderates or occasionally handed down liberal rulings, and the country largely accepted those decisions and the legal establishment accepted them. There was not a call generally to expand the court, and the court’s approval ratings remained high. They feel Thomas, Alito and those horsemen, they feel like, okay, they have now won fair and square. They’re in the driver’s seat. They’re issuing all of the decisions that they think are rights that they believe are certainly no more radical than, you know, same sex marriage or abortion. And suddenly their approval rating is plummeting.
Speaker 3: Multiple Democratic lawmakers are talking about expanding the court. There is a huge amount of unprecedented and brutal candor and the dissents, not just of Justice Sotomayor, but also Kagan and Breyer, who are finally calling it like it is. And I think they’re deeply frustrated and annoyed that they don’t get the kind of deference and praise that they believe they’re owed, that now that they are in the driver’s seat, people are realizing that the court is, in fact, a corrupted and partisan institution, more so now than in living memory.
Speaker 3: And I don’t know if that directly answers your question, but I think that contributes to this dissension among the justices and this discord that we’re hearing about constantly, because I think that they are really mad at the liberal dissenters for pointing out that what they’re doing is in some ways illegitimate and incredibly dishonest. I think they’re mad at Chief Justice Roberts for sometimes stepping up, like in that Clean Water Act shadow docket order and signing on to Elena Kagan’s dissent, saying this is B.S. I think they feel that they are owed a lot more respect than they are getting and that is making them very publicly angry.
Speaker 1: That’s insanely interesting. And it also really does explain why Justice Thomas says, Oh, I long for the days of good fellowship and good cheer when I was writing all these angry decisions, but I had no power. And it’s really, really interesting that now that I have the power, I’m not writing lone, angry dissents now. I am the guy, you know, and I miss those days. It’s not that he misses those days. He just doesn’t quite know what to do with the fact that now that he’s one, people don’t like it. It goes to these kind of democracy, minoritarian conversations we’ve been having all year.
Speaker 3: I agree.
Speaker 1: So let’s talk about some of the cases, because I think my impression, correct me if you think I’m wrong, is that not a lot of people I mean, obviously listeners to this show know that there’s a holy hell big deal gun case about to come down and that the court in a weird way it’s now playing this and I don’t mean to laugh because it’s freaking tragic game of Frogger where they have to come down with a decision in Brooklyn that doesn’t coincide with a day of gun carnage. I’m literally not joking. I don’t know how this decision can come down. Massively expanding gun rights when we’re in the middle of a just catastrophic amount of national attention to gun deaths. But can you before we do that, just for folks who aren’t paying the attention, you lay out what’s at stake in brewing.
Speaker 3: So brewing is a challenge to New York’s very strict concealed carry law, which does not allow individuals to carry a concealed firearm in public unless they can show good cause. Some heightened reason why they are fearful for their lives and need to carry a weapon with them. And I think it’s very clear that there are five or six votes to strike down this law and require New York to grant a concealed carry permit to any gun owner who wants one. And in the process, they will be striking down laws in about seven or eight other states, including California, and affecting millions and millions of people who currently live in jurisdictions where you are not, in fact generally allowed to carry a lethal weapon with you hidden in your purse or cloak and pull it out when you personally feel that you are in danger.
Speaker 3: And we shouldn’t really be laughing about this. The gun carnage in this country is sick and horrific, but there is a mildly amusing side note about how every time you might expect this decision to come down, there’s another mass shooting. And I think that this goes to the YOLO court. They know that there’s never going to be a good time to hand down this opinion. So I think they’re just going to do it when they’re ready and say, to hell with it. And if that coincides with some horrific mass shooting that is furthered by their decision, meaning that they will facilitate even more gun violence through this ruling, they don’t care. They feel like they’re standing up for the poor little man on the New York City subway at midnight who feels threatened by the black person who’s standing on the other side of the car. And that’s the guy they empathize with. And the rest of us who are afraid of being shot to death, we are just not factored into their consideration.
Speaker 1: I want to come back to that empathy point, Mark, because it is such a connector to what we saw in the Dobbs League about who gets empathy at this court. It’s something else we talk about a lot, you and I. But I do want to play that clip because I think for both of us, it was one of the most memorable clips from the oral argument in Brooklyn of Sam Alito making exactly the point that you’re making, which is who is the real loser in New York? And it’s not anybody other than the office worker who wants to have a gun on the subway and can’t. While all these lawless murderers and thugs around him have weapons.
Speaker 4: There are a lot of armed people on the streets of New York and in the subways late at night right now, aren’t there? I don’t know that there are a lot of armed people know how many people with illegal guns, if that’s what I’m talking about. How many illegal guns were seized by that, by the New York Police Department last year? Know do you have any idea? I don’t have that number, but I’m sure there’s a subset. It’s a substantial number. But the people, all these people with illegal guns, they’re on the subway, they’re walking around the streets. But the ordinary, hardworking, law abiding people I mentioned now, they can’t be armed.
Speaker 1: And Mark, I guess my question to you is this feels like it’s very much of a piece where you started today about even. And when you’re winning, you’re still the victim. Under this construction of the facts.
Speaker 3: Yes. People like Alito, justices and members of the conservative legal movement came up in their careers with this victimhood complex. They feel perpetually aggrieved. They feel like the entire legal profession in much of the country is against them, even though they know the one true way to interpret the Constitution. And here, Alito sounds genuinely outraged on behalf of this imaginary person who, thanks to twisted liberal attacks on the Second Amendment, is not able to defend himself in the dangerous and hellish Mad Max style dystopia that he appears to imagine the New York City subway to be.
Speaker 3: And, you know, we could go through almost every case and identify who gets empathy and who doesn’t. But I just think it’s interesting that progressive jurists do sometimes acknowledge that empathy can play a role. Famously, Justice Sotomayor and then had to walk it back to get confirmed. But, you know, there is a strain of progressive jurisprudence that says that people like criminal defendants, the underprivileged, the less powerful, that they actually do deserve some measure of empathy and consideration about the facts of their lives, their circumstances, when they are going up against often a giant corporation or prosecutors who have way more power than they do.
Speaker 3: Whereas the conservative justices have long said that empathy is illegitimate in judging, that there should be absolutely no consideration of individual’s circumstances which might draw some sympathy. And yet here we have the conservatives very openly empathizing with the guy on the subway facing a mugger or whatever, and just refusing to extend any empathy to the rest of us who are afraid that someone with a concealed gun is going to murder us in public. And so it’s not just that they have this obvious empathy. It’s that they pretend that empathy plays no role, even as it so clearly drives their analysis of the constitutional issues at hand.
Speaker 1: And a coda to this is a point you and I made in print last week, but I think it’s worth saying that protesters outside some of the justices homes after Dobbs were immediately met with bipartisan congressional efforts to protect the justices. They get protection from imagined or real assailants. The idea that nobody else has that protection doesn’t seem to factor.
Speaker 1: And one of the things that was really hard to listen to in ruin was this kind of whack a whack a comedy routine about what kinds of places are sensitive places where you might, in fact, allowed to regulate guns. And it’s like, ha, ha. The Columbia University campus. The NYU campus. Ha ha. The Times Square on New Year’s Eve. This sounds as though, a, the justices have already determined for themselves that a sensitive place where you can regulate gun possession is at the Supreme Court.
Speaker 1: And then the idea that we can just spitball based on our own fleeting sense of whether Times Square at New Year’s Eve is or is not a sensitive space that should be regulated. I mean, it’s not just empathy. It’s just absolute rank, feelings, impressions, hunches. Opposite of justice.
Speaker 3: And how lucky for them that they do not face the lethal consequences of their own rulings, that they will not be the ones on the New York City subway. When some overeager concealed carry permit holder whips out his gun and starts shooting wildly because he thinks that the people who are doing the dances on the poles are actually trying to rob him. The justices do not have to deal with this stuff. And so for them, it’s all a parlor game. And that is very sickening to me because it’s our real lives and they just don’t appear to care at all.
Speaker 1: I want to turn to the religion cases, Mark, because you’ve talked so often in our Amicus plus segments about this paradox, the same paradox that you flicked at where Justice Alito says in Dobbs, if you don’t like it, you can do something about it. And, you know, obviously, injecting religion into the public sphere is something that the court is very invested in. And Carson, one of the cases we’re going to talk about just now is a natural conclusion of years of trying to have public funding go toward religious schools, which is another one of those places where there’s such a paradox here, because this is not a massively popular public opinion.
Speaker 3: No, I don’t think that most Americans would say that they would like their tax dollars to subsidize the exercise of religion that they do not subscribe to. And yet that is exactly what the court’s going to do in this case, Carson. So just to back up for those who aren’t keyed into this, one man has a lot of rural areas where there aren’t public schools and the state will pay for kids to go to private schools in those areas. And it has one rule, which is no religious schools. We’re not going to pay to send kids to overtly religious schools to get religious education, because that would be subsidizing the exercise of religion, which is not only wrong in our view, but we think violates the establishment clause of the First Amendment, which we had thought for many years required the separation of church and state. And in this case, the Supreme Court is going to say, no, no, no, quite the contrary.
Speaker 3: The First Amendment’s free exercise clause requires the state of Maine to fund these overtly religious schools and to fund the indoctrination of these children. And I don’t use that word lightly if you look at the schools that are going to benefit. They are like evangelical indoctrination academies, anti LGBTQ. They expel gay and trans students. They expel students who are children of gay parents. They discriminate wildly against LGBTQ teachers. They force students to continually pledge their allegiance to Christ and all of his works. This is the pure exercise of religion, the kind of thing that James Madison wrote the First Amendment to prevent. If you read his writings, it’s pretty clear.
Speaker 3: And yet the court’s going to say that, in fact, the First Amendment requires public funding of these schools by by declaring that simple government neutrality toward religion. That just having the government say we want to be neutral toward religion so that we are not respecting any kind of establishment here, that that somehow violates the free exercise clause, and that in reality, the government is obligated by the Constitution to grant special favors and funding to religious schools and institutions.
Speaker 1: And can I play you a minute of Justice Gorsuch talking about watered down religions in oral arguments in Carson v Macon?
Speaker 4: I do want to understand this theory. So a private entity can provide a public education in Maine? Yes. A private entity in California. Can a private. Yes. We just can’t have too much religious entanglement. It’s not that as too much religious entanglement is. Some might be okay, but some some might not. Well, I believe your answer to the chief justice, the ones that would not be okay, are the ones that are instilling religious beliefs in children. How does that not discriminate against minority religious viewpoints or ones that are unorthodox because of some in favor of religions that are more watered down, some might say, or more more mature terrain, more comfortable with what a what a bureaucrat in Bangor might say.
Speaker 3: What’s incredible to me is that if some civil rights commissioner in a state said what Gorsuch just said there, the Supreme Court would accuse him of anti religious animus. Gorsuch is essentially saying here that the so-called watered down religions, that the more liberal sects, they sort of don’t count, and that the religions that need special protection from the Supreme Court are the hard core evangelical religious. They’re certainly not talking about Islam or Judaism here. Let’s be real. And I think it’s a really clear illustration of how this court exhibits such favoritism toward extremely devout religious people and institutions and really spurns secularism as some kind of perversion of the American constitutional order.
Speaker 3: And a Gorsuch, in that quote, almost feels like a Freudian slip or something to me for him to say. And this was in the context of basically a Unitarian Universalist school that that the justices were considering. For him to say that’s watered down just shows that what he and his conservative colleagues really want to do is give hard core religious institutions a whole lot of benefits and a whole lot of say over public life in America. More influence in the public sphere because they are the true religions. They are the people who were really meant to be protected by the free exercise clause. And everybody else can just go get lost with their ridiculous secularism nonsense.
Speaker 1: And let’s talk for just a quick minute, Mark, about Kennedy, the other religion case. And folks will remember this because it was argued fairly recently. But this is a coach who wants to have an overtly sectarian prayer following football games. High school students may or may not feel as though it’s in their interest to pray with him. And this is another example, Mark, of a case where the justices, at least at oral argument, seemed to have boundless empathy and solicitude for his interests, for the ways in which he is being silenced or he is being prohibited from exercising his speech and religious liberty interests, and pretty much just blank out the interests of the students and their parents who may not want to be involved in what is effectively a religious service happening on school time.
Speaker 3: And we have on the record here the voices of schoolchildren who said that they felt coerced into joining this prayer circle, into participating in Christian prayer, with which they do not agree, because otherwise they might lose time on the field. They might face retaliation from officials. One student who actually did refuse to pray said that he faced retaliation, that he was excluded. And that is the exact kind of constitutional harm that the Supreme Court has long said is prohibited under the establishment clause, coercing people, especially children, into practicing a religion that they do not share.
Speaker 3: And yet again, this brings us back to our theme. The court is just using the free exercise to repeal the establishment clause. And so those kids and their interests are wiped from the analysis. And the court will only focus on poor Coach Kennedy, who just wanted to practice his religion in peace, not really at the 50 yard line in public, and give him the rights to really start bringing Christian prayer back into public school in a way that has not happened since the Supreme Court first outlawed prayer in public school in the 1960s.
Speaker 1: I’m going to keep just doubling down on this same theme about solicitude and empathy for me and not for the. As we turn to Dobbs and we’ve done so many shows on abortion and on Dobbs, so we don’t need, I think, to go into the facts of the Mississippi 15 week abortion ban, the leaked draft that seems to suggest a huge, big swing overturning Casey and Roe. But I guess I do want to ask you a version of the YOLO question that we opened with, which is, do you have any reason to believe, Mark, that this draft is going to get substantially softened between now and its release?
Speaker 1: In other words, I think of the Dobbs draft as a natural experiment in whether public outrage, public sense that again, to pull on the other theme, there are whole classes of people who are invisible in the Dobbs opinion, including all the pain and suffering of forced pregnancy. Does Justice Alito go back and pull from this? Very, very, I think, sarcastic and caustic draft some of the language that suggests that he just doesn’t care if women suffer.
Speaker 3: So my guess is that Kavanaugh especially will require Alito to tone down some of his rhetoric as the cost of his vote. I don’t think that anything substantive will change. Maybe that passage that seems to strongly suggest that the gay rights decisions were wrongly decided will either disappear or be somewhat massaged. But my guess is that the clear scorn for abortion and abortion rights advocacy is going to rile up Kavanaugh because we know during oral arguments Kavanaugh was already doing backlash management. He was saying, We’re just going to be neutral about abortion. We’re not going to be pro-life or pro-choice. We’re going to maintain scrupulous neutrality on this issue and let the people decide. And Alito’s majority opinion right now is not neutral at all. It drips with disgust toward abortion and toward people who get abortions, people who provide abortions. And I think that will really bother Kavanaugh.
Speaker 3: Now, the fact that this ruling will condemn women to die by forcing them to carry and birth high risk pregnancies, I don’t think that bothers Kavanaugh at all. He doesn’t care about them, but he doesn’t want the public to think that he is an anti-abortion zealot and that that’s what drove his vote in this case. So I do think that we may see a somewhat more, I don’t know, PG rated version when this draft comes out, but almost all, if not all, the substance will still be there.
Speaker 1: And does that lead you to have a sense of where John Roberts lands in this? Does he end up voting with the three liberals knowing as he did? I mean, we’ve seen this before in abortion cases that on the merits, he 100% agrees with what Mississippi tried to do and with what Sam Alito wrote. Or does John Roberts just try to? You know, it’s interesting. It’s interesting all these conversations we’ve had over these years about how John Roberts manages the court and the appearance of legitimacy. Now, I guess he has to manage the appearance of legitimacy of John Roberts. Where does he land now?
Speaker 3: So we know that as of the leak, he was trying to persuade one or two conservatives to sign a, quote, moderate opinion that would uphold a 15 week ban and maybe even earlier bans without formally overturning Roe in case a query whether that would actually be better than what Alito wants to do or whether it would just trick people into thinking that the right to abortion still exists in some capacity and mute the political backlash. I think that Roberts is thinking about that, and it may be driving his desire to carve out a kind of phony middle ground.
Speaker 3: I think, though, that now with this leak, there is a real chance that Roberts just signs on to a toned down Alito draft and that Roberts views the leak as an attack on the court’s legitimacy and doesn’t want to reward the leaker if he thinks it was a liberal by setting himself apart from the other conservatives. And I think also he does not want to be known as the chief who lost control of his court. He wants to look like he’s in the driver’s seat. And, you know, Chief Justice Warren Burger, he did not agree with Roe at all, but he signed on to it because he wanted it to look like it was still his court. I think there’s a chance that the chief does this. And even though he thinks that the court is making a huge political mistake at a bare minimum and just resigns himself to the fact that even if he’s no longer in control, he could still occasionally create the illusion of control.
Speaker 1: We’ve done show after show, Marc, about the court’s yearslong efforts to kneecap the regulatory state. The case in which it probably is most salient this year is the court now poised to decide whether to restrict the EPA’s power to tackle climate change? What’s the thought, Mark, on again? Whether this is the kind of thing that, you know, we’ve done a lot of work this term at this court on hobbling the CDC, on hobbling other regulatory agencies. Is there any reason to think that even the YOLO Court doesn’t need to just jump in on saying we’re not going to let the EPA deal with a potentially cataclysmic climate disaster?
Speaker 3: So the EPA case is actually, I think, a weird case and a poor vehicle for what a majority clearly wants to do. Just briefly, there’s not actually a carbon rule in place right now that’s being challenged that the Biden administration wants to keep. There’s no rule. It’s a very bizarre set of facts and maybe not the cleanest vehicle for the court to take another big chunk out of agency deference in the entire administrative state.
Speaker 3: Plus, these cases will just keep rolling in because every time the Biden administration does anything, when Joe Biden farts in the Oval Office, red state attorneys general run to a Trump judge and demand a nationwide injunction and they get it. And at least half the time they convince the Fifth Circuit to uphold it. And so I think all these cases are on a rocket docket to SCOTUS. And if this one is too massy for them, they can just do a little bit of damage and then wait until next term to start striking down these laws as a violation of the non delegation doctrine or the major questions doctrine or all this other garbage that has no basis in the Constitution or in law but that Brett Kavanaugh and Neil Gorsuch really like.
Speaker 1: We have to go back to the shadow docket for a second because that’s where we started the term and we started the term in a very in some sense strange place, which is a massive public awareness that something was hinky about the shadow docket. SB eight had just come down, remain in Mexico by an eviction moratorium. All of this was happening on the shadow docket as the term opened, the result of which was instead of the court saying itself, I’m taking a long look in the mirror and I think maybe we shouldn’t act completely bananas. And instead of that happening, we had the court doubling down. We had Amy Coney Barrett hectoring us about read the opinion where there was no opinion on the shadow docket and Sam Alito famously going after Adam Sewer in a speech at Notre Dame. Let’s have a listen.
Speaker 4: Here is a line from a recent piece talking about our refusal to grant an injunction in the Texas abortion case. Quote, The conservative majority on the Supreme Court was so eager to nullify Roe v Wade that it didn’t even wait for oral arguments and quote, Now, put aside the false and inflammatory claim that we nullified Roe versus Wade. We did no such thing. And we said that expressly in our order. I quote, The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. This order is not based on any conclusion about the constitutionality of Texas law. So the statement is flatly wrong. And suggestion that we should have held oral argument is ridiculous.
Speaker 1: So again, Mark, I guess this is part of this animating theme of zero self-awareness, SCOTUS, zero ability to say, we could do this in three years and people might not be protesting in our driveways, but let’s just get it done now. And I wonder if part of this lack of self-awareness is because it’s just too easy to blame the press, or if there’s something more pernicious that really does go to the heart of where you started talking, which is the court actually doesn’t care about the institution of the court.
Speaker 3: I think that for the most part, a majority does not much care. They know they’ve got the power again. They have watched past courts wield that power in a way that they thought was disgusting and illegitimate and nothing really happened. The court still stood and people still abide by its rulings. So I don’t think that they feel an obligation to adhere to any particularly rigorous standards here, which is something that Elena Kagan has pointed out and castigated, sometimes joined by the chief, again, where she says that the processes that we have in place, full briefing, oral arguments, all that stuff, legitimates the court. Authority. That’s her word, not mine. And without it, the implication is the court’s authority becomes illegitimate.
Speaker 3: The response from the five ultra conservatives has been, We don’t care because we can still do it and we can get away with it. And I really do believe call me a conspiracy theorist. I really believe that they like these midnight orders that don’t get nearly as much attention because of when they come out. They don’t get nearly as much coverage that sometimes take a case in a really bizarre procedural posture that’s hard to understand because it takes the heat off of them, it takes the spotlight off of them, and they can get this work done. They can accomplish these years long goals of the movement in a single paragraph order that very few people read or understand.
Speaker 1: Mark before I say goodbye, can I ask you one goofy question and one serious question?
Speaker 3: By all means.
Speaker 1: The goofy question is we are in the midst of an unprecedented investigation of this Dobbs league. And the clerks court officials are asking clerks to turn over their private phone data and sign affidavits about whether they’re being truthful. I’m guessing that the justices and their spouses are not similarly being investigated, correct?
Speaker 3: Yes. According to the fabulous reporting from Joan Biskupic on this, it is only the clerk so far and potentially later court staff who are being asked to turn over their private information and data to Colonel Curley, who is in charge of this investigation, despite having literally no experience ever investigating anyone. And I think it’s pretty notable that Ginni Thomas, who is currently being investigated by the January 6th committee, is not subject. As far as we know, to this probe. And if I were a clerk right now, my answer would be absolutely not. Hell, no, you don’t get my phone and you can talk to my lawyer, in part because until Ginni is sitting in that interrogation room or whatever they’ve got going on in the courts. We all know this investigation is ridiculous.
Speaker 1: So I do want to ask my serious question and then we can say goodbye. You and I are somewhat I almost want to say hysterically because I can hear the muffled laughter in both of our voices. But like under the laughter is tears of sorrow for this institution that you and I both revere. And we’re watching something fall apart. It seems to me in real time. And I guess I want to ask you, for listeners who are not watching every zig and zag, every jot of every one of the three cases that are going to come down, folks who were surprised by Dobbs because they didn’t think it could happen.
Speaker 1: What is the thing that you would advise listeners to this show this week to really pay attention to? I’m going to guess that having said that, not enough people know there’s a major gun case on the docket. There’s other stuff on the docket to watch for because in the blur of the last couple of weeks, some very consequential things are going to happen and we’re going to miss them. What are those things?
Speaker 3: So I’m just going to say one case over all else, which is the Coach Kennedy case, Kennedy versus Bremerton, because this is a case where one party is lying and one party is telling the truth. And the party that’s lying claims that this coach was fired for quiet, private prayer. And none of that is true. He wasn’t fired and his prayer wasn’t quiet or private. It was very public on the 50 yard line at a school game while he was conducting his official duties. And there are photos of it. It’s like should not be contested. And yet the Supreme Court is going to reject the reality of what happened and adopt this fantasy in order to reach the ruling that they want. And I just want people to look at the facts of this case, read our article about it, go read some briefs, look at the photo evidence, and then read what the court says happened and just hold that in mind.
Speaker 3: Moving forward, remember that this court is willing to embrace outright lies, that this court is willing to build new doctrine on objective falsehoods just to reach a result that they like that furthers their own agenda. And then the next time you’re tempted to believe in the integrity and principles of the majority, remember that. Keep that in mind.
Speaker 3: Because while this case has not gotten a ton of attention, I think it may be this term single best illustration of how the majority believes it is entitled to its own facts and that it can simply warp and manipulate reality when it doesn’t meet the majority’s needs in order to drag the law as far rightward as possible in a short a time as possible.
Speaker 1: So that’s a sobering place to land. Mark, we started with hash tag. You only live once and we’re ending with hashtag alternative facts and those two things I think together maybe set us up for next term. Whatever happens in the next a few weeks when we have affirmative action, when we have more discrimination against LGBTQ Americans, and I’m going to venture some very worrisome voting rights cases, all that is coming. And you are saying and I think I don’t disagree with you, facts may not be what you think they are going into that term.
Speaker 3: Facts just do not matter to this court. And as flawed as this institution may be and has been in the past, that has not really been the case until now. And that feels like a leap into the abyss that bears at least noting, if not bemoaning, as we crash into this final catastrophic couple of weeks in the term.
Speaker 1: Mark Joseph Stern covers the Supreme Courts, the courts, the law and democracy generally, and so many other things so ably and has been my absolutely indispensable partner in crime on the Amicus Plus segments. We’re going to have a lot more of me and Mark talking to end the term. And I just want to thank you, Mark, because I always learn from you, even when what I’m learning makes me sadder than I already thought it was. So thank you.
Speaker 3: You’re welcome. And maybe one day we’ll find at least one great thing to talk about. I just know it won’t have anything to do with this slate.
Speaker 1: Plus, members, welcome to the bonus segment of this week’s Amicus podcast. And after having spent some quality time with the incomparable Mark Joseph Stern in the main show and with the absolute assurance that there is much, much more Mark and Dahlia still coming over the next few weeks as the court starts handing down quickly its last 30 some decisions, I thought I would share something else with you for this particular amicus plus segment. And it is something that I’ve been thinking and writing about a whole lot this year. It’s something that feels kind of vital to have fairly close to top of mind as we wrap up this particular Supreme Court term, and that is this question of judicial ethics, more specifically judicial ethics as manifested at the highest court in the land.
Speaker 1: So I wanted to share a conversation that I had on Twitter spaces the other day with Noah Bookbinder, who is president of Crew. Crew that stands for Citizens for Responsibility and Ethics in Washington. They’re a watchdog group. And I am, to be clear, something of a Twitter spaces newbie.
Speaker 1: Some of you may know that Twitter is not generally my milieu of choice. In fact, I was slightly late to this Twitter space, this conversation, but it was nevertheless a really illuminating and I think for me very clarifying conversation about the high stakes and kind of fuzzy definitions around this murky and increasingly contested issue of judicial ethics at the high court. Now, the only thing is Friends Twitter Spaces is not a podcast studio, so it does not sound like a podcast studio. But that said, I really think it’s worth a listen nonetheless. So here is that conversation with Noah Bookbinder, edited for time and clarity.
Speaker 1: When we look at the rise of authoritarianism and illiberalism around the world, but also in the United States, one of the things we see is widespread erosion of confidence in our institutions. Right. And so if you believe in the rule of law, you have to have a functioning court. And when you look at authoritarian creep in other countries, what you see is a massive destabilisation of the Supreme Courts and the courts. Often those of us who critique the court, who seek structural changes or legislative changes, are told, you just don’t like the decisions that are coming down and you just don’t like the outcomes. And so you’re making claims about ethics problems.
Speaker 1: And my response to that is, and I think Sherrilyn Ifill said this to me so well on the podcast once. Every workplace has to be scrutinized to see if it’s doing things right. There is no workplace that is exempt from being looked at and tweaked and told how to work better. And so I think that it’s not the critics of the court, particularly at this moment, that they just don’t like the outcomes, that we don’t like what happened in Dobbs, we don’t like what’s going to happen in Brew in the Guns case. And so we’re trying to impose reform on the court.
Speaker 1: No, we actually want a functioning court because I, as I have been want to say, in countries where the courts don’t function, plan B for imposing the rule of law is the army, and that’s not good for anyone. And so I think we have to be really clear that this is, in fact, a bipartisan problem, even though it might not get framed as one that it is in everybody’s interest to look at the court, to look at the things that we’ve seen in the last eight, nine months, whether it’s decisions popping up on the shadow docket that are not reasoned, that are not signed, that don’t have any doctrine in them, whether it’s judges speaking at inappropriate places and giving their speeches off the record, whether it’s ethics and failure to recuse, as we I know are going to talk about, all of those things are bad for the institution. They’re bad for the rule of law.
Speaker 1: And so when we talk about imposing ethics reforms, I think all we’re saying is if you want this institution to function, if, as I suspect, this institution may well decide the outcome of the 2024 election, it needs to be legitimate. And in order to be legitimate, it needs to be fixed. So I think that’s my kind of 40,000 mile view. It’s an attempt to say we need the court to be believed because Federalist Papers say neither the power of the purse nor the sword, the only thing the court has is its legitimacy.
Speaker 2: I think that’s exactly right. And I think that we have had elections decided by the Supreme Court. We very likely will. Again, we’ve also had monumentally important societal issues decided by the Supreme Court. And whether you agree with their decision or not, if the Supreme Court doesn’t have its own army, as you pointed out, it doesn’t have the power of the purse. So it only works to have the court playing this incredibly important role in our government if people accept it, if the court has credibility.
Speaker 2: And while I think the Supreme Court rightly is not governed by public opinion polls, it is pretty distressing. But for years, even as Congress and as presidents have seemed pretty low approval ratings, the Supreme Court has always had a pretty high approval rating until recently. And you have a majority of Americans disapproving of the Supreme Court. And that’s a real problem if the Supreme Court has to come in and make decisions that are crucial for our democracy.
Speaker 2: You know, people think that the Supreme Court is not behaving ethically. It’s not going to have the kind of legitimacy that it will need to have to play a key role in holding up our democracy, particularly when we’ve seen in recent years that we can’t necessarily look to the president or to Congress to uphold the democracy. And I do think that agree with him or don’t agree with him on the substance of decisions. Chief Justice John Roberts is somebody who cares a lot about maintaining the legitimacy of the court. But I wonder if that is a reason why. Maybe there’s some reason to think that that there could be some progress on judicial ethics.
Speaker 1: There’s no doubt that Roberts sees himself in a line that goes back to his mentor, for whom he clerked. William Rehnquist, who was also a chief justice, is chief justice. Who really believed that protecting the integrity and reputational interests of the institution writ large was part of the job and not every. Chief Justice has thought that historically we’ve had some really terrifically bad chief justices. But this is a sort of line that is really important to John Roberts. And it explains things like how you get a person who is doctrinally 100% opposed to abortion but who cannot abide by S.B. eight, the Texas, quote unquote, bounty bill that happens on the shadow docket.
Speaker 1: Right. And that simply nullifies Roe v Wade, because one state has decided they’re done with following constitutional law. And so she is on the side of the liberals in those cases, and he’s in some cases really vocally dissenting. It’s not because he’s decided he loves abortion rights. We know he hates abortion rights. It’s that he thinks it’s incredibly damaging to the court to make these decisions either on the shadow docket or in ways that he thinks are sloppy. So that’s the good news. The bad news is I think he’s alone on this project. I think Justice Breyer has written books about the need to protect the integrity of the court.
Speaker 1: Right. Breyer’s kind of thesis is the reason people weren’t out with pitchforks and guns after Bush v Gore, even though Americans hated it. Americans hated Citizens United and they didn’t take to the streets. Why? Because this capital that the court has earned over centuries that allows people to think this is a legitimate institution. Whatever it is they do is not politics, it’s law. And I will abide by rulings I hate. But John Roberts, I think, stands alone in terms of the sort of right wing of the court.
Speaker 1: Now, on thinking that those interests are paramount even more important than outcomes. There’s a kind of a popular claim that there are actually no binding rules at the court, that they’re bound by nothing. That’s not true. There’s federal statutes, there’s judicial ethics canons. And I wonder if it’s worth just taking a minute to lay out what the rules are and then why it is that the justices are not bound by them? Because I think it goes to this problem, which is there actually are constraints on the court. It’s just that the court is not constrained by it.
Speaker 2: Absolutely. To broaden the lens out a little bit in the executive branch of the government, there’s a kind of vast array of criminal laws governing conflicts of interest and related sort of ethical questions. There are really extensive federal rules and regulations in place to to say what you can and can’t do ethically. And then there are a whole structures in place. Every agency has ethics officers. They have ethics officers. They have procedures that you have to go through, particularly for higher level people that have to work with ethics officers in terms of what financial interests you have. It’s pretty Byzantine in some ways, but there are really a lot of pieces in place to make sure that people behave ethically. We could have a whole other conversation about why those didn’t always work when you had an administration that was set on getting around them. But it’s a very comprehensive structure and certainly for the sort of rank and file, they’ve got a lot to follow.
Speaker 2: Congress has a bit less in terms of what criminal laws apply, in terms of what rules there are. But there are ethics committees that each house of Congress has its own ethics rules, and there are procedures in place that we see happening today of members who run afoul of these rules and things that happen to investigate and to hold them accountable.
Speaker 2: The courts have less still, but they do have some. And, you know, in the lower courts, you have a code of conduct that explains what federal judges need to do in terms of transparency, in terms of avoiding conflicts of interest in each of the federal circuits, the sort of geographical kind of collections of courts that are unified. There are councils of judges who look into potential wrongdoing by their fellow judges. They take that very seriously. There are potentially issues with sort of peers judging each other rather than an independent body. But at least there is a process in place. The rules are less stringent, by and large for judges than they are for the other branches of government. And that’s a thing that we probably want to talk about.
Speaker 2: And then you get up to the Supreme Court and it narrows down further, because you do have federal laws that say that judges, including the Supreme Court, should not hear cases where their objectivity can reasonably be questioned. That’s a law. It does apply to the Supreme Court. There are transparency requirements that apply to the Supreme Court. They have to fill out financial disclosures. There are sort of bar requirements that lawyers have to uphold, and that applies to Supreme Court justices. So there aren’t no laws. There are definitely fewer than there are for pretty much anybody else on the. They do have rules. They have practices that they’re supposed to follow.
Speaker 2: I think one of the really problematic things is that the only person who enforces ethics requirements for a Supreme Court justice is that Supreme Court justice. There is no outside body that oversees the choices they make and they don’t oversee each other. And so I think that we’ve seen this throughout the government and probably people can look to places in their own lives that when you have people who are friends and peers providing oversight of each other, that’s probably going to be a little bit less effective than if you have a kind of objective outside body.
Speaker 2: But then you go a level up from that. Nobody wants to be a tough overseer of themselves, and nobody’s going to hold themselves to the kind of strict standards that they’re going to hold somebody else to. That’s just human nature, and that’s the crux of the problem. It’s not that there aren’t rules. I don’t think there are enough rules. It’s that there’s no enforcement of those rules other than what an individual justice thinks is appropriate for him or herself. And a few years ago, Chief Justice Roberts looked at these ethics issues and essentially said, trust us, we’ve got this. There has been some criticism, but we’ve got it under control.
Speaker 1: Yeah, and I think Elena Kagan also in testimony, certainly implied that the court was going to I think she said take a serious look at kind of codifying some ethics rules that it imposed on itself. And that hasn’t happened either. I think we should be fair and start with the presumption that there is a separation of powers problem here and that the court really does very jealously guard its own institutional prerogatives. It claims, and I think this is at the heart of John Roberts, just trust us, claim it really does I think feel that to give over authority to the legislative branch, to do any kind of checking is to see that the idea of an independent judiciary.
Speaker 1: Right. I’m trying to do the most positive construction of that argument that I can. One of the issues with court reform efforts really is that the court will doubtless say no separation of powers. You can’t tell us how and what to do anything. So I think that the way that gets spun, hears the negative construction of the same sentiment, is you’re just politicizing the court if you don’t just trust us. What you’re doing is turning the court into a political football.
Speaker 1: And as a consequence and this was, by the way, when President Biden’s commission on court reform, because actually they had some meaningful ethics reforms that they proposed. It wasn’t just court packing and term limits. They talked about some of the ethics rules and a lot of the folks even on the commission, but certainly a lot of the folks in the discourse were like, you can’t even talk about imposing any rules on the court because by definition, you’re delegitimizing the court and it becomes entirely self-fulfilling.
Speaker 1: And this really, I think, was manifest this year. I’ve been covering the court for 20 years. This is the first term that I saw everybody’s kind of curtain raiser. Their piece that they did on the first Monday of October wasn’t even about the merits docket. It wasn’t even, you know, oh, my God, we’ve got guns and the environment and abortion and religious freedom on the docket. The first two paragraphs were about the polling numbers that we started with that for the first time since Gallup has been doing polling, the court’s numbers are like high thirties, low forties, the lowest in history. Stunning numbers clear to Congress, but really shockingly dangerous numbers for a court that has no powers other than its legitimacy.
Speaker 1: And I think that part of the kind of collision that we are seeing now is that any attempt to say, you know, what would help these numbers? You know what would help when you have leaks at the court and there’s no inspector general and there’s no rules and there’s no actual standards or practices. What would help is to firm all those things up. And then you might not have a leak and you might not have justices flying out to the Mitch McConnell Center to say that they are not partisan. And any effort to do any of those things is spun as you have now become the problem you purport to be fixing. You are now delegitimizing the court.
Speaker 2: I think that we have probably gotten past the point where you or I or Congressman Johnson or. Anybody else is just going to sort of, by sheer persuasive power, prevail Chief Justice Roberts and the members of the court that it is in their interest and in the national interest to strengthen Supreme Court ethics and judicial ethics, because we’ve gotten to a place where these sort of accusations of partisanship are so quick to come and public opinion is already so poisoned.
Speaker 2: And I also don’t think that the court is going to directly respond to public opinion polls, and they probably shouldn’t, too. The judicial branch should not be responding to public opinion polls. But in my experience, at least, they’re scared of Congress. They don’t want to come in and testify to Congress. They hate that. They don’t want Congress meddling in their affairs. So I actually think that the more active Congress becomes on this, the more likely the courts are to do something on their own because they don’t want Congress coming in regardless of whether ultimately there would be a separation of powers fight. As to whether Congress really has the power to tell the Supreme Court it needs to put into place a code of ethics. The Supreme Court ultimately, I think, would much rather do it themselves. And I think that sort of this bank shot approach, that the more we can convince Congress to take this seriously, the better the chances that the courts will take meaningful action on their own.
Speaker 2: But the issue of Justice Clarence Thomas, who is certainly at the center of a lot of these discussions of judicial ethics, that Justice Thomas was out there very vocally saying that this leak that we’ve just had is going to decrease the legitimacy of the court. And whatever you think about the leak, that seemed somewhat sort of rich, given that it came just on the heels of us learning that Justice Thomas’s spouse, Ginni Thomas, was deeply involved in the efforts to overturn the 2020 election.
Speaker 2: And then Justice Thomas goes and not only considers the question of whether White House documents concerning January 6th should be turned over to Congress, and we don’t know. And probably Justice Thomas didn’t know whether any of those documents could involve or implicate Ginni Thomas. Not only does he not recuse, but he’s then the one vote against turning those documents over with even all of the justices appointed by President Trump saying that those should be turned over, which looks awfully problematic for a justice who has such a glaring conflict. It’s hard to imagine anything that both delegitimizes the court and calls up the threat to democracy that can come from a court that is not giving full consideration to ethics problems.
Speaker 1: I think I’ve probably written eight or nine times on this in the last few months because to me, the real mystery of this term is that any other term that I’ve ever covered, I’ve made assumptions about. Look, if the court does this in case X, they’re not going to do this in case why, if they have a way to do a small swing on this big ticket issue, they’ll do a small swing.
Speaker 1: For all of those reputational interests and institutional interests we talked about at the beginning, this term is like nothing I have ever seen. My friend Leah Lipman of the Strict Scrutiny Podcast just calls it the hashtag YOLO term. Like, it’s just everyone’s going big on everything all the time. And the reason that’s a little bit surprising is if you have nine justices who have integrated and internalized the institutional concerns that you and I ascribe to the chief justice and Justice Breyer up top, they go all the way back to Chief Justice Marshall and the whole kind of nature of what the court is from the framing.
Speaker 1: If you’re worried about the public just saying, you know what? No, I’m just not going to abide by this. Then being the hashtag YOLO Court is really problematic. And so what I have always seen is historically a court that kind of does it with subterfuge, with half measures. You don’t necessarily go all the way. And that helps mollify the public into thinking you’re behaving like jurists and not like activists. This term on almost every single access that you’ll get that’s gone.
Speaker 1: And so it’s not just the shadow docket decisions that are on really consequential questions, whether it’s the COVID restrictions, deciding that on the shadow docket, whether it’s deciding the eviction moratorium remain in Mexico, SB eight, the Texas ban to be all that happens on the shadow docket. People are freaking out when the term starts. They’re like, Show your work. Why don’t we see what you’re doing? How come you’re now citing other shadow docket cases as precedent and we don’t know what the law is. So that’s one thing. Then we have just. This is jetting around, giving unfortunate, very polemical speeches. That’s another thing.
Speaker 1: Then we have the sequence of Ginni Thomas revelations that aren’t just the sort of enmeshment in January six, but also for the Jane Mayer reporting and the reporting in the New York Times about just how deeply she’s involved in groups that present amicus briefs to the court in helping push for outcomes that Clarence Thomas will judge on. So it’s not just the texts and the emails. All of that happens. And then we get the court telling us, as Justice Thomas did in his remarks, that this is the fault of the press and this is the fault of politicians.
Speaker 1: And so if you just go back to my sort of predicate from the beginning, which is illiberalism thrives by trashing institutions. Not only does it feel to me and this is just the mystery that I don’t understand, that there’s a real energy for trashing the court itself in the public estimation right now by the justices themselves. But there’s also seems to be real enthusiasm for trashing Congress, trashing the president, trashing the press. All of these pillars of constitutional democracy are to blame. And so that’s the piece of this that is a mystery to me. And it’s why I can’t understand that, given these tanking polling numbers, given the deep public anxiety around that, how the justices behave, that the justices don’t pull back, that there doesn’t seem to be the impetus that you and I would have predicted to pump the brakes and maybe wait for a year or two.
Speaker 1: I think the only other thing I would say is this the ethics rules used to really quite literally be stick your wife in a closet, give her a doughnut and don’t let her talk to anyone. I mean, okay, not literally, but they were horrible and they were sexist. And they really did rest in a notion of women as not agents in their own right. And that didn’t get actually fixed until fairly late in the game.
Speaker 1: So there is one way to look at this Clarence and Ginni problem, which is this is just sexism and that’s what you often hear. Why do you impute Jenny Thomas’s views to her husband? Why can’t they be separate, sort of moral and political agents? How sexist of you to assume that they’re sharing a brain? And I find that to be a really not helpful way of thinking about this problem.
Speaker 1: But I guess I’d be very curious about the legitimate concern that really did, I think, haunt the judiciary in the seventies and eighties. This was a Judge Reinhart at the Ninth Circuit. This is not uncommon for jurists to have spouses who do advocacy work. It seems to me the solution isn’t to say, therefore, there’s no ethics rules. But I’m just curious what you think about that.
Speaker 2: It’s a real question, right? It’s not uncommon to have judges and justices who have spouses, who are lawyers and who are high powered. It’s not necessarily male judges with wives who do this. It goes both ways in terms of gender. But yes, there was this sense that the justices were men and their wives would be quiet. And that’s not a good thing.
Speaker 2: I do think that there are a lot of solutions to that, and we’ve seen that over time. You have people like Chief Justice Roberts, and I think this is the case with Justice Kavanaugh, too, who have spouses who have high powered careers and have taken a step back from active litigation or from anything that could look like it could present a conflict of interest and have done other, you know, meaningful things, but not things that create those problems.
Speaker 2: Even that I think you could say, well, that’s not fair. Another has been you’ve had certainly had judges whose spouses were active litigators on issues of public concern, who have been pretty aggressive about recusing when anything around what their spouses are doing comes up. And that works pretty well. You don’t want too much of that in the Supreme Court because it’s not like there’s another judge who can come in and sit in their place. I think even the decades that that Justice Thomas has been on the court are in some ways instructive. Ginni Thomas has been a political activist since before she married.
Speaker 2: Now, Justice Thomas. And yet you didn’t see that many of these issues in the past. And there’s a sort of brazenness that has happened in the last few years of participating actively in organizations that submit amicus briefs to the court, which creates a much more direct conflict of interest. And then this business of participating in trying to overturn the government, obviously that’s new and different and deeply problematic. And you’re not at all going back to old and sexist notions to say you shouldn’t be doing that stuff probably at all. Certainly in terms of. To overturn the government. Nobody should be doing that. But to the extent that you have spouses involved in some very specific issues that are coming before the court, justices increase public trust if they take an aggressive approach to recusing rather than an ultra minimalist approach to recusing.
Speaker 2: And so I think that is a sort of certainly in the recent congressional hearing about judicial ethics from the sort of defenders of Justice Thomas. There are a lot of accusations of sexism, accusations of racism. And I think those are really unfortunate and really ways to get around dealing with the very, very real issues here.
Speaker 2: I think in terms of what’s changed, why is this happening now with the court and with Justice Thomas particularly? I do think we are in a place where our politics are so polarized that judges and particularly Supreme Court justices no longer feel like they need to or they can do what theoretically at least and in some ways really happened in the past, which is they went through these pretty rough confirmations and then they were on the court and they tried not to look back and they tried to just do their thing independently. And now it feels that we’re all part of the culture war, and that includes the justices of the Supreme Court, and they’re going to fight to the death to get to advance their side. And I think that’s a pretty unfortunate place to be. I hope there’s an ability to pull back from that. And it seems like in some ways real ethics rules, maybe a pretty easy way to pull back a little bit from that.
Speaker 1: The thing that I think is really tricky is that the lodestar here is the appearance of impropriety, right? It’s the appearance of bias. And you don’t have to recuse because your spouse invested in X or Y, and therefore you’re going to profit. You have to recuse because your spouse invested in X or Y and it’s before the court.
Speaker 1: It’s almost like the rules themselves are a metaphor for what’s breaking down, which is this is an objective test. It’s not a subjective test. It’s not I know that my partner may have gone to like speeches on January six and come home because she was cold, but that she was no way involved in this. That’s just not the question. The question is, does an ordinary person walking into your court think they’re going to get a fair shot? And that sounds like it’s so soft and squishy and inchoate that it’s unenforceable.
Speaker 1: But as you said, people have been following recusal rules around finances, around interested family members for a very long time. We’re pretty good at it. And so to say that this can’t be done or that any attempt to say, hey, the average American looking at this conduct on the part of your spouse wouldn’t want you to then sit on a case that directly may have direct legal consequences for your spouse. It looks and smells awful. And it takes us back really to where we started, which is if you care about the legitimacy of the court, it doesn’t matter what the justices feel about whether they are being fair or not. What matters is looking fair and that’s a really high standard.
Speaker 2: I will talk for just a moment about the commission that President Biden appointed, because that commission did a lot of kind of issue spotting. It said here are things that are worth considering. It didn’t do a lot of kind of putting their thumb on the scale of what actually should happen. But they came a little closer to doing that on ethics rules, where they really talked about the weight of opinion pushing, for instance, judges and justices not owning individual stocks, which seems like a pretty easy fix. We’ve had dozens of cases where judges actually considered cases where they have an ownership interest. That’s certainly going to decrease public confidence in the courts. And it’s an easy fix. It was maybe didn’t go as far as I might have hoped it would, but still a meaningful kind of piece of pressure on either Congress to act or on the courts to regulate themselves in Congress.
Speaker 2: You’ve got some really good pieces of legislation out there, one which is called the Supreme Court Ethics, Recusal and Transparency Act, which, among other things, it requires the Supreme Court to adopt a code of conduct, a set of rules that applies to itself, which it doesn’t have right now that would be incredibly meaningful. It requires justices to say why they are recusing in a case or whether or not recusing in a case and increases disclosure requirements. So that’s really meaningful. That’s a Congressman Johnson and Senator Whitehouse has has a version of that as well.
Speaker 2: And then there’s this other bill called the Judicial Ethics and Anti-Corruption Act, which is Senator Elizabeth Warren and Congresswoman Jay Powell in the House. And that also does really meaningful things, including banning judges from owning into the. Jewel Stack’s imposing code of conduct that applies to other judges on the Supreme Court, creating a strengthened recusal process, among others. Those would be really meaningful, and I think it’s pretty important for people to express their support to those members of Congress, to reach out to whoever is your member of Congress to say, hey, this is important.
Speaker 2: We want to see movement on this, because I think that it may be difficult for Congress to pass this legislation. It’s possible. And I think public pressure is going to be a huge part of that. But even if the legislation ultimately doesn’t pass, if there is real movement. Committees consider them. Committees report them out. One House or another votes on them. But there are more hearings, any of those things that are more likely to happen if people call in and push for it, that’s going to put real pressure on the court to act itself before Congress does more, which is a thing that they don’t want. So I think calling Congress expressing support for those pieces of legislation could really move the ball forward and we could see some real progress.
Speaker 1: And that is a wrap for this episode of Amicus. Thank you so much for listening and thank you so very much for your letters and your questions. You can keep in touch at Amicus at Slate.com, or you can always find us at Facebook.com slash Amicus podcast. Today’s show was produced by Sara Burningham. Alicia montgomery is vice president of Audio and Ben Richmond is senior director of operations for podcasts at Slate. We’ll be back with you with another episode of Amicus next Saturday. Until then, take good care of yourself.