The Canaries in the Coal Mine of Justice

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S1: This ad free podcast is part of your Slate plus membership.

S2: Every time one of these decisions comes out from the court with, you know, some tiny little concurrence, it’s such an insult to the enormity of the issue and to the depth of the record that was marshalled before a federal judge to demonstrate the urgency of the situation.

S3: For too long, we have approached the discussion of the courts and the debate on individual nominees as if this is something playing out at a Princeton eating club.

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S4: Hi, and welcome back to Amicus. This is Slate’s podcast about the courts and the law. I’m Dahlia Lithwick. I cover those things for Slate. And in a few short days, the 2020 presidential election will take place in the midst of a pandemic among a badly polarized electorate. And with rising threats of vote suppression, vote stealing and vote uncertainty, the judicial branch, usually tasked with exerting a stabilizing adult in the room vibe on all this, has spent the week doing well, anything but.

S1: On Monday, Justice Amy Connie Barrett was hurriedly sworn in after failing to garner a single vote from a Democratic senator.

S5: Ladies and gentlemen, the president of the United States, accompanied by Justice Clarence Thomas and Justice Amy Connie Barrett.

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S1: Footage of the ceremony at the White House. Justice Barrett ascending to the South Portico with the president pausing for the photo up at the top of the steps, candles flickering behind them. It was all repurposed as a Trump campaign. And within hours, the Supreme Court then handed down a rapid fire series of orders in voting cases out of Wisconsin, Pennsylvania and North Carolina. At least three justices are now putting forth arguments that have nothing to do with vote fraud, but instead are making broad claims about state courts authority to interpret state law. And the implication, certainly that ballots that arrived just a second after Election Day will carry some presumption of illegitimacy. This election was already a nail biter, but the possibility that the courts could invent a reason to start just pitching mail in ballots has been the source of this week’s legal breakdown. Justice Barrett has not participated so far in these votes, but her participation in next week’s could truly, truly change everything. So that’s happening. And we are going to talk to Sherrilyn Ifill of the NAACP Legal Defense and Educational Fund about all of it later on in the show. We’re also going to hear from Brian Fallon. He’s a former director of public affairs at the Justice Department and Senate staffer to Chuck Schumer, who has turned his hand now to court reform cofounding demand justice and working to arm progressives in the asymmetrical warfare. Over the course. Slate plus members are going to hear that interview in full. It is a fascinating insight in how federal judicial selection sausage actually gets made and how progressives might just tackle this entire system failure head on. But first, to the polls and to the courts. Our very first guest today is Sherrilyn Ifill. She’s going to help us understand the connection between the courts and the law and race and the elections. Sherrilyn is the seventh president and director counsel of the NAACP Legal Defense and Educational Fund. Among her successful cases that she has brought was a landmark Voting Rights Act case, Houston Lawyers Association versus Attorney General of Texas SHERRILYN 2007 book on the Courthouse Lawn. Confronting the legacy of lynching in the 21st Century reflects her lifelong professional engagement in issues at the intersection of race and American public life. And I have to note, she was also just named one of Glamour magazine’s Women of the Year, which I love because I think it really does symbolize the ways in which women lawyers have become the heroes of this age. So, Cheryl, and welcome back to Amicus.

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S5: Thanks so much for having me. I’m thrilled to be here.

S1: So, Sherrilyn, let’s start with this. When I was preparing to talk to you, it occurred to me that I just wanted to ask you how many times every day you think about Thurgood Marshall. I mean, I know those are big shoes that you fill. I also know we have in some ways slid backward from the America that he thought he was bringing us toward. Let’s start with the speedy nomination, the. Formation, the elevation of Amy Barrett to the court this week. Thoughts on that? I know a lot of people experience that Monday night vote and quick coronation as a body blow.

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S5: Yeah, it was difficult. I can’t deny that on a multiple levels. You know, you referenced her speedy confirmation. First of all, the what I have called indecency of of naming someone to the seat so soon after Justice Ginsburg had passed away, the ignoring of Justice Ginsburg’s dying wish, which, interestingly, Judge Barrett was never asked about at her confirmation hearing, despite expressing her great respect for Justice Ginsburg. So that that was rather indecent. We had framed the legal defense fund. We had framed our objection to her not only as an objection based on her record and what it might mean for civil rights, but also we just refused to participate in what we thought of as an effort to engage in kind of magical thinking as though we were not in the middle of this pandemic that is decimating black and brown communities in particular across the country and for which there is no new relief bill that is desperately needed. And so we were all supposed to pretend that that wasn’t happening and that it wasn’t urgent and what that means for black people. So let’s leave aside like just civil rights as it gets to the Supreme Court. There was something very present facing us. It’s been estimated that 40 percent black owned small businesses will not survive this pandemic, 40 percent. So that’s the context in which we were watching a party in the Rose Garden and watching the Senate go through the motions as though this was perfectly normal. And then, of course, the other thing that was happening is that we were in the middle of an election and people were going out and casting ballots in early voting. We were in litigation trying some of the restrictions around absentee voting and in particular in Alabama in a case that did end up making its way up to the Supreme Court or even allowed the 11th Circuit to end curbside voting in Alabama, which was another way to keep the population safe. So we’re desperately trying to keep the black population safe from exposure to the covid-19 pandemic because of our extreme vulnerability and increased levels of infection and death of all of that. There was this nomination of Amy CONI Barrett, and we were all supposed to join this magical choreography as the very lives of the people that we represent. Yaffe The people in our communities was not at stake and was not being ignored by the Senate. So I just feel the need to just say that before we start talking about the dynamics of the court. And so in that sense, yes, Thurgood Marshall was very much front of mind for me, not just as a Supreme Court justice, but as something so committed to the reality of the lives of black people in his work and who even in his position on the court, was able to speak in his opinions in ways that that were real, that were present about race and about justice. And it almost seemed that the way this nomination was going forward perfectly exemplified that divide, the divide between what the court wants to say about itself, the the pomp and circumstance, the the choreography, the all of the words and the reality of injustice. So it was it was difficult and painful.

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S1: I just want to stay on this issue for one more second, Sherrilyn, because the other thing that I experienced viscerally was that the same cynicism around replacing Justice Marshall with Clarence Thomas was really manifest in the cynicism of saying, oh, Amy. CONI Barrett effortlessly slides into the legacy of Ruth Bader Ginsburg because she’s a woman, because she has children. And I don’t if felt like trolling in much the same way that the Clarence Thomas the effort to sort of make this really facile comparison felt like trolling. But this also, I think, has to be noted that the notion that the person who is probably going to undo most of the judicial doctrinal legacy of Ruth Bader Ginsburg happens to be a woman, and therefore it’s an affront to the memory of Ruth Bader Ginsburg. To object to her felt like a piece of messaging that was just a deliberate slap in the face.

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S5: Yeah, and it was kind of retro to your point, because for those who can remember, the nomination of Clarence Thomas was very fraught in its. And it’s early days because he is black, right, and the idea that he was going to be replacing the first black Supreme Court justice, but was also black, made some people very cautious. One of the things I’ve always said that I’ve been very proud of is that I was then a young lawyer at the Legal Defense Fund, and we did what we always do. We evaluate the record of Supreme Court nominees and we did. We read every single thing he ever wrote. We looked at every matter that he was involved and we looked at all of his work and came to the conclusion that we had to oppose his nomination. Now, this was difficult for us because we knew that people would say, you know what, they’re just opposing him because, you know, obviously Thurgood Marshall was their founder and this is kind of sour grapes. And so we were very careful about our approach to his record. This is before the allegations involving Anita Hill came out. And we issued a report and we opposed his nomination, which was a big deal because even African-American organizations were not opposing Clarence Thomas. And I’ve always said about that No. One, that I was very proud of it, that we stuck to our principles and recognized that he was a danger and that in our view, he at that point certainly was not someone we could support to sit on the Supreme Court, but also that in some ways what happened in that nomination kind of freed us. I don’t mean just LDF. I mean the black community, because we have been so oppressed that we very often will put our arms around members of our community who are being in some way attacked. Right. Particularly by forces of the right or by the white people or and so we kind of try to keep everybody in the community. And that was played out on the national stage. The confusion about how to deal with Thomas, especially after the Anita Hill allegations came out. But what emerged from that was I thought the black community learned we actually don’t have to support every single black person who comes to prominence just because they are the first or the second or because they’re going to be the most powerful person in this or that position, that we actually have reached a point of political maturity in this country, that we have the right to say, yes, that person may be black, but they do not, in fact, reflect the interests of most black people. So I thought that was an important milestone. So I say all that to say. It was kind of interesting then to come back to the Inequality Barrett nomination in which the playbook was the 1993 playbook. It was like old, you know, like like nobody was supposed to notice that she’s like the opposite of Ruth Bader Ginsburg, you know, and instead we were supposed to participate in the kind of bizarro world confirmation in which we were supposed to pretend like this is all part of the same thing, when, in fact, it is not part of the same thing. And I appreciate that people just weren’t having it. And people were very clear that that’s not what this is. And you can create your own narrative. You can create your own playbook and your own PR campaign around your nominee. You’re entitled to do that. And they did that. I don’t think it was particularly effective, at least across the board. I think it was effective for the base that would support her. But I don’t think it carried resonance beyond that.

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S1: I want to talk before we leave our for one quick second, I want to talk about two places where she proved pretty prophetic and one of them you’ve already talked about, which is voting while black during covid. One of the things she wrote in the primary in the Wisconsin primary was that people were going to be asked to endanger their life and go vote in person. That was one of the last really sharp things she wrote. But she also wrote that dissent in Shelby County, which, my God, we should all have tattooed on our foreheads right now. And I wonder if you know, it’s funny, because I think the knock on Justice Ginsburg and we don’t need to go into this, we’ve done it on this show before, is that she didn’t always see race the way she ought to have seen race. But, boy, she saw race both in what it was going to be like to be a black or brown voter standing in a line in the cold in the next wave of a pandemic because you were not protected by your own government. And she, boy, she saw what was going to happen after Shelby. And I wonder if you can talk a little bit about because you mentioned, Sherrilyn, that she did in that sense share with Thurgood Marshall this vision of the world outside of the dusty law books that was really urgently important to her.

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S5: Yes. In fact, I would even stress that she was often compared to Thurgood Marshall. And I’ve done it myself, just in terms of the creation of an area of law that didn’t exist before they started really creating it. Right. Marshall really kind of constructing and creating not only civil rights law with his team, he certainly didn’t do it single handedly, but also creating the concept of the civil rights lawyer, by the way, which I always point out. Right, that that was actually something created that didn’t exist before, which I think is pretty powerful. Women’s rights law was was an area of law that Ruth Bader Ginsburg founded. One of the things I always personally loved about Justice Ginsburg is that you would say, I can’t be compared to him. Because when he was doing his work, he was risking his life, he was risking his life, going to litigate those cases in the South, and every time he was trying to make those advances, he was doing it and peril to himself. So that, first of all, tells you that she understands the difference between being in New York. Correct. And working at the ACLU and litigating women’s rights cases. Right. And having to take a train or plane to South Carolina, to her in Texas, to Lakeland, Florida. Right. And having to stay several days, nights, weeks to try cases to drive through country roads on your own and to understand what it meant, what it meant to be a black man, being a civil rights lawyer, litigating those cases. And that already tells you that Justice Ginsburg was very finely tuned to that reality and. That reality is what she expressed both in shelbie and in the Wisconsin case, where she talked about voters having to choose between their health, their life and voting and recognizing that black voters were particularly vulnerable to covid that week, that the Wisconsin decision came out. It just radicalized me that week because a day before the Supreme Court decision came out, the report came out that although black people constitute twenty eight percent of the population of Milwaukee, they were at that point comprising 70 percent of the covid deaths. It just blew me away. And so then to see. People standing in the lines, black people standing in the lines with the Mattsson, I’ve just said it just radicalized me and powerfully important ways it radicalized me one in that we were going to do everything possible we could to increase absentee voting. And we filed five cases trying to relax absentee voter restrictions in the South. But it also reinforced for me and I actually run the pictures in my mind a lot now in this moment of tremendous strain and crisis, how absolutely resilient and badass black people have been in this period and I fight for them. So it was powerful and Ginsburg’s words in that case and then in the Shelby case. Speaks to that, it speaks to the protections that black people need in a system that has been engaged in voter suppression continuously throughout the day. I know that everybody is noticing voter suppression now, but I started LDF as a voting rights lawyer in nineteen eighty eight. So, like, seriously, this has been going on forever. And a reminder that particularly in the Shelby case, you know, with Section five, which is the preclearance requirement that required jurisdictions with a history of discrimination to get permission from a federal authority to make voting changes. Justice Ginsburg, wonderful line about you. Don’t throw away your umbrella because you’re not getting wet in a rainstorm. Remember that what the Senate said in enacting Section five was a Section five was designed, they said, to not only address. The forms of discrimination that they were currently seeing in nineteen sixty five, but also designed to address what would be, and I’m quoting now, the ingenious forms of discrimination that would be developed in the future. It’s one of the most important pieces of civil rights legislation for that reason. Here it is. You had the United States Senate recognizing that this wasn’t going to stop and that it was going to shape shift. They knew that there would be things that they hadn’t even thought of in nineteen sixty five, that those jurisdictions, mostly in the South, were going to come up with to try to keep black people from voting. They knew that it wasn’t going to stop even with this legislation. And so when we then fast forward to 2013 and the Supreme Court here in the Shelby County case, and you hear, you know, Justice Roberts and you hear Justice Kennedy oral argument, you hear them refusing to even credit the senators who actually knew and who were trying to get out ahead of what they knew would be the changing landscape. They knew it would look different. They knew it wouldn’t look the same, but they knew that it would continue to exist. And Justice Ginsburg metaphor of the umbrella and the storm perfectly combines with the Senate’s intention of getting at the new ingenious forms of discrimination that we haven’t thought of yet, that just because you’re not getting wet, it’s not raining. And so just losing that ability on the court with Justice Ginsburg’s passing means we now no longer have a civil rights lawyer on the Supreme Court. Right. We had a civil rights lawyer, the Supreme Court, all the years that Marshall was on, then we had Ginsburg. Now we have no civil rights lawyers on the Supreme Court. It means that we are missing that window, that perspective, that ability to speak with clarity about the challenges faced by people who live at the margin and who live at the bottom and who are subject to ongoing and systemic discrimination. Good to speak to it in that way, in that way.

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S1: And Sherrilyn, this dovetails exactly with what you said about even the event announcing in Bikini Barritt, because there was a willful blindness, as you’re saying, to the actual suffering of huge communities of brown and black people, not just economic suffering, the actual loss of life. And it’s interesting in reading, you know, I’m thinking of some of the the opinions and dissents this week even coming out of the court as they make these late night barely analyzed decisions about, as you said, a whole host of efforts by various states to make it a little bit less lethal to vote. And the ways in which I’m thinking of Justice Gorsuch, I’m thinking of Justice Cavnar seemed to dismiss the idea that actual you know, Gorsuch says it’s not a natural disaster under under any construction of those words, you know, putting putting covid and the language around the suffering of covid into scare quotes. And it’s really that strange willful blindness of who is suffering and the extent of the suffering that again sticks in the craw, because that’s not what you’re seeing at all. These are not words that go in Scarecrow’s quotes. This is the truth. Right?

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S5: Well, so now this relates actually to, I think, another issue that in some ways is also connected to selecting someone like Amy CONI Barrett to sit on the court. I can maybe best exemplify it through our Alabama case and where we challenged Alabama’s absentee voter restrictions and Alabama, in order to vote absentee, you had to get to third party witness signatures on your ballot. You had to include a copy of your government issued photo I.D. And actually, before we filed our suit, you also had to have an excuse for why you going to absentee vote. And so so Alabama did relax in the primary the need to have an excuse for absentee voting, but they still insisted on the two witnesses and the copy of your photo ID. So here we are in the middle of a pandemic in which many of our clients are suffering from pre-existing conditions. They have COPD, they have asthma. So they have seen their grandchildren. Right, because they’re following CDC guidelines that they need to remain socially dist., that they shouldn’t be with their families. This is incredibly painful for people. And yet they’re doing it. And yet Alabama saying, I need you to interact with three people to cast that ballot. You interact with two witnesses. And the secretary of state said on the on the copy of your government issued photo I.D., because we said, well, they don’t have scanners in their homes are elderly people. They said, well, they just go to Kinko’s. Oh, good. Yep. So that was that’s his prescription. So we thought we challenges. And then there were counties in Alabama that actually tried to do the right thing and offer curbside voting in Alabama law that prevents curbside voting. But the secretary of state decreed that it could not happen, that curbside voting couldn’t happen. So all those three things were part of the challenge. The district court issued an opinion that is detailed. It is detailed in the reality of covid. It is a result of who is suffering from covid in Alabama, who is vulnerable to Colvert in Alabama. It is detailed in its conclusion, based on all of the facts that it details and the opinion that the state has failed to show that its procedures for absentee ballots, in fact address potential issues of voter fraud. I mean, it lays it out. One hundred and ninety seven pages. That’s how detailed it is. 11TH Circuit states, the district court’s injunction, and we know what the Supreme Court did, it actually one of the curbside voting Supreme Court allows the state to get rid of that two. What’s important here is you mentioned it, you said barely analyze decisions, so we’ve got this whole shadow docket, right, in which. The court is not even going to really tell us why. Right, so, so, so now you’ve got to contrast it with, you know, because our lawyers are litigating in these cases. They’re presenting the witnesses. They’re presenting the experts. They’re doing the job of building a record like Thurgood Marshall did. And we get out of it one hundred and ninety seven page opinion right from the from the trial court. This is true in the Alabama case. Think about the Florida formerly incarcerated persons voting case, another one where we get this detailed district court opinion. Right. And the Supreme Court can’t be bothered with. Issuing a decision that gives us some clarity about what the hell they’re talking about, what we are doing right now, and I resist it because it’s I find it so outrageous that we’re piecing together from concurrences and from sense of grants of states what they really mean. Was Purcell really in play here? Is it that they believe the state legislatures shouldn’t be disturbed? But if it’s a state board that’s different, like we’re doing all of this and you contrast that to the stark reality that you could read of one hundred ninety seven page opinion from Judge Abdul Calon in Alabama. And it’s outrageous. It’s once again trying to get us to pay no attention to the reality of what is, in fact, happening on the ground and what this really means to black and brown people trying to vote. And instead we get these tiny little concurrences in which, as you say, there’s the scare quotes. This is not a natural disaster. Which natural disaster we had in the United States has killed two hundred twenty thousand people. But but there’s a way in which they get to in these in these very brief little essays create a new reality, right. That wipes out the one hundred and ninety seven pages of detailed reality on the ground, built on the record, presented by actual practicing attorneys. And I say that it’s connected to selecting someone like Amy Tony Barrett, because it’s not unconnected to my just saying there are no more civil rights lawyers on the bench. One of the things I loved about Justice Marshall and that others said about him, and that was also true of Justice Ginsburg, is the ability to know how to read and respect the record. Yeah. So for those of us actually practice law, that’s kind of important, right? We’re in there. We’re civil rights lawyers. We know all the inferences don’t go in our direction. We know the laws are not all in our favor, but we are playing the game the way it’s supposed to be played. We are coming in and we are bringing good, strong cases. We are building a sound, solid record. We’re proving our case. And when the court swats that away with some fear that doesn’t engage that reality that a district judge was able to see and find and articulate, now we have a kind of systemic issue and the begin then to continue to add to the court people who don’t have it, not just the Supreme Court. By the way, we’re adding courts across the country at the district court and circuit court level over the last three years. Judges who have no litigation experience, judges who don’t have to deal with a record, never built a record, who never really had to engage at that level. And I think that’s part of the recreation of a new way of approaching the law that is also important not to lose sight of every time one of these decisions comes out from the court with some tiny little concurrence. It’s such an insult, really, to the enormity of the issue and to the depth of the record that was marshaled before a federal judge to demonstrate the urgency of the situation.

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S1: And in some sense, Cheryl, and I really think it’s important what you’re saying, because we see it in the census case. We see it time and time again. It’s not just the election, you know, these last minute election cases. It’s just this persistent sense that we can just toss hundreds of pages of findings of fact, hundreds of pages of analysis of the law and simply import into this. I mean, in some of these cases and I don’t want to belabor this week’s, you know, decisions and orders out of the court, because, as you say, in some way, you’re kind of reading tea leaves. You’re reading the vestiges of half formed arguments, you know, just as Kavanagh’s dissent in the Wisconsin case riddled with error that he had to correct. This is just not the way to do it. And I think it further erodes confidence in the courts. But I will say the one merit’s thing that does seem like a turn to me that I want to question you about is this new language we’re seeing coming out of Justice Alito who’s saying the issue isn’t even vote fraud anymore. It’s this, quote unquote, cloud of doubt that comes about when ballots are counted on November 4th. This isn’t anywhere in any record that I know of. This is not a legal theory. This is as best as I can tell Cheryl and tell me if I’m wrong. This is Donald Trump’s sense of entitlement to have an answer on November 3rd because he wants one that is now somehow being imported into judicial doctrine. And we’re seeing it from Justice Kavanaugh. We’re seeing it from Justice Alito. It’s not even a legal argument. We’ve had military ballots for a very long time that are counted after Election Day. So I really want to stop for one second and talk about that turn, because that’s not even about voter suppression anymore.

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S5: Yeah. So I’m really glad you brought that up, because sometimes I worry that we miss the kind of chilling moments that constitute some some some new danger that has been introduced. And you’ve surely hit on one. Where is this cloud of dust? Where is all of that? That is a political argument that has been raised by Donald Trump. It’s a disinformation campaign that has been executed by Donald Trump. You know, where where Trump is basically creating. The impression that there is something illegal, fraudulent or unusual about continuing to count ballots after Election Day, when that’s how it’s always been done, as you point out, military mail in ballots are counted after Election Day. Absentee ballots are regularly counted after Election Day. People who voted provisionally on Election Day are coming in to secure their ballots during the week after election and usually the entire week after an election. Those ballots are being counted in races that are not incredibly close. It may not change the outcome, and therefore lots of people don’t pay attention to it. But in races that are incredibly close, it can be quite important. And I’ve been involved in some of these circumstances where it matters the count of those ballots. But Trump has been running this drumbeat that somehow there’s something unusual about that. This is part two of the disinformation campaign he started in the spring when he realized that many organizations were fighting to make absentee ballot voting easier, certainly for black voters in our in our case, the case, the Legal Defense Fund and then Trump’s disinformation campaign about absentee voting. What he suggested was something new, unusual, illegal, fraudulent and so forth, even though he’s done it a million times. And then Bill bought the attorney general glommed on to that and said, yes, yes, foreign powers may be able to somehow do something with that. So so so first you have the disinformation campaign to discredit the idea of absentee voting. And then you have part two of it discrediting counting the absentee votes after the election, and then you have kind of hijacked narrative into both the opinions of Alito and Kavanaugh. That foreshadow their embrace of this political theory. This is extraordinarily dangerous. This is, as you say, not introduced into the record in any of these cases, no evidence of this, and yet somehow this sneaking suspicion and it should be a sneaking suspicion to Kavanaugh was involved in the Bush versus Gore litigation or to a Makone Barrett, who was involved in the Bush versus Gore litigation in a limited way, but nevertheless was involved in the question of whether or not absentee ballots were legal. Particular absentee ballots were legal after the election. They know very well that absentee ballots are counted after Election Day and they know the significance of having those ballots counted. And yet we’re seeing the indications, we’re seeing the hints that this particular form of disinformation is likely to be resuscitated in the decisions that are likely to come over the next two weeks as the results of the election law challenge. This is so scary. This is so dangerous and it has to be called out.

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S1: Sherrilyn, I feel like if I could put a caption under the face of yours that I’m seeing on Zoom, it would say something like it was always broken down. Yes. And I feel like, look, this has been a year in which a lot of Americans have slowly begun to maybe start to understand racialized policing. Right. Started to understand how broken the for profit prison system is, how broken felon disenfranchisement all of this is happening. I know for you it must be like dudes. This has always been the case and that is certainly the case for voting. Right. We’ve had Carol Anderson on this show saying if you were black, you always stood in a line. You always have the risk of polling place closures. You always had all these risks. And the fact that white people are starting to realize all these things doesn’t mean that it’s only broken now. It’s just that we’ve only stumbled into the realization that these systems in some ways were designed to be this broken. And I wonder, A, how frustrated you are that it took us to this, you know, to an election that may just not function, but also all the ways in which the public is finally coming to understand what it is that you’ve been doing it LDM at a moment when this is not new. This is not new for you at all.

S5: No, no, it’s it’s not. There’ve been these interesting conversations about voter intimidation, which, you know, I would say in my time as a civil rights lawyer, this is the year when I’ve been more concerned and alarmed about the possibility of physical voter intimidation than than I ever have. And some people have said, you know, well, we want to be careful because we don’t want to scare people away from voting. And and I’ve always replied with, you know, black people are the only people in this country who actually routinely risk their lives to vote. In the south, even that’s not new, and one of our clients said it in our Alabama suit, we remember risking our lives to vote and he was talking about covid. He said, I thought that was over. Right. So the idea that you actually would risk your life, stand in a line and risk your life to vote, whether it’s from covid or from Sheriff Jim Clark, that is a uniquely black experience in this country. So that’s the reality.

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S6: The second piece is what did Lani Guinier describe it as the canary in the coal mine, the miners canary? I am only frustrated if at this point white people don’t understand that the experiences of black people and what civil rights lawyers are privileged to see are the flaws in our democracy are the canary in the coal mine for our entire society. That we actually are privileged to see the flaws and the cracks in the foundation of our democracy, and if you actually listen to us, instead of making it as though our issues are some niche issues that belong somewhere on the side. Or turning issues that are at their core issues about race into issues about partisanship, when, in fact race lies at the core, if you were so God awful determined. To not talk about racism. And if you were not so determined to marginalize what civil rights lawyers know as you create your hierarchy in our profession, of who are the people who really know what’s going on, then you would be better equipped and in a position to repair these cracks in the foundation that ultimately the whole house down.

S5: Yes, they’re doing it to black people, of course. But don’t you think that it’s damaging the entire foundation of our democracy and now we can see it? The perfect example is our public education system, which we basically trashed rather than share it with black people. OK, so we had a separate but equal system Supreme Court, there’s got to be an in the system, what do we get? We get massive resistance, right? We get a concerted effort to avoid this. Why people decide to create their own academies. They closed the schools in Prince Edward County for five years rather than integrate, like they’ll do anything not to comply with this decision. But you know what, a public education system is actually a key foundation, a key pillar of a strong democracy. What the Supreme Court said in Brown vs. Board of Education was not just about segregation. They said education’s most important function of state and local government. And it is the very and I’m quoting, foundation of citizenship. So any in any ways that you choose to damage the public education system, you are damaging the foundation of citizenship. So now we fast forward sixty five years later, does it look like our citizenship is deeply damaged? It is.

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S6: It is so all of these things that we think we can talk about in this separate little bucket as though it’s about race, all of the willingness to remove investments from public life so that people will feel like those people aren’t getting free things with education, public universities, public transportation, all the things that I was privileged in that period to grow up with, that we’re robust and strong that have been starved because there is a racial narrative that lays the top of it. All of that has weakened our democracy for everyone. So, yes, this is we’ve known this, we’ve seen it, I’m happy that people’s eyes are open now to issues of police violence, but I’m only distressed if people are willing after they feel like the crisis has passed to go back to the same thing. I’m only frustrated if people are not willing to recognize that they need a broader set of information, of a broader universe of information to understand this country and that you cannot understand this country and its strengths and weaknesses without engaging the issue of race and racism.

S5: And for my own profession, that my own profession would understand this as well, because they have been caught up in the undertow of this and have not covered themselves in glory.

S1: So I’m very glad that we have come to this issue of repair, because I fully agree that if Joe Biden wins the election and Democrats take the Senate, the battle only begins right. Then it’s time to repair and restore and try to scramble our way back to something that we never actually, I think you and I are now agreeing. We never really had. We had a nice movie that we ran in our heads about it. But one of the things that I am stuck on, and it’s one of the reasons I really wanted to talk to you today, is what do we do about the courts? And I ask that in part because my other guest on the show is Brian Fallon, who’s working very, very hard to think about how to recalibrate the courts. That, as you said, have been this is a generational problem. Now, this is not a four year problem. And yet I always think about you as a civil rights lawyer. You depend on the courts. And I’ve heard you expressed doubts about amending the Constitution to protect the vote. I’ve heard you say delegitimizing the courts is just a horrible idea because millions of vulnerable Americans still today rely on the judiciary to protect the environment, migrants to protect women, to protect dreamers, LGBTQ communities, voters across the board, all of them, like it or not, have had their rights vindicated even just this past year in the federal courts. And I wonder how we have a conversation about the court as a problem that needs to be fixed. When I think you as a civil rights attorney, would say even in a minority rule era like we’re living in right now, the court is the solution as much as it is the problem.

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S5: Well, it’s definitely not the sole solution. And I my my my feeling is that I’ve always been doing the the two things at once. So most of my scholarship has been about the need to bring greater diversity to the to the bench. Right. So I’ve been criticizing the court at the same time. I’m using it. Right. And that’s look at your civil rights lawyer. You’re engaging in some magical thinking. You say yourself because you are using this avenue that you know was not created for you. Right. And you’re using it and you’re trying to manipulate and and work within the system in a way that produces results for people. But I have never been shy about critiquing the system itself. Right. And if you think about the whole movement to bring versity to the federal courts, it was a deep critique of Thurgood Marshall said about the Supreme Court. None of his colleagues, none of them knew anything about race until I got there. Not one of them. Right. You know, so, you know, first black secretary and the Supreme Court, Alice Doval, that’s Marshall secretary that he brings with him from the Second Circuit, who he brought with him from LDF. Right. So so there was always a thoroughgoing critique of the actual system, even as we worked in the system. What I have suggested is that as people think about solutions to the system, it’s almost this year, I have to say, is is kind of called the question. Right, because courts can delegitimize themselves. It’s not about me delegitimizing a court. A court can delegitimize itself. It’s what I’ve written about in the recusal context. Right. It’s about the appearance of impartiality as well. Right. So recusal statute doesn’t say you should just recuse yourself as a judge if you actually have real bias. It says even if a reasonable person would think that your impartiality could reasonably be questioned, you should probably step aside. And I mean, you just as Barritt, right? So there is you know, there’s there’s that standard. Right. So that’s but that’s on the court. It’s not about whether we delegitimize the court. It’s about whether the court delegitimizes itself. And that’s a different project that required a response from the people and from our profession. And if the court does that, when the court is all white, it did delegitimizes itself. It required a response, which was the demand to bring diversity to the bench. When the entire federal system has been turned over to former prosecutors, the court delegitimizes itself so that to be a federal judge, you’re a former US attorney or former prosecutor of some kind. But when we do that, when we suggest that to sit on the federal bench, you have that one narrow background. You are delegitimizing yourself in the eyes of the public, and that requires a response so that we can have professional background diversity. We have civil rights lawyers and former public defenders and so forth on the bench. And when the court engages in activity or when the Senate engages in activity that delegitimizes the court, then we have to respond to that as well. So please don’t read my we shouldn’t be trashing idea of the courts to mean that we are bound not to take corrective action when actions by the court as a structure, not individual judges, but the court as a structure or by the Senate. Have, in fact, delegitimize the courts in the eyes of the public, because at the end of the day, look at the people I represent, they would need to have a reason to believe in it. It’s not my job to convince them. I always say we try. We try in every forum that’s available to us. We try in the political system. There are people who are in the in the streets protesting. Those of us who are in the courts litigating. Right. We are we are a disfavored minority in this country. We have to use every possible avenue and platform. But, you know, people looking at the courts, they’re not feeling it, and I have said for those of us who work within the court system, it would behoove our entire profession to try to make the courts fairer and legitimate because you want people to believe in the system. I’m not trying to convince them to do anything. I’m just telling them that this is an avenue that we are prepared to fight for you in this terrain and to try to produce results and outcomes. And in some instances, we have had amazing success. Historically, I’ve never said it’s the only way. I’ve never said it’s the absolute best way. It’s the way that I can make available to you as an avenue and it doesn’t foreclose the others. And when transformative change has happened in this country, it’s actually happened when all three things are happening, when there’s a grassroots, mobilized grassroots movement and protests, when civil rights lawyers are firing on all cylinders in the courts and when there’s a moment of political transformation. That’s what happened during the civil rights movement. All those three things were happening at the same time. It wasn’t one of them. And actually, all those three things are happening now. And that’s one of the reasons why I know that there is a potential for tremendous progressive transformation at this moment is not guaranteed by any stretch of the imagination. But I know that the ingredients are there to make that transformation happen. And my job is to do the part that I know, the part that I’m responsible for. And this is what I say to our profession. So many people are so outraged to their credit about the torture and killing of George Floyd saw that video and said, you know what? Maybe before I thought it was bad apples, but now there’s something systemically wrong. We’ve got to do something. When I go to our profession and I talk about qualified immunity, what I say to them, to the ABA, to others, it’s like this is a judge made rule. This is not in the Constitution. This was created by us, by us, I mean by our profession, by judges, if we see a flaw in the system and it’s the part that we created that prevents accountability. I’m not asking you, ABA, to like train police officers or to do budgets to figure out how to defund. I’m not I’m not asking you. I ask you to do the part that you are responsible for. You are responsible for this doctrine. So what are you saying about adoption that, you know, has gone so completely out of whack that it would allow our client to be tasered to death 19 times and have a court uphold qualified immunity for the officers who did it? So I’m asking people to just take on their thing, and so my thing is what I know and obviously I litigate in the court, so it does not behoove me to be out in the public saying here’s how I would make all the different kinds of changes. I do talk a lot about diversity. I am prepared to talk about the fact that changes have to happen. We know that because frankly, what we have seen is delegitimizing. It does not help the courts in the eyes of the public and that that is a danger to our democracy. If we believe that the rule of law and a legal system that is supposed to give everyone an equal shot, we know of course it doesn’t. There’s supposed to be striving towards that becomes completely delegitimized. And I like then you are weakening your democracy, so everyone should want to fix it. It’s not controversial. It’s not partisan. You should want to fix it because you believe in our democracy and you understand the same way people feel about our political system. People understand our political system has been delegitimized. Maybe it’s the money in politics or whatever people think is the reason. I don’t think anybody is walking around saying, no, our political system is working. It’s humming along, it’s working great. People have great confidence in it. They don’t. And it’s harmful to our democracy. So we should want to fix it. Well, the same is true of our judicial system at this point, and we should want to fix it. That’s the truth about law enforcement, right? It’s broken. You should want to fix it because people have no confidence in it, and that’s harmful. So I guess I’m just asking people to be honest about our democracy, about the flaws in our democracy, to see that what they have not attended to has only gotten worse, and to understand that it only will get worse unless we are courageous and bold and willing to look it in the eye and say there is a problem. How are we going to fix this problem?

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S1: So I like this framing, Sherrilyn, because it answers a question I’ve been struggling with for a long time, what you’re saying is blaming the victims of a corroded system for delegitimizing the system is victim blaming. And that you’re making me realize somebody said to me this week, it’s important to understand in 2000 in Bush v. Gore, the Supreme Court didn’t decide the election. They handed down a judicial opinion that Al Gore conceded and that the country acceded to. And what you’re saying is, if a Supreme Court, for all the reasons you and I talked about, up top hands down an illegitimate decision based on another judge made rule Purcell or another judge made fantasy about. Now we decide elections. The night of that will not be the public delegitimizing the court. That is the court delegitimizing itself. And I think that that that feels to me the right analytical way to move forward into what is going to be a really fraught time.

S5: Yes. And I actually think it’s it’s a it’s a bit of a trick. It’s almost like when people would ask me over the last three years, they stop asking over the last 18 months, but certainly for the first 18 months of the Trump presidency, they think he’s racist. Tell me why that was a continuous journalistic thing, so the point is to get me to say that the press in the United States is racist rather than actually to do the job of assembling all of the facts. And there are many. Right. That you would arae together to determine because racism is an actual thing. It’s not a fantasy. That’s something that somebody even came up with. It actually exists in law. It’s capable of being proved right and that you would just do the work yourself. But it’s to try to always get the victim to say the thing so that then you can say Sherrilyn Ifill said, rather than what the truth is. And I feel like some of that happens with this conversation about the courts. Why are you asking civil rights lawyers? Obviously, we know that it doesn’t work in our favor. What influences work in our favor? They don’t. They don’t. We have to prove everything. We have to prove that somebody’s saying the N-word in the workplace actually creates a hostile work environment. We we have to prove and prove and prove and prove. And we do it, we take it up, it’s like the Alabama voting case, we take it up, we actually do the trial, virtual trial, as we’ve done since March. You know, we get on the phone, we get on Zoome, we get our witnesses together, we get our expert. We actually do it. And it results in one hundred and ninety seven page opinion. We do it, we play the game. So stop asking us about, you know, why it’s illegitimate. It is what it is. We know that, we know the things that are obvious will not even go in our favor. We actually have to prove it every step of the way. But I think that courts, like our profession, are not covering themselves in glory when they make the kinds of forays into magical thinking that that Justice Roberts did in Shelby. You know, that somehow is a stain on the South to suggest that they should be covered by preclearance and things have changed with with no real expertise, swatting aside Congress’s year of hearings and development of a record that’s. I’m not I’m not. I’m criticizing Justice Roberts. No, he’s embarrassing himself by talking in this way about something he obviously doesn’t know. And certainly, I would say the last five years have proved what have proved that, in fact, Justice Ginsburg was correct. That he was presumptuous and wrong. And that the result has weakened our democracy because now what used to be a regional issue of voter suppression has metastasized and become a national issue because Wisconsin said, hey, hey, that looks good, I can get in the game. Voter ID works like that. Let’s do it. Right, because Kansas said, oh, we can just move polling places, right? So now it’s all over the country, something that had been that existed was a problem but had been at least regionally contained, now has metastasized and encompass the entire country. So I don’t take responsibility for that. We take responsibility for actually ringing the alarm bell, which is the mixing my metaphors, but that’s the canary in the coal mine. We’re the early warning system about flaws in the democracy that are dangerous. And if you comfort yourself by believing that, that’s just what happens to black people. That’s just what happens to gay people or that’s just what happens to women. What we are learning in this moment is that it will destroy our entire democracy. What people saw in the protests of Floyd was killed in terms of the police response wasn’t just a police response against black protesters. They saw it. So what I’m hoping is that we come out of this period with that knowledge that there is important information we have to bring to the table about how we make this a real democracy and a strong democracy. Right now, it is weak. And it has to be strengthened.

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S1: Sherrilyn Ifill is the seventh president and director counsel of the NAACP Legal Defense and Educational Fund. Her 2007 book On the Courthouse Lawn Confronting the Legacy of Lynching in the 21st Century, reflects her lifelong professional engagement in issues of race in American public life. She was, in fact, just named one of Glamour’s Women of the Year, but she has been one of my women of the Year for my God a long time. Sherrilyn. I know you are up to your eyeballs in it, and I thank you for your work and thank you for your time today.

S5: Thank you so much, Dahlia. Thank you.

S1: We have been talking about reforming the courts for quite a long time on this show, we spoke with Aaron Belkin of Take Back the Court. He’s one of the original Overton Window openers. Back in April of twenty nineteen, rumblings about structural court reform were just barely audible in the Democratic primary. But this week, with Amy Barrett sworn in six days before an election in the aforementioned ceremony, Trump campaign and those rumblings have erupted into a chorus on the left and garnered support from some pretty improbable people. Court reform is certainly no longer just a hypothetical or an academic question, not as the court hands one late night decision after the next determining which ballots are going to be thrown away if they arrive by way of a crawling postal system on, say, November 4th. My next guest today is Brian Fallon. He’s co-founder and executive director of Demand Justice. It’s a progressive movement fighting to restore balance to the courts before demand justice. Brian worked as director of public affairs for the U.S. Justice Department during the Obama administration. Prior to that, he was a top aide in the United States Senate working for New York Democrat Chuck Schumer. He also served as national press secretary for Hillary Clinton’s presidential bid. In other words, having worked a lot in the system on the inside. Brian is now trying to save it from without Slate. Plus, members will hear the full interview. Brian Fallon, welcome to the podcast.

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S3: Thank you so much for having me. I’m so flattered to be on.

S1: So I’m going to open with the you told me. So I think I offered you this on Chris Hayes show a few weeks back. I have been a very small C conservative when it comes to court reform. And you’ve been saying, I think, for a lot longer than I have, that norms and wishful thinking are just not going to be enough to rebalance the judiciary. It took me a long time to get to where you have been for far longer. I guess I want to just start by asking, how frustrated are you this week that the debate that’s raging about court reform, just as everybody seems to be coming online, that this is a problem is nomenclature? Should we call it court packing? Maybe we should call it a different word. I feel like we’re literally workshopping something that you workshopped two years ago. And I want to just ask, how frustrated are you?

S3: I want to say, first of all, let me express some modesty, because I feel like I’m a relative newcomer to this, too. By certain standards, perhaps demand justice has been at the forefront of calling for court reforms like expansion. But really that just dates back to two years ago and the immediate aftermath of the cabinet fight prior to that, when we first started demand justice in the spring of twenty eighteen, it was not part of our mission statement to seek to add seats to the Supreme Court. It was more generally to just provoke an awakening on the on the progressive movement about how we needed to center our judicial branch of government and funnel more activism and pressuring of Democrats in Congress to to act on this issue. It was only in the aftermath of the cabinet fight and the extreme frustration that was experienced by many of us that were on the front lines of contesting that nomination, that Republicans had put their heads down and decided to confirm him freshly on the heels of having successfully vacated the Antonin Scalia’s seat and then filling it with Neil Gorsuch that I and others began consuming some writings from people that had been there prior to us. And so I started reading things from, you know, some mutual friends of ours, people like Mistal, who was then still out above the law and now is at the nation. Ian Millhiser, your colleague at Slate, Mark Joseph Stern. These are people that keep me informed on a regular basis to this day about the decisions that come out of the court. And a lot of them we’re talking about this in the fall of twenty eighteen. And and then as we started to lean into this and started to organize around it, and we did spend the better part of twenty, nineteen and twenty twenty organizing volunteers to go ask presidential candidates in the Democratic presidential primary to take positions on this question. And one of the frequent criticisms or questions that we would get in response from skeptical candidates and Democratic lawmakers was, well, how do you stop a race to the bottom? How do you stop a tit for tat where if we add two seats or four seats, Republicans will just do the same the next time they regain power? And then I encountered a piece written by a constitutional law professor at Columbia, by name, by the name of David Posehn, who wrote about this idea of this asymmetrical warfare that Republicans have been carrying out with respect to the courts, but really across the board in terms of trying to entrench their own political power through means that are not necessarily illegal or unconstitutional, but which violate democratic norms and a sense of fair play. David’s essay was all about that. You know, even if progressives may wish to de-escalate the situation, they might need to escalate it in the short term in order to give the proper incentives for Republicans to come to the table and negotiate a truce. And to me, that is what this is all about. If you want to get back to a system where the court’s power relative to the other branches of government is sort of rightsized and where both sides, Republicans and Democrats, sort of take their hand off the grenade pin when it comes to each of these judicial confirmation battles. We need to we need to convince the Republicans that it’s not in their interests to any longer execute the strategy that they’ve been carrying out for the last several years. So my pitch to Democrats in Congress and to other left leaning advocacy organizations that are not yet there yet on ideas like adding seats, is that even if you are enormously minded person and you worry about the erosion of our institutions, we need to escalate in order to ever have a chance of successfully deescalating. And so that’s, I think, the conversation that we need to have with people over these next six months. If Biden wins and then and then we have this commission that he’s indicated he’s going to appoint if he does win.

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S1: I think Larry Kramer, a former dean at Stanford Law School, did a version of what you’re describing in this week’s in that roundup in the New York Times magazine about how to fix the court. And he essentially says something that I think Robert Rayburn said on the show a few weeks ago. Look, this is a political question now. And the only way in game theory to deal with nihilism and destruction is tit for tat. And you just have to sort of when they go low, you go low only for game theory purposes. And you can’t think about it in isolation from politics because it’s got nothing to do with law anymore. I mean, it’s a it’s just hard for magical thinkers like me to get there, which is, I think, why it’s taken me longer to get there than than some others. But essentially, this is just not a constitutional lofty. How did the framers think? Question this is just what you do in game theory when you’re getting pounded.

S3: And on the one hand, I think that this is still going to be an uphill climb in terms of getting fifty one senators that are very institutionally minded to wrap their heads around the need to engage in this game theory. And yet what encourages me about the prospect of gaining a consensus on this is this is really a conversation that’s not just playing out with respect to the courts. It’s playing out across issues. And in certain of these other facets there, the consensus is further along. And I’m thinking of things like the filibuster in the Senate, where even just two years ago, it would have been unfathomable that moderates like Chris Coons from Delaware would have been openly floating the idea of getting rid of it if the Democrats win back the Senate. And yet we are several days away from an election that may flip the control of the chamber to the Democrats. And I feel like there is an emerging consensus there that if the Democrats win and Joe Biden is the president at some point within year, one of Democratic control of the Senate, they will probably change the rules. And Barack Obama himself at John Lewis’s funeral basically urged Democrats to take that step if necessary. And so I think that as a party, Democrats are realizing that we can’t unilaterally disarm anymore in the face of this constitutional hardball that’s being played across different spaces. It’s being played at the state level by Republican governors who, by the way, have added seats to their state supreme courts and numerous places. But it’s playing out in terms of the way that Republican appointed judges seem to uniformly come down on the side of upholding Republican enacted voter suppression schemes and and being almost universally skeptical of any effort to extend voting periods. And so I think that there’s a fresh set of eyes that are being turned to all these questions of, you know, even if we want to prioritize an agenda on climate change, on dealing with prescription drug costs, on gun safety, sort of superseding all those individual policy priorities is a consideration of how can we level the playing field so that elections are free and fair going forward and that Democrats have a fair chance of ensuring that everybody’s voice is heard. And so ideas like D.C. statehood, ideas like abolishing the filibuster in the Senate, ideas like drastically reforming the voter registration process to make it automatic, make Election Day a national holiday. I think there’s going to be sort of trench warfare in twenty, twenty one over those issues. And I see the fight over the courts as a cousin of all those other political questions. And so I think if we can achieve consensus on the other questions, it won’t be too hard to include some kind of court reform proposal in one of those legislative vehicles.

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S1: Brian, one of the reasons I wanted you on the show is because I think you. See this through the lens of this is a messaging problem in some sense, I mean, there’s a structural political problem, but there’s also how is it possible that Democrats and progressives just hit the snooze button on the whole issue of the courts sometime, what, in the 70s after Roe in the 80s just didn’t show up, didn’t organize, didn’t message after? I think Merrick Garland blockade some awareness that that was a problem, even though, as you’ve noted many times didn’t seem to surface as an election issue in 2016, didn’t become something that Hillary Clinton messaged adequately or that Senate Democrats messaged adequately. Why do you think it is that Democrats have just been utterly sanguine about the fact that they had the courts in their pocket long after long after it was clear from Bush v. Gore, from Citizens United, from Shelby County that the courts had been lost.

S3: So that’s. Feels like an existential question that people like you and I debate or discuss endlessly, and I don’t think there’s any one answer. I think there’s multiple factors, many of which have been discussed in the past. For instance, I think that there’s a respect for institutions that supersedes almost every other consideration. And in the minds of a lot of progressives, that makes us wary of engaging in a political tit for tat over something as venerable as the Supreme Court. I also think that progressives, at least at a grassroots level, have sort of been confused about whether the court is an enemy of progressive values or not. And Roberts deserves some credit here. He’s a very skillful politician, and I do think he brings political considerations to bear in the court’s jurisprudence. And there’s been enough victories for progressive causes even in in the modern era, the last 20 or so years, that it has prevented or frustrated a unmitigated exposure of the court’s rightward lurch from seeping into the public consciousness. And so for every Shelby County, there’s in a burger fell and and that has prevented the left from being fixated on the courts as consistently as they as they needed to be. But I also think that the other thing that I want to introduce into this discussion is that I think that some of it is our own fault. And I think that some of it is sort of a cultural problem in terms of even progressive lawyers. I think that they see themselves as having more in common with conservative lawyers than they do with progressive nonlawyers. I think that there’s sort of a status that gets assigned to people that went to law school in general, but then in particular went to, you know, what people would refer to as t 14 law schools, which are some of the hardest law schools to gain admission to. There’s a sort of status that gets attached to having attended those schools, then going on to clerkships, then going on to stints as associates at prestigious law firms and the people that run in those circles, regardless of what your politics are, you tend to see yourself as having more in common with your colleagues that went through that same gauntlet with you, even if on the other side of it they came out conservative and you were progressive in your politics, and it has prevented the people that are closest to seeing how unfair the system is from building community with the activists on the outside that would have the ability to do something about it if they were a little bit more educated about it. And so I’m a nonlawyer myself and I worked in the Senate for six years. I had a pretty good front row seat to the judicial nominations process, especially as it went through Senator Schumer’s office. But it was a pretty much a black box to me. And I felt as a staffer in the Senate, I felt like I specialized in communications and media relations. I felt like I had a seat at the table for any conversation around health care. I was there during the passage of Obamacare and I felt like I was sort of free to give my opinion from a strategic and political perspective about the machinations around the Obamacare debate. Pretty much every policy issue, I felt like I had a seat at the table. And yet on judicial nominations, there was a judicial selection committee that Senator Schumer relies on. And then as chief counsel at the time was Preet Bharara, who’s now a rather famous for his tenure as the US attorney from Manhattan. I would only sort of come into the process when it was time to announce the people that that judicial selection committee had nominated to Chuck Schumer. And then we would put it out and there was no sort of political balance to it. It was all sort of happening in this compartmentalized process over here. And I think that what we need to do as a movement is we need to demystify that process about who gets appointed to the federal bench. And we need to give laypeople, nonlawyer activists the confidence to feel like they can have an opinion on this and to not just trust that if a decision comes out from the Supreme Court, it must have had to be that way because they, of course, call balls and strikes. And so who are we to question it or second guess it? And you might see fiery dissents from some of these cases. And yet to the nonlawyer activist, if a ruling comes out from the Supreme Court, there’s just a sort of sense that something must be going on above my intellectual capability to understand or grasp. And what I think is happening in the last couple of years is you’ve had more people that have gone through this system and that are and that have been positioned to benefit from the system that are now becoming sort of traitors to their class, if you will, and that are speaking out more prominently. And I think that is sort of causing the facade that this is all sort of on the level to sort of be chipped away at. And I’m thinking of people like Laura Lippman, who clerked at the Supreme Court, but is now a very outspoken person, has a podcast with some friends of ours like Melissa Murray, where they deconstruct the Supreme Court cases and they sort of openly acknowledge that this is not on the level. And she’s a prolific publisher of iPads and everything that I think exposes the same type of trend. Young people like Molly Coleman, who’s running a group called The People’s Parody Project. Molly Coleman just graduated from Harvard Law School. She could have gone on the same path that most Harvard Law School graduates go on, be receiving a very lucrative salary now as a first year associate at a law firm. And instead, she’s the executive director of a group that is trying to get rid of forced arbitration clauses in employment contracts. And she’s speaking out against how stacked the system is that benefits people like her. And my own colleague and co-founder at Demand Justice Chris King, who was the Judicial Nominations Council that handled this issue for Barack Obama. And so the more that people that are close to the system are willing to speak out about it as opposed to defend it and uphold it, the easier I think it will be to galvanize support at a grassroots level from people that are a little timid or a little intimidated from thinking that this is an area that they can commit their activism to in the same way that they might around a health care debate.

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S1: So this is phenomenally interesting, Brian, because it explains both Noah Feldman. Right, who testifies at the impeachment trial, who sticks his neck out for Amy CONI Barrett, and then last week writes, Don’t stack the court, don’t change the court. Right. This is Amy Chua talking in favor of Justice Cavnar. And in some sense, what you’re connecting it to, which I think is right, is the. Humidity of a lot of Senate Democrats who just similarly are longing for the oracular court in the sky in the same way that they’re longing for the good old days when, you know. John McCain and I came together to work across party lines and do good, and it all is of a piece with this magical thinking about how government is predicated on parody and comedy and good fellowship. And what you’re saying is that that is in a lot of ways driven by class and access to the highest echelons and that it obscures more than it illuminates. And I think what’s going to be hard for people to swallow is, Brian, you’re talking about taking down more than just the courts, like you are really talking about hardball, not just around the judiciary, but hardball around an entire system of thinking about institutions. And I think that that’s where you get people balking, right. Is that you are I think your theory of the cases is spot on, by the way. But I think it it it implicates so much more than just recalibrating the courts.

S3: Yes. And it’s very untidy. And an our willingness to speak out loud about some of this interconnectedness has made us some enemies. So, for instance, one of the fights that demand justice was involved in was about this issue of blue slips. And when we first were founded in twenty eighteen, one of our one of the things that drove us crazy was that Democratic senators were voting for Trump’s judges in such large numbers and in certain cases before the Republicans decided to change the rules and get rid of these this issue of blue slips, which is sort of a procedural custom or tradition in the Senate where even a president of the Republican Party would in the past, not advance or seek to nominate somebody for an appellate court if a home state Democratic senator from that jurisdiction did not sign off. And Republicans recently got rid of that tradition so that Trump could fill all these appellate judicial positions without without any obstacles. But for a period of time in the first couple of years, Democrats still had that power. And and one of the one of the sort of immediate events that immediately preceded the founding of our group was a fight in the Senate over a judicial nominee by the name of David Straus from Minnesota, who had been on the Minnesota Supreme Court. And he was nominated for the appellate court. And Amy Klobuchar returned her blue slip for David Straus, which infuriated a lot of the incumbent organizations that already inhabited this judicial space that we were entering into in the spring of twenty eighteen. And to us, it sort of openly exposed what was wrong about the current system and everything that was laid bare by that decision by Senator Klobuchar, who, by the way, has become much better and a much more reliable opponent of Donald Trump’s nominations. But at that time, all the inputs that were sort of factoring into a senator’s decision about whether to support a nominee of the other party. And David Strauss, by the way, was somebody that was on Donald Trump’s Supreme Court shortlist and had clerked for Clarence Thomas. So his views were not a mystery to anybody in the danger of him being promoted to the Supreme Court someday was was very much at the forefront. Even when she was making this decision. What was happening behind the scenes was Democratic or progressive lawyers in Minnesota who were donors to you, Senator Klobuchar, and that were sort of setas of elite opinion in Minnesota. Legal circles were vouching to her about David Strauss being a good guy. And so and so, in addition to the opportunity to look bipartisan and to get hailed by editorial boards and hometown newspapers that only pay fleeting attention to these questions, there was also an echo chamber of voices from the left and the right saying that, hey, I disagree with him on everything he stands for. But, you know, he’s qualified, he’s very smart and he’s a nice family man. And there was no other loud voices saying, hey, wait a minute, this this guy’s views are retrograde on, like, everything we care about. And likewise, you see that play out in so many other debates and nomination contests. Neil Eggleston, former White House counsel partner now at Kirkland. Unless there was a big fight over judicial selections to the 9th Circuit out of California and despite and Dianne Feinstein being a senior most Democrat on the Judiciary Committee, the White House was jamming down her and Kamala Harris throats, three Federalist Society lawyers for three open seats in California. And this really like took it past the point of no return in terms of them showing no courtesy to home state senators any longer, because Dianne Feinstein was the senior most Democrat. And so even as we’re having this sort of existential fight about like, all right, I guess all rules are off now and you’re even going to not feel the least bit of courtesy to the senior most Democrat on the committee for a traditionally liberal circuit. Court in the 9th Circuit, amid all that, Eggleston is sending a letter to Dianne Feinstein vouching for one of the Federalist Society lawyers that the White House was putting up because he had worked with him at Kirkland and Ellis. So, yes, you’re absolutely right. That were sort of calling out a phenomenon that is larger than just these individual nomination battles. It is a culture of coziness that exists at the level of elite lawyers, and that is a system that I think has to be confronted and toppled if we’re ever going to achieve more of a sense of fairness across our legal system. We’re going to have to call it out. We’re going to have to have a reckoning here. I don’t think that you’re going to see a grassroots movement on the left that peacefully coexists with the current status quo, whether it is the likes of Lisa Blatt writing op eds saying, I’m a progressive feminist, but I think we should confirm Brett Cabman are those two things cannot coexist. One is going to have to give way for the other to ascend, and that will be a good and healthy thing when it does.

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S1: You’ve just nailed for me, Brian. This is why I was so rankled by throughout the berrett hearing, the metaphor of Antonin Scalia and Ruth Bader Ginsburg were friends, despite everything. Right, because it is that’s a Trojan horse. It’s a way of saying you keep bringing don’t even bring like a spork to a knife fight, like bring, you know, a dessert spoon. It’s a way of saying that under the guise of hail fellow well met, you know, lifelong interactions that transcend partisanship, you should just disarm. Right. That’s what that was being deployed to do.

S3: One hundred percent. And that is an argument that right now creates pause in the mind of a lot of Democrats like that is an argument that naturally, reflexively appeals to a lot of people on our side of the aisle. So what groups like mine need to do is we need to create with equal and opposite force in instinct in those Democratic senators to not default, to falling for that stuff because they worry about a grassroots movement on their left that could support a primary challenger to them if they fall into that trap again. We’ve got a lot of criticism during the week of the hearing because we publicly called for Dianne Feinstein to step down on the final day of the hearing after she complimented Lindsey Graham on his conducting of the hearing. A lot of people on the left, a lot of folks in the Senate said that this was an issue that we were identifying that was a fair one, but that now is not the time to sort of talk about that because we were taking focus off of the nominee and all the bad attributes of her. And to me, it’s like, no, you know what? We’ve had too many years of postponing this conversation. We need to have this out publicly. We need to have this reckoning like the fact that Dianne Feinstein thought that she should default to complimenting him for a hearing that never should have taken place in the way that it did and on the timetable that it did. That to me says that we still have not even things out, that all the things that have sucker Democrats into that sort of mentality have not been counterbalanced with sufficient force in terms of convincing them that there is a grass roots left that is now paying attention to these things. And so I almost think that we still need to overdo it. We have a long way to go to sort of build a movement of people that are consistently in the ears of these elected officials, telling them that there’s a constituency for them to fight on this. You know, I would have rather that a lot of these Democratic senators declined to take courtesy calls with Amy Tony Barrett, but seven out of the 10 on the Judiciary Committee did. And to me, that was another sign that things are still out of balance. They do not respect the progressive left enough to when they’re making a decision about whether to take that meeting to come down on the side of no. Chuck Schumer did Chuck Schumer’s in cycle in twenty, twenty two. And so I think he approached this somewhat differently than Dianne Feinstein and Dick Durbin and a lot of others on the committee. Chuck Schumer has been fairly out there saying, I’m not going to take anything off the table when it comes to adding seats. He declined to meet with the nominee. That’s because he’s from New York. He’s in cycle in twenty, twenty two. He has seen two House members get defeated in primaries the last couple cycles. And so he’s a little bit more sensitized to that. And I think we need to create that dynamic across the Democratic caucus in the Senate so that more of them, you know, approach these decisions about who should I boycott a hearing or attend? Should I take a courtesy call or not? Should I vote for this Trump nominee or not, that they approach those decisions fearing a progressive grassroots that is keeping score on this stuff more than they care about what Morning Joe will say about them the next morning?

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S1: It’s so interesting. And I think it loops back to something you said up top about how every Senate staff has its magical judiciary person. And then you, I think by mystifying this conversation around the courts and taking it out of the realm of straight up brass knuckle politics, you do have this instinct and we really saw it at the hearings, like if I just feed this nominee through the starry decisis super precedent machine. Right. Just through this incredibly mystified, I’m going to ask some gotcha question about super duper precedent. And that’s going to nail this thing. And it’s completely abstracted away both from what’s actually happening, as you’re saying, but also from anything the public could understand. And there is such a strong tendency, at least with judicial nominees, to do this thing to say, well, nobody understands. So we’re just going to ask arcane questions about Marbury versus Madison. And that way, in a weird way, the public is read out of the conversation altogether. That’s where you’re tilting, right? Not tilting. That’s what you are saying emphatically.

S3: One hundred percent. Yes. I think for too long we have approached the discussion of. The courts and the debate on individual nominees as if this is something playing out at a Princeton eating club and it is a venue where political power is at stake. And if you look at how debates around the repeal of a health care law get conducted, how debates around climate change get carried out, they happen much more differently than the debates around individual judicial nominees. And we need to change that. You know, climate change and the Green New Deal became a thing in terms of being at the forefront of the Democratic agenda where it now is after the twenty eighteen elections, when the Sunrise movement decided we’re going to hold a sit in and Nancy Pelosi’s office, AOC made the decision to go speak at it. And suddenly everybody felt like they had to familiarize themselves and take a position on the Green New Deal. You know, the Affordable Care Act repeal debate in twenty seventeen was marked by scenes of activists like Adi Barkan, who is bound in a wheelchair going through the corridors of the Senate office buildings and again confronting Jeff Flake on a plane and forcing people to engage with the human real toll of what they were going to do. And I think we need to get this discussion around the courts out of these rarefied settings where the discussion is now happening and make it real in the way that it was for a brief period during the cabinet fight when you had the Survivor community descend on Capitol Hill and tell their stories. And Annemarie Archila from the Center for Popular Democracy confronted Jeff Flake in an elevator in a moment that went viral. And even on the day that Susan Collins gave her speech announcing her decision to vote for Brett Kavanaugh, you saw scenes of which I thought were so symbolically powerful. You saw scenes of the protesters and activists that were gathered around the Capitol complex literally go up the steps in such numbers that the Supreme Court security sort of stood back and were literally pounding on the gilded doors of the Supreme Court building because everyone was being Western for the ceremonial swearing in ceremony. We need to bring the Supreme Court down to the level where people feel like it is a venue where political power is at stake. And if we don’t contest what the Republicans are doing, we’re going to lose out. And it will negate every success we might have in terms of winning elections for the executive and legislative branches.

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S1: I want to give you a chance to talk about the actual project of reform, because we’ve talked we haven’t talked about it yet. And I think that that New York Times set of essays had a whole bunch of prominent academics this week pitching expansion, expansion of the lower courts, creating a constitutional court, term limits, jurisdiction stripping. Which of those are you pushing? Which of them are you have reservations about? Some of them are, I think, unconstitutional. Some of them just pull really poorly, Bryan. So can you give me a ranked wish list of the kinds of reforms you want to see?

S3: Joe Biden talking about in 2021, yeah, so demand just as we’ve come out in support of a four part plan that includes adding seats at the Supreme Court level, adding seats at the district and appellate court levels, seeking to impose term limits on Supreme Court justices, and then imposing a code of ethics on the Supreme Court, which has surfaced in questioning between Sheldon Whitehouse and Amy Barrett. They’re currently immune from any ethics regime. I think that to take some of those one at a time, I think that lower court expansion is the low hanging fruit here. And I think that that’s almost guaranteed to take place next Congress. If Democrats win back the Senate and Joe Biden wins the White House, I think that is now the sort of low hanging fruit because there is an existing recommendation or request from the judicial conference that John Roberts has put his name to asking for 60 plus seats to be added, most of them at the district court level. I think we ought to do some reassessment of whether the requested number from the judicial conference is too low and whether it actually reflects the caseload that these judges are encountering. So we are currently working with a number of scholars and outside think tanks to arrive at a method of calculation to perhaps suggest a higher number than the 60 some odd seats that constitutes the official recommendation from the judicial branch. But I think that while this I think that’s a bill that could have hearings and could be marked up and even reach the House floor during a six month period, while the Biden commission is weighing some of these other bigger ideas about Supreme Court reform. So that would be great and we’re overdue for that. There really hasn’t been a large expansion of the lower courts since 1990, but it’s something that has regularly been done on a bipartisan basis. And in a piece that Chris King and I wrote for The American Prospect a few months ago, it would give Joe Biden the opportunity, like Jimmy Carter, who also signed into law a large expansion of the lower courts, the opportunity to nominate a huge wave of people that could be the next generation of progressive jurists. So I think that’s highly doable. But now that for us is the floor, not the ceiling. Term limits is an idea that I think ought to be paired with an expansion proposal. And and we’re very familiar with Gabe Roth, who runs a group called Fix the Court that has done a lot of tilling of the soil for the last several years to popularize an idea that has now been introduced in the House by Roxanna that calls for 18 year term limits for Supreme Court justices. It would grandfather in the sitting justices and only apply prospectively. And at the end of the 18 years, justices that are confirmed under this new law would then roll onto a circuit court so they would retain lifetime tenure as a federal judge. But as Gabe points out, there’s nothing in the Constitution that specifies that any federal judge is guaranteed lifetime tenure on a particular bench versus lifetime tenure in general. So that’s their argument for how this could happen without needing a constitutional fix. We’re supportive of that. But again, I think it ought to be appended to an expansion proposal. I don’t think that by itself is going to solve for some of the problems that we need to solve for with court reform. It does not, for instance, do anything to respond to what happened with the stolen seat in 2016 or what just happened now with Amy CONI Barron’s confirmation. And as we were talking about before, in terms of the need to play tit for tat to sort of try to restore some kind of permanent equilibrium, I think you need a solution that goes directly to the wrongness of what has taken place in the recent past. And so lastly, term limits, by the way, polls extremely high as it is in the context of lawmakers on Capitol Hill, 70 plus percent of the public supports term limits for Supreme Court justices justice. About 70 percent of the public supports it for members of Congress. So that to constitutional considerations aside, politically, that I think is also low hanging fruit where the rubber is going to meet the road, I think is is the expansion idea. But in the days since Amy coni Barron’s confirmation, there’s been another wave of Democrats from the left, figures prominent on the left like AOC to fairly mainstream Democrats that are signaling their support for this. So I don’t think it’s anywhere near the heavy lift that it would have been even two or three months ago. That is an idea that I think we have to do a lot of civic education on and our goal as demand justice in the coming months is to do a large grassroots engagement and education campaign to explain to the public. That this is doable, but it doesn’t take a change in the Constitution, that it’s changed the size of the court has changed in the past seven times. People don’t know those things. And I think that has contributed to some underwhelming numbers in certain public polling on this question. But I think that with some education and with more establishment Democrats in elected positions in Congress signaling their support for this, I think we can up that support score among Democratic voters. Right now, it’s somewhere between 50 and 60 percent of Democratic voters say that they support expanding the court. I think we could get that, you know, to 80, 90 percent with a little bit of effort in the next two to three months. And then with independents, there’s all kinds of arguments to be made for a larger court that have nothing to do with, you know, retribution against what happened with Merrick Garland. You know, if we had a larger Supreme Court, as so many other countries do, we could hear cases in the way that our circuit courts do with randomly selected three judge panels that would bring a little bit of suspense to how these court cases get decided. We could hear a lot more cases than the 80 or 90 that the Supreme Court decides every year. And if we had a larger court, every vacancy or death on the court would not be this knockdown drag out because each position on the court would be less important. So there’s a lot of reasons why a larger court would be good substantively, regardless of the political considerations. And so I think we can get support among independents. Well, about 50 percent with a little bit of education and engagement work as well. So we’re going to be prioritizing that in the next six months. We’ve set a goal of training and educating twenty five thousand volunteers that can then become advocates locally in their home states to pressure senators on this. So we’re going to be doing a huge grassroots digital advertising and field organizing campaign to build the constituency for this. And we have a lot of partners on this. The Sunrise movement that is so active on climate change is all I know on this issue of court reform. And they bring a lot of young people to the table. Groups like People’s Priority Project that we talked about before has a lot of law students, progressive law students that are willing to engage in activism around this issue. So I think we’re going to be showing up in much greater numbers, and I think that’s what it’s going to take.

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S1: Brian, do you have time for one more question? Sure. I wonder if one of the lessons of FDA’s failed court packing strategy is the one that we miss, which is even though it failed, even though folks turned on him, even in his own party, it had the effect of at least arguably launching the switch in time that saves nine. It allowed the court to both save face and preserve its special vaunted status, as you say, but also it led justices to modulate their behavior. And I wonder if and that we sort of tell that story is a cautionary tale, you know. Oh, my God, FDR engaging in brinksmanship with the court, you know, pulls back a bloody stub. Never do that again. The other version of that story is the message was received and the court changed in response. And I wonder if we’ve been seeing certainly John Roberts, as you said, up top, has been very carefully, I think, modulating his behavior out of fear of what the conversation you and Chris King have been having and others, Aaron Belkin, all the folks who’ve been pushing this issue, that he is well aware that the threat of court reform is coming and has been careful as a consequence. And I wonder if you might opine on whether simply the having of this conversation, the having of the hardball gloves off conversation has an effect on the court as currently constituted. If in some way, some of the stuff we’ve seen this week coming out of these late night shadow docket, unpassable orders from Wisconsin and Pennsylvania and North Carolina, a little bit of that is responsive to the pressure that you’re putting on the court.

S3: Absolutely. When I go around and meet with counterparts in this issue space that are skeptical of these proposals, I say, well, hey, it can only help if this debate is playing out publicly, because the more that the court is under a microscope, the greater the chances that it may. Chazen, the conservative justices, or at least John Roberts. And in the aftermath of Brett Kavanaugh, that was one of my main selling points to people about why they should consider jumping in the pool with us on this. But I think that post Amy Connie Barrett, that is no longer a sufficient reason to try to advance this. And even if we achieve some modesty from this court in the next year, I don’t think we should be lulled into a sense of complacency that we’ve, quote unquote fixed it. I think that John Roberts has now lost the ability to buy himself to moderate the court’s behavior. And that, in part, is why the Republicans felt it was so important to rush. This nomination along Donald Trump himself said that he thought that the election itself would be contested and he didn’t trust John Roberts to be the fifth vote for any disputes that might play out. And so with Amy Connie Barrett, I think that the conservative legal movement is betting that regardless of what public pressures may be felt by John Roberts, that they’ve now got five die hards locked and loaded on all the things that they care about. And so I think it’s going to be harder for us to just pick off John Roberts here and there. And the other thing I would say about that is even when it only took John Roberts to side with the more liberal justices, there were a lot of Easter eggs to conservatives in all and the decisions and the opinions he was writing in these cases where he was supposedly siding with the liberal justices. I remember listening to one of your episodes with, I think, Erwin Chemerinsky, where you were breaking down how in some of the congressional subpoena cases that, you know, that where he was supposedly siding with the Democrats, there was a lot of second guessing of Congress’ power to hold the president accountable that had long term ramifications. And then in the in the Louisiana abortion case, where he nominally upheld the precedent from whole women’s health, Roberts was revisiting the rules of the game in terms of abortion jurisprudence from from Planned Parenthood, because in a way that has caused new assaults on abortion rights to spring up from the states, citing his opinion. So I view it as something that it can only help if there is a public debate embroiling the court in terms of getting them to pay some heed to their standing with the public. But I suspect that while this commission is playing out over the next 180 days, Roberts might try to slow play. It caused the court’s role to sort of recede from public view. But I think it’ll just be a strategy of waiting us out. And so I don’t think that we can just content ourselves for the next 20 to 30 years as a progressive movement to hope that this six three conservative majority will be chastened. You know, the Federalist Society did not embark on this project to not like cash in on everything that they’ve done this in the name of. And so I expect that they’re going to start to harpoon some white whale sooner or later. And so I really think that we can’t just content ourselves to suggest ideas like court expansion. We have to actually pursue them and try to see them through or else wouldn’t be trouble.

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S1: Brian Fallon is co-founder and executive director of Demand Justice, a progressive movement fighting to restore balance to the courts. Before that, he worked as director of public affairs for the Justice Department in the Obama administration. And before that, he was a top aide in the U.S. Senate working for Chuck Schumer. He also served as the national press secretary for Hillary Clinton’s presidential campaign. Above all those things, he has been my hardball whisperer for quite some time. And I, I tend to be more comfortable, as you know, Brian, in the world of softball. But I really, really appreciate the rigor and the passion you have brought to this. And thank you for being with us this week. I know you’re crazy busy.

S3: Thank you for having me. And thank you. Long before I got behind any expansion proposals, long before I got invested in this issue, you’ve been one of the voices in the wilderness shouting out for more attention and engagement around this issue. So thank you for how you use your platforms to inform and educate folks about this issue that has for too long, but take it for granted by progressives.

S4: And that is a wrap for this episode of Amicus. Thank you so much for listening in. Thank you so much for your letters and your questions. You can always keep in touch at Amicus, at Slate, Dotcom. You can find us at Facebook dot com slash amicus podcast. Today’s show was produced by Sara Burning Him. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. And Jim Thomas is senior managing producer of Slate podcasts. We will be back with another episode of Amicus next week. We’ll see you on the other side. Take good care of each other, wear your masks and please drop your ballot off to mail it in. Thanks for listening.