S1: The Department of Justice is taking the position that, well, in both cases, the court recognized that the president is special and we’re arguing that the president is special. QED, we win.
S2: We’re living in an age of impunity. And impunity, of course, is not just the fact that people do illegal things, but that they get away with it.
S3: Hi and welcome back to Amicus. This is Slate’s podcast on the courts and the law and the rule of law and the Supreme Court and many other things that have the word law in it. I’m dial with Wick and I cover those topics for Slate. So this past week, the court was finally done with its real time telephonic argument experiment. And now what looms for the remainder of the term are decisions that are pending in a slew of unbelievably important, consequential cases. So we want to talk a little bit about the financial records cases that were argued last week. And we also want to reflect on how those Real-Time telephone arguments fared in terms of, well, justice to the justices themselves. And we’re going to be talking to Leah Lippman about that. There’s also just some tealeaf reading that we can do while we wait for the decisions to come down. And Slate plus members are going to get to hear from my co jurors, Prudential Tealeaf, Confederate Mark Joseph Stern on all of that. Now, later on in the show, we’re going to do something a little bit different. We’re pretty intentionally on this show, usually a little bit myopic.
S4: It is, after all, chiefly a podcast about the U.S. legal system. But sometimes we like to take a few steps back or jog a little bit sideways. I’m thinking, for instance, of our conversation with the Reverend Dr. William Barber of the Poor People’s Campaign. And I always think we’re better for it when we’re just slightly outside of the narrow focus on U.S. courts and law. So we’re going to spend a little time today with David Miliband. He’s president and chief executive of the International Rescue Committee. And we’re going to try to talk about the receding rule of law around the world, not just in the United States, the need for global leadership on questions of law and democracy, and maybe a little bit about how this pandemic that is tearing through the international community is helping to lay bare what fundamental democratic and rule of law weaknesses. We all have globally. So first, we’re going to turn to Leah Lippman for a quick peek at the numbers behind telephonic arguments. And we’re going to try to do a wrap up of the financial records cases. Leah is a dear friend of the show, an assistant professor of law at the University of Michigan School of Law. And she’s one of the founders of Strict Scrutiny, which is one of our favorite sister podcasts about the Supreme Court. And she’s also a frequent contributor to pretty much every publication that you read, including this week’s Late Solia. It’s great to have you back. Welcome back to the show. Thank you so much for having me. Of course. And I want to start before we get to your newest data crunching. I want to start with the just the two financial records cases that were argued last week at the Supreme Court. It was an off week for this podcast. Can you just sketch out as quickly as possible for listeners who are maybe not as red in as you are? The issue that confronted the court and I think the biggest separation of powers case I’ve seen in a long time.
S1: Yes. So the separation of powers case involved the legality of several congressional subpoenas that were directed to financial institutions that maintain the president’s financial records and the financial records of some of his children. Those subpoenas have been challenged on the grounds that Congress doesn’t have the authority to launch those particular subpoenas. And the cases involve two sets of arguments, because you have the president’s personal lawyers arguing on behalf of the president and then the Department of Justice participating as an amicus, arguing on behalf of the institution of the presidency. The president’s personal lawyers took the extremely broad position that essentially Congress can never subpoena the president because Congress needs to only subpoena when it is doing so in aid of legislation. And Congress can never legislate qualifications on the office of the presidency. I think it was pretty clear that that particular position was not going to garner a majority of the votes. However, the Department of Justice’s position was arguing for a slightly narrower wine, which is at least with respect to the president or the office of the presidency. There needs to be showing the Congress has a legitimate. Legislative purpose. And that argument. It is possible, might prevail. It seemed like by the end of the argument, there were five justices who were skeptical of the House of Representatives position that these subpoenas were valid. And so that seemed to be the way the argument went. But, of course, it’s difficult to read too much into that.
S4: And that case was twinned with a case that raised some of the same issues, except this time it was the state of New York seeking to subpoena some of the same financial records.
S1: Yes. So the New York case involved is a grand jury subpoena. And because that case did not involve congressional authority or really the separation of powers, but instead was more of a pure presidential immunity case that is more closely governed by cases like United States versus Nixon, which involved the Watergate tapes, or Clinton versus Jones, which involved the ability to sue the president civilly while the president is in office. It seemed like a majority of the justices were more sympathetic to New York’s position in that case.
S4: Am I right to say live that again in that case? Trump’s lawyers took a much, much, much more extreme position than the Justice Department, which was, as he said, tagging in as Amica.
S1: Yes, absolutely. So in the New York case, they are arguing for what they call temporary presidential immunity. The Department of Justice, by contrast, their fallback position is something like, well, you need to make an extra special showing that you really need this particular information and can’t get it someplace else or some version of that. So in both cases, the Department of Justice was essentially providing a fallback position to the more extreme position advanced by the president’s personal lawyers.
S4: And how much I think you touched on this. But let’s talk about it for a minute. How much of it in the congressional cases was I heard in arguments, particularly from some of the conservative justices, a real kind of animus and antipathy to Congress, a sort of sense that they were acting in bad faith, that these quests for documents, presumably for legislative purposes, was pretextual? There was a weird sense in which I almost felt as though they were saying, look, this is just a regular president doing regular stuff and this is just a particular really bad actor. These House committees.
S1: Yes. So the president is fond of the phrase presidential harassment when it comes to any attempt to exercise any oversight over him, including when it comes from Congress. And that concept came up at argument several times. Justice Alito in particular used the phrase presidential harassment the most. But the chief justice and the assistant to the solicitor general, Jeff Wall, also oftentimes fell back on this concern of, well, Congress might be harassing the president here. Their true purpose is only to expose wrongdoing. And so some of the justices and even the Department of Justice that was arguing for a less radical position than the president’s personal lawyers seem to be very fixated on the notion that the real bad actor here is Congress rather than the president’s secret potential financial entanglements with foreign governments.
S4: And you have two precedents, as you mentioned, both the Watergate Nixon precedent and the Clinton Paula Jones precedent that cut against the administration. What did the justices who want to make those go away do with those? I guess I should note unanimous precedence.
S1: Yes. So the Department of Justice is taking the position that, well, in both cases, the court recognized that the president is special and we’re arguing that the president is special QED. We win. I think the problem with that oversimplification. Well, there are several problems with that. Justice Kagan explored some, all identify a few more. Is both cases definitively rejected the idea that the possibility that the president might be distracted or humiliated by subpoenas directed to him or civil litigation, that is very embarrassing. That can’t be sufficient to make the litigation or the subpoenas invalid. Additionally, the heightened showing in the United States versus Nixon that was required in that case was because that case potentially implicated the office of the presidency and executive privilege. Here it is, personal papers that predated the president ever taking office. And so there’s no claim besides really mental distraction or the possibility of embarrassment for how this could impede the president’s ability to carry out his duties or make the office work. But the justices who are sympathetic to the president’s position seem to seize on the idea that both cases loosley stand for the idea that the president is special. Let’s make him super special.
S4: Leo, you suggested earlier that one possibility is that Trump prevails in the case that has to do with the three congressional subpoenas, possibly loses in the New York grand jury subpoenas. I think there’s another possibility, at least that I’ve heard floated. If the court’s trying to find a way to sort of split the baby here of just saying, oh, no, we’re going to kind of create a new standard and refine the standard and kick this back to the lower courts effectively, meaning that nothing gets resolved before the election. What’s your view on the possibility that they just kind of put this on pause, as they have done historically with a lot of hot button cases?
S1: I think that’s very possible in both cases. And frankly, even if they straight up affirmed the 2nd Circuit decision and said this New York subpoena is totally valid, that information is never going to become public before the election. Given the grand jury rules regarding secrecy and so even a straight up affirmance doesn’t mean that information is going to come out, at least in the grand jury subpoena case. And that is the case where it seemed like, you know, the president was on the more likely losing side, although you’re right. You know, some of the justices didn’t seem to be floating the possibility of, well, how about we kind of create this new slightly modified legal standard somewhere between New York and the solicitor general’s position and send it back? I think the problem with that and the reason why that might not happen is the Second Circuit opinion was written by Judge Katzmann on the 2nd Circuit, who is insanely careful and thorough. And he really took care to note that the president had made no attempt to argue or show that there was any impediment undermining his ability to perform his duties aside from distraction. And so he basically already resolved the case under a hypothetical alternative standard that required you to balance the necessity of the information against the intrusion on the office.
S4: So it sounds like you’re saying and I think I agree, that the chance that with the stroke of a pen, the court allows the world to see these Deutsche Bank and Masers and other financial records before the election are pretty close to zero. And I guess I would add the caveat that even if we could see them, we wouldn’t know what to do to make of them anyway in time to be sort of any kind of decisive factor in November 2020.
S1: I think that that’s completely right. Although Justice Alito seemed to harbour a conspiracy theory that all of the New York district attorneys were always on the phone with The New York Times and willing to leak this information at the drop of a hat. But that’s also never going to happen, despite his wild conspiracy theories.
S4: So I want to turn to your. You did a really amazing quickie study. And I should note that you wrote it up for Slate this week, just reflecting on some of the trends in the telephonic arguments with the huge qualifier that you start with, which is that this is a small subset of cases that you’re trying to derive conclusions from. But can you just describe to us sort of what it was you were looking for and how you tested your hypothesis?
S1: Yes, absolutely. So Supreme Court arguments are typically a free for all where any justice can speak whenever they would like. And the chief justice’s role in that setting is to moderate when multiple justices try to speak at the same time. But in the court’s telephonic arguments, the court used a different setting where each justice spoke in. Order of seniority. And in that format, the chief was in a position of policing each justice’s compliance with rough time limits, ensuring that each justice kind of had the opportunity to speak for roughly the same amount of time if they wanted. And so I was interested in his kind of ability to carry out that goal. So what I did is I listened to all of the arguments on audio Arguendo, which is a wonderful service that uses unedited arguments and makes them available via podcast. And so I listened to the arguments and marked the point at which is justice was allowed to begin their questioning period. And when they’re questioning period ended either by the chief justice or the justice themselves. And I marked all those times, calculated them ransom averages, compared numbers across different cases. And that was, you know, kind of what I was looking for.
S4: And talk a little bit about I think that one of your at least from a gender perspective, one of your leaping off points was this 2017 study, that kind of clock gender and ideology and who was interrupted at the court. So I think start by by sort of laying that out and then unschool what you concluded this week.
S1: Sure. So the 2017 study was by Professor Tanya Jacoby at Northwestern, together with one of her former students still in Schwitters and in a piece called Justice Interrupted. They studied a database of Roberts court oral arguments through 2015, as well as some arguments from the Burger Court era and the Rehnquist court era as well. And based on that larger sample, they attempted to measure which justices get interrupted and which justices interrupt in the more freeform structure. And they concluded, based on that study, that gender plays an important role. Female justices are interrupted more frequently than their mayor. Male colleagues, their male colleagues interrupt female justices more than male justices. And it’s not because they concluded the female justices are talking more. They also concluded ideology plays a role. Justices are more likely to interrupt justices with whom they disagree. But the conservative justices are more likely to interrupt more liberal justices than liberal justices are likely to interrupt the conservative justices. So I was curious whether that was also going to hold true, at least as it could in this new setting. And I think in some respects it did. So, for example, the longest questioning periods that were given to justices, the three longest went two men. Two of them were Justice Alito. The other was Justice Gorsuch. And in fact, Justice Alito’s longest questioning period was almost a minute and a half over a minute and a half longer than the longest questioning period that was given to female justice and a liberal justice. And that was Justice Kagan. I also measured the total amount of time that the justices had in particular arguments that is adding up all of their different questioning periods here to the three longest, total amounts of time in an argument went to men. Justice Kavanaugh had two of them, both in the presidential immunity cases and Justice Alito had the other. And here to Justice Alito’s longest, total amount of time was almost a full minute longer than the longest period given to a female justice or a liberal justice. So those were some of my high level findings. I do want to note, in some respects, the chief justice succeeded at being even handed. If you calculate the average length of a questioning period across all of the arguments, the justices who spoke the most were Justice Sotomayor and Justice Kagan, followed closely by Justice Alito. But I think that that even handedness broke down some in the more ideological cases, in particular the contraception case and the presidential immunity ones.
S4: And Lee, I guess you’re describing two different phenomena. One is allowing some justices to go long. The other is cutting off some justices. I guess they’re slightly different. And I understand that there’s a sort of gender valence going on there. Did you have some sense? And I don’t know if I heard this play out, but I’m curious that the chief was cutting off liberal justices just as they were sort of coming to a whomping. Big conclusion or an important question, or was it more just tick tock? I got to move along. In other words, how. I don’t want to say the word sinister, but how much was he deliberately allowing Justice Cavenagh or Justice Gorsuch to arrive at some material moment, a kind of gotcha moment? And how much of it was just trying to be fair and not quite nailing it on the gender and ideology?
S1: I think it’s honestly a combination of the two. So I measured how each questioning period ended, whether it was the chief or the questioning justice. And when it was the chief, whether the chief was interrupting an advocate, a justice or waiting for the advocate to pause. And by and large, the chief justice interrupted an advocate or ended after an advocate concluded their remarks. But on eleven occasions he interrupted other justices, and all eleven of those occasions were Democratic appointees, and many of them occurred in the presidential immunity cases at what I think were, as you would describe, moments where the Democratic appointees were going in for a kill shot. So, for example, Justice Breyer is questioning the president’s personal lawyer about whether, under his theory, all of the Watergate subpoenas would be unlawful. And that is the moment where the chief justice cuts him off. Or Justice Ginsburg is questioning the assistant to the solicitor general on whether, under his theory, Clinton versus Jones involved embarrassing litigation that would have distracted the president there to the chief justice, cut her off. And so I think it was a combination of the chief justice trying to police the time limits and giving Justice Alito a little bit more latitude on the time limits, which then led to giving the junior justices that follow. Justice Alito additional latitude, but also cutting off the Democratic appointees in these extremely high stakes, ideologically salient cases where they were kind of getting a roll and the length of their questioning periods. Again, Justice Ginsburg and Justice Breyer came nowhere near, nowhere near in those cases, the length of the questioning period given to Justice Kavanaugh in particular.
S4: So I guess before we wrap, I should ask, in your opinion, having looked at this really carefully, you know, I think Marc Stern and I had some impressionistic sense that it didn’t seem entirely fair. We missed the flow of an oral argument. That’s a free for all. But by and large, more transparency, better. And we should continue telephonically, if not have cameras in the court as soon as we can. What’s your take away?
S1: I also think having these live feed was great, but I do think the court needs to modify the format going forward. If it keeps this kind of Syria item format where it questions the advocates and orders of seniority, that I think someone other than the chief justice should keep time because clearly he wasn’t able to fairly keep time while also participating in argument. But an alternative would just be using their usual argument format over the phone. And I think that that might be preferrable or at least worth trying.
S4: Leah Lipman is an assistant professor of law at the University of Michigan Law School. She is one of the founders of the amazing strict scrutiny podcast and a frequent contributor to every single publication you’re either reading or should be. Leah, thank you so, so much for your time. He was just a really smart first take on telephonic argument. Thank you.
S1: Thank you again for having me. And for those kind words.
S4: And now that promised pivot away from Supreme Court justices to global justice, the destabilisation wrought by this current pandemic is, I think, showing in pretty stark relief how much we have to learn about the ways our legal regime intersects with the rest of the world and how questions about refugees, international treaties, the rule of law itself are actually transnational problems that do not stop. Much as we may wish them to at the United States border. So I knew exactly who I wanted to have that kind of conversation with. David Miliband is president and chief executive of the International Rescue Committee, a non-profit humanitarian group based in New York. Founded in 1933 at the call of Albert Einstein, the I.R.S. is at work in over 40 countries and over 20 US cities, delivering food and medical aid and education to people upended by conflict and disaster. After serving as British foreign secretary and then leaving UK politics, David came to the US to help this massive refugee project, and as a result, he’s had a front row seat to the ways in which global politics has responded to and exacerbated the refugee crisis through legal systems that have. I think he would say, failed to rise to the occasion and are now just floundering in the midst of a pandemic. I wanted to talk to him about this big, big world view. The rule of law around the globe and what Cauvin has taught us about interconnectedness within the world and what he has come to call, quote, the age of impunity. David Miliband, welcome to Amoco’s.
S5: Thank you, darling. I’m a big fan. So nice to be with you.
S4: And I wonder if before we get to the big, big, big picture, we can just start with you British.
S5: I don’t like to talk about myself. You’ve got to remember.
S4: Well, that’s what we’re gonna do the hard part first and get it out of the way. But I wonder if we can just briefly trace your path through elected office, through parliament to the I.R.S. And I think they just want to start on this note that you I’ve heard time and again talk about your parents as refugees and how that has centred you throughout your life.
S5: When I wrote a little book in 2016 about the refugee crisis called Rescue Refugees and the Political Crises of Our Time, I was struggling for how to start the book. And then I was on a train to D.C. and I wrote this line, which I think goes to the heart of your question. And it said, The first refugees I ever met were my parents. Now, I didn’t actually spend my childhood thinking of them as refugees. I knew they were foreign. Because my dad always had a bit of a foreign accent. He’s no longer with us. And they had this extraordinary group of friends. Sorry if you can hear the remnants of home schooling downstairs, that’s just sort of part of the modern world that we live in. I assure you that the squeals and the screams are only about being forced to homework. Nothing extra legal about it. There was this great sense that they they’d rooted themselves in Britain, but they retained that international perspective. But I was born in 965, which is a long time ago. But it’s striking to think 1965 is only 20 years after the Holocaust. And so my parents were both refugees from the Holocaust in different ways. My dad came with his dad in 1940 from Belgium. My mum survived the Holocaust in Poland and came to the UK on her own as a 12 year old in 1946. And they were both refugees and they wouldn’t be here if the UK had not admitted refugees. And they did what many immigrant and refugee families tried to do, I think, which is to shield their children from having to relive the traumas of their parents. So they didn’t spend my childhood telling me, look how lucky you are. If only you’d known how terrible my childhood was. They spent their time just trying to support us. There were two kids. And so I think it’s only later in life that I and really when I came to think about this job at the International Rescue Committee, that the sense of closing a circle became clear. I can’t claim I wouldn’t claim that in my political life I’d kind of prioritize refugee issues. I didn’t think I was foreign secretary. I gave a lot of space for human rights issues, but it wasn’t coming through a particular refugee lens. But I do think that, in fact, when I applied for the job to be the CEO of the International Rescue Committee, I said there were three reasons why I wanted the job. What I like lists. So I just came in and I hit them between the eyes. Three reasons. One, I said I thought that the question of how you deliver aid to people who are on the run. Violence and conflict presented some of the most challenging public policy issues there was, how do you get education to girls in Afghanistan? How do you tackle sexual violence in Congo? How do you support peace internally displaced people in Syria cross-border? How do you persuade local populations in Uganda or Jordan or Bangladesh that they should allow refugees to get jobs? Those are hard public policy questions. I was interested in them. Secondly, I said I thought the International Rescue Committee was a bit of a sleeping giant. Mean you can’t do better than being funded by Einstein, yet no one knew that it was founded by Einstein. And I thought that it needed to really play a distinctive role in the humanitarian space as an organization. It wasn’t a general anti-poverty organization. It’s a organization focused on people whose lives, as we now define it, people’s lives are shattered by conflict disaster. But thirdly, I said, look, my parents were refugees. And so there’s a closing of the circle in me in some kind of indirect way, showing my recognition of what people did to help save my parents.
S4: And by doing some work that supported people on the run today, that I was recognizing that that it seems to me that at least a big part of your tenure at HRC has had you living in New York in the midst of a real American questioning of how it thinks about foreigners, travelers, refugees, economic migrants. And I I guess I think you must have this funny vantage, having come to it later than so many Americans who sort of thought that the Statue of Liberty meant what we thought and the Emma Lazarus poem meant what we thought. You come to this sort of dropped into the middle of a Trump Stephen Miller rewriting of American history to be unbelievably hostile to people who are migrating for any reason, including not just economic reasons, but including unbelievable violence and hardship. And I wonder if that vantage. Made it easier or harder for you to understand what, for instance, the travel ban which was passed the first week Trump was in office. Was that astounding to you, that there’s a bit of distance?
S5: I mean, but there are two aspects that have really not preoccupied me that struck me while I’ve been here. One is. When I arrived, I was told. Refugee resettlement is a bipartisan U.S. policy. President Reagan invited more refugees to come to the country than anyone else. And the hostility, which is a good word. The hostility of the administration to the people that we’re serving is very comprehensively and assiduously and consistently articulated and promulgated. And secondly, this has been a time of enormous. Challenge to the idea of America as the leading country. That is an exponent, as is a demonstration, is a poster child for the idea of the rule of law, as the foundation of the republic. If you come from a constitutional monarchy, as I do, parliament is sovereign and parliament can do anything except bind future parliaments, because by definition, if a parliament do anything, you can’t bind a future parliament. But if you come from a constitutional republic, if you live in a constitutional republic, then there’s a body of rights and law that should be inviolable. And actually what we’ve seen is that they’re not. And the famed checks and balances of the American system that I learned about as a junior high school student in Newton, Massachusetts, in 1977, and then saw as a graduate student in my in the late 1980s, that’s under siege. I would say both those are focused Fokine of political division. And so that’s been quite striking to me because I don’t feel it in my heart in the same way that you would. I’m not a citizen of the United States, so it’s it’s not quite the same kind of emotional blow to an image of one’s own country. But I do see the country I came come from, the US and other liberal democracies are standing for something really important in the world. And so the fact that 113 countries since 2006 have suffered democratic recession, quote unquote, according to Freedom House, less free judiciary, less free elections, less free press. And America is part of that story, albeit one starting from a high base, is very striking indeed. Now, I’m lucky I don’t have people saying, well, you know, what are you doing here? But the sense of the country turning on its own roots is quite an extraordinary thing to see.
S4: And I don’t know if this dovetails with your background in politics, but I do see this strain through a lot of your writing, in your speeches and your thinking this sort of profound mistrust of nationalism, governance by Pleva, say the new populism. I’ve read a lot of your critiques of Brexit and I think of Trump and Trump ism. And I wonder if. You’ve given up on government or if you think that kind of constitutional government has lost its way. In other words, is I.R.S. a relief because at least you don’t have to deal with the fact that government got stupid in your lifetime?
S5: No, no, I don’t. I haven’t given up on government. It’d be more accurate, say politics gave up on me before I gave up on politics. And I don’t believe you can have big social change without government. But the formula I give people, I say, if you want to have big social, economic, environmental or other change, you need three things. You need government leadership. You need business or NGO innovation, and you need mass mobilization, but you don’t necessarily need them in that order. And at a time when governments are in retreat from big problems, then my narrative is that you need business and NGOs and civil society to mobilize to to lead and also to come first. I don’t buy these arguments that say, well, you know, we can tackle the environmental crisis without government regulation. We can we can defend the rule of law. Without government, we can advance the rights of refugees, without government. I don’t believe that. And so I think that what I would say is that if you’re in government, you’ve got much more power than if you’re running an NGO. But you also face more obstacles to getting anything done. And so there’s more room for entrepreneurism in an NGO, albeit I’ve I confessed to having been forced into this. It’s not like I decided that I wanted out of politics before I lost elections. That meant I wasn’t in politics, if you know what I mean.
S4: So you’re not seeing that NGOs big business are rushing in to fill the voids that government?
S5: Well, we’re filling a void in leadership, but we’re not going to be we can’t solve the problem without a government. It maybe is worth saying for people. International Rescue Committee works across the arc of crisis from the war zone in Yemen or Somalia or Syria to the internally displaced who are in those countries but have fled from the fighting to the refugees across the border to the third countries where refugees are finally integrating into society like in the US. And the age of impunity I talk about is the retreat from not core values, although that as well, but retreat from core commitments that were instantiated in some of the international legal regime that you grew up in the post Second World War period. But I’m also struck that the age of impunity has gone along with this democratic recession. And so at the age of impunity abroad is. Fueled consistent with the lined with, but I think fueled by democratic recession at home and a loss of soft power in democratic countries, which you’re seeing in the Kovar crisis. I mean, is the message of the troubles that America is having dealing with its crisis at home is being used around the world. So you see, democracy doesn’t work. And so I think that from my point of view, I come from a sort of center left position in Europe. We’d say Social Democrat. And if people know what that means in America and all these words, progressive, liberal, they become so contested but vilified, I say in a European context. Look, the job of Social Democrats in the 20th century was defined as using the political rights that had been gained in previous centuries to argue for social and economic equality. When I say now is that argument for social and economic equality remains an absolutely core job. But Social Democrats have to defend liberal democracy as well. And the defense and sustenance and renewal of liberal democracy. And you said I mean, I liked quoting Atley and Thatcher to British prime ministers. Referendums are the refuge of dictators and demagogues. That’s what we have to beware in the encroachment on the strength of liberal democracy.
S4: So this is exactly why I wanted to talk to you. I heard you speak. My God. It feels like five hundred and twenty years ago, David. But I think it was early 2020. And you talked about Lawyers for suckers, which is also part of the age of impunity. And I wonder if you can deconstruct for me the connection in your head between the rule of law and the fact that we have now, in your view, I think replaced. Regimes in which the rule of law is paramount. With regimes that for all sorts of reasons, don’t praise the rule of law and how that connects up to this almost contagion, as you describe it, where one government after another looks around at the world and says, hey, it’s true, the law is for suckers.
S5: I pack into this because unexplained because I’m not saying the law is for suckers. No, no. So in north west Syria, 85 health facilities have been bombed by a combination of the Syrians and the Russians. And that’s clearly contrary to international law, international humanitarian law. Two men driving an ambulance for the International Rescue Committee were targeted by Russian missile and killed. So aid workers are getting targeted also clearly contrary to international law, international humanitarian law. And so it’s in that context that I coined the idea that we’re living in an age of impunity and impunity, of course, is not just the fact that people do illegal things, but that they get away with it. And in my head, we go from the impunity we see towards civilians caught up in war to military and commanders and politicians who are taking those decisions. Sure. In the knowledge that they’ll get away with it. So there’s no accountability to then say, well, that is a philosophy of the law is for suckers because the law exists. But I don’t need to follow. Now, we then got a set of domestic trends and we have to we have to be careful. Remember, Sudan has gone from being a dictatorship to being a representative government in the last six months. So we got to choose what we’re talking about carefully. But we have a fact that the majority of countries in the world have suffered democratic recession in the last 13 years. And that is in striking contrast, the period of the fall of the Berlin Wall and the rise of what was called the third wave of democratization in the 1990s and early 2000s. And I think that you can see that there are some advanced industrialized countries that are suffering this democratic recession. Those are countries like Hungary will be a very good example, extreme example in some ways. But in the European Union, which is a values based organization, not just a geographically based organization, and obviously the challenge to the rule of law that you discuss on your podcast here in the United States, instantiated in too many measures to mention and all of them very troubling. That is also evidence of people believing that they can flout the law and get away with it. And I think it’s also important to have a codicil to this flouting norms as well as flouting law, because sometimes norms are embodied in laws, sometimes laws that are embodied in norms and sometimes norms provide an alternative to laws. And the US Constitution embraces that. Sometimes norms are stronger than laws and sometimes laws are stronger. The norms and the danger at the moment is that norm breaking is free, but not illegal. But it’s a fine line between norm breaking and law breaking and then law breaking becomes more common, and that’s doubly dangerous when those who sit in judgment about whether or not the laws have been broken are political players, not just independent jurists. The politicization of the judiciary that is part of the American system, after all. But it was constrained by norms. Those norms have been broken. And you’re now in a situation where the judgment about whether or not something is inside or inside or as a line that undermines the rule of law as well.
S4: I don’t disagree at all. But I think Americans have fallen prey to the conviction that things that are largely norms are law and that they’re enforceable in some way, and that what we are now seeing is the corrosion and the disintegration of norms. And I guess I’m still trying to tease out the contagion factor, David, that this happens. You know, as you say, it’s happening in Russia. It’s happening in Saudi Arabia.
S5: That’s a very good point. I haven’t addressed that’s all. The contagion factor, I’m afraid, is not that America is copying others. But when America goes into retreat. Others use that as an excuse. And so what you’ll see is plenty of leaders, politicians around the world railing against journalists. They start by running as, quote unquote, fake news and end up railing against journalists. You’ll see people saying, well, look, America doesn’t allow asylum claims, so why should we? The contagion effect in this democratic recession of the last 30 years can’t all be blamed on America. That’ll be ridiculous. But we are seeing that in refugee and asylum policy status as an example that leaders who want to emulate some of the U.S. tactics will use the American example as an excuse. And this Kovik crisis has led to a freezing of borders. There aren’t any refugees coming into America at the moment. That doesn’t mean people are desperate to come here. I mean, the administration this week has said that fleeing for your life, fleeing and claiming asylum is no longer an essential reason to travel. Now, what could be more essential than fleeing for your life? And then the answer is yes. But not all of the people who are fleeing are fleeing for their lives. Miserable. That’s what we’ve got an independent process for, assessing asylum claims. That’s a check. But if you awfully for your life or you think you are migrants, you should have a right to be having your claim efficiently and independently assessed.
S4: Can you talk a little bit about what Colvard has meant for the work on the ground that you do? I mean, I again, I heard you speak in January. The work on the ground was pretty grim pre-K over there.
S5: I mean, I was on the phone today. I was on the Zun today with our team. She was yesterday morning in the Democratic Republic of Congo. Not sometimes sometimes the Democratic Republic of Congo. And there are five ventilator’s in the whole of the Democratic Republic of Congo and there are 100 million people in the Democratic Republic of Congo. And it’s the size of Western Europe, literally in giraffe all space. So what we say, there’s a double emergency, there’s a health emergency because some of the underlying health conditions are comorbid in a dangerous way. With Turbit, there’s an economic and social emergency because livelihoods are cratering, violence against women is rising. Those two emergencies are kind of powered by the third emergency, which is the total absence of government international policy. I mean, the rescue committee has not received a penny from the US government in this crisis. And so our teams on the front line are trying to do prevention, soap washing, hand washing, fever testing, isolation of people who’ve got fever or got covered. And they’re doing it with one hand tied behind their back in conditions where if you get it and you need hospital treatment, your prospects are utterly grim. And we’ve been spared so far because the places we work are not the sort of hubs of the global economy. I mean, they’re isolated, but it’s coming. I mean, there’s 45 days for the first 5000 cases in Pakistan, two days for the last 5000 cases in Pakistan. Half of all Afghans tested now getting tested positive. And so what it means for us on the ground is that our staff are at risk and our first duty is to protect them, but also to do our job. We’ve got to protect them. We’re trying to keep our health facilities going and we’re trying to adapt our education, our child protection, our livelihoods work to be covered, proofed. And that’s that’s easier said than done.
S4: One of the things that I’ve always found inspiring about the way you think is that you’re very deft at saying, look, we know how to solve things. We know what to do for refugees. We know how these are not intractable problems. There is no public will to do what needs doing. And I wonder if you have a similar I know what I would do if I had infinite dollars and infinite commitment from world governments. Do you have that kind of list right now?
S5: I don’t want to seem like I’m a no. Because I also will tell you. But things I don’t know. But as it happens when it comes to infection prevention and control, we know what we’re doing. We’ve done it on Ebola. I mean, when I was speaking to these DRC, Democratic Republic of Congo teams, just they were still in 84 health centers in the eastern DRC fighting off Ebola. We’ve had 22 Ebola free days. So they’re trying to get to 42, which is the cutoff. I mean, I think I do know what if you had infinite dollars, you’d really have a four step. Well, five step plan, actually, one, you go gangbusters on prevention, including on combating fake news so that you’re getting trusted information out, including the fever testing, the isolation centers. We’re building them in Cox’s Bazar, the largest refugee camp in the world in Bangladesh. Secondly, you augment your primary health care structures. You don’t try and send 10000 ventilators to Congo. That’s not gonna do any good. But you do make sure that all the staff have PPE, that you’ve got oxygen, that you’ve got the other therapies that can help save lives. Thirdly, you mitigate the short term collateral damage of the virus on livelihoods and on violence against women by, first of all, doing cash payments to people in need. Because we know that effectively, if you had a universal basic income for refugees and displaced people, you’d do a hell of a lot of good. But you also put in place some of the women’s protection, safe spaces, et cetera, that we know make a difference. The fourth thing you do is you would go on a massive adaptation program of the wider services that we provide so that the kids don’t lose education and you don’t lose the gains that have been made in education. And the fifth thing you do is you vow absolutely strongly that that you’ll make sure the last 10 miles for the vaccine ah ah ah covered sooner rather than later. And you say, look, we could easily be waiting 10 years for the vaccine to reach the kind of places that we were. But we going to make sure we’re not willing to do it within three for the sake of argument. Now, if you did those, you’d need that. You’d need a reasonable amount of dollars, but a fraction of the trillions of dollars that are being pumped into Western economies. And so I think that there is a recipe now. There’s a bigger picture, though, and the final part of that apology is the long answer. That’s all short term reaction. You also then have to say, hang on, there’s a bigger global lesson here and the global less. My thing is blindingly obvious, the holes in the safety net domestically and the holes in the safety net internationally. Are not just a threat to the people who are stuck in those holes. They are a threat. The functioning of the global economy and society. So in the same way that the American workers who have no paid medical leave and therefore don’t dare not go to work, even though they’re feeling a bit iffy. And thereby threatened to spread the disease. They’re matched by people internationally who are going about their work, who have no access to the kind of health facilities that we have here and end up spreading a virus that does spread internationally as well as locally. And so you’ve got four reasons of head as well as ha. You’ve got to vow that the next 10 years are about filling the holes in the global safety net. And that’s a big project that takes multilateral agencies much more than aid projects, takes national governments. It takes us ceasefire’s. And any good, as the U.S. surgeon general’s been calling for? That would mean that we’d got a flying chance of hitting those sustainable development goals for 2030 rather than being miles off track, which is where we are at the moment.
S4: So I remember early in the pandemic when there was this. Very aspirational line of journalistic pieces. I might have penned one or two myself, David, that said this thing that you have just identified will be the lesson of Cauvin, that it has peeled away the vulnerabilities in the American capitalist project. It is peeled away international vulnerabilities. We’ve all figured out we’re going to understand that there are not boundaries to states within the United States. There are not boundaries between country. The whole world is interconnected. We rise and fall together. These luscious post-World War two lessons that we have somehow failed to internalize in 2020. I’m not sure we’re learning that. And I wonder if you have any hope that this global retreat that you’ve described. When we first started talking can be reversed by. I mean, this seems like an amply illustrative moment in which to say, hey, David’s been right all along. We are connected to each other and we can’t hive ourselves off and build moats.
S5: Well, there’s a contest, isn’t there? And the contest, you can see it here, the contest is do you blame? The global system for the pandemic or do you blame the mismanagement of the global system for the pandemic? And that’s a contest. Now, the trouble is that there’s not enough people making the counter position to the argument that it’s everyone else’s fault, not ours. I mean, the truth is, if you look at the death rates in the UK, the US, Brazil, the politics of grievance has very few answers to the dangers of covered. So there is a resort to a blame game. And I would say to people, it’s a contest. I’ve actually written about this in the New Statesman. I wrote about what I call the four contests of the post covered. Well, they’re about the global system, whether it is to blame or in fact, too weak, which is my argument. The World Health Organization, in my view, is too weak, not too strong. It’s about secondarily, the post covered world is a secondary, about a contest, about democracy back to where we started, because you’re going to have a lot of people saying, oh, these autocratic regimes seem pretty good at handling the crisis. And they’ll be saying themselves because they want their number one priority is to justify their own position. It’s a contest about privacy, which isn’t really. I don’t know enough. I don’t know. You can get much better people to talk about that on your podcast. Do you trust Google with your information? You trust government with your information? What are these apps to enforce social distancing the thin end of the wedge? Or are they actually. Can they be controlled? And then the fourth of these intersecting, therefore intersecting content. The fourth, which underpins the rest, is about global inequality and national inequality. We’ve lived in a period where inequalities within countries have grown, but inequalities between peoples have diminished. So the global seven and a half billion people are less unequal than they were 20 years ago, largely because the rise of China. But not only Boosler and national inequalities, as you see in this country, have got much bigger. Now, the national inequalities have got bigger, actually, mainly because of, well, a lot to do with domestic tax policy. But nonetheless, that debate is a is a significant part of this post covered equation. If, if and when we get to it and I would say to you, it’s a contest, this and the contest is one in as much in the analysis as in the prescription. The politics of grievance wins through its diagnosis and never having to come up with any answers. And so in this case, it will be where’s all the Chinese full? And so we should bash the Chinese. Now my position is, well, the Chinese are at fault. But actually, as the South Koreans have shown next door to China, the fact that China got it wrong didn’t mean that South Korea needed to have a massive death rate, whereas the US far further away with much more time as calamitously ended up with a hundred thousand people already dead. So I think it’s a very pregnant moment, if you know what I mean. And there aren’t enough politicians who are willing to make the internationalist case. And I’m struck that business is pretty quiet, actually doesn’t want to put his head up and civil society. Look, we always have to we I always say charity begins at home. I understand that the first duty of people is to their own families, their own communities. But charities shouldn’t at home. And that’s the point of that we have to address coming out of this crisis.
S4: And is there. In your you know, I’m struck that as I’m talking to you, there is a filament at least of American public sentiment that’s beyond just were blaming others but is actually sort of lashing itself to some, I think, fantastical and cartoonish notion of individual rights and constitutional, you know, the constitutional right to be unmasked. And really, I think deformed notions of what freedom means. And there is this raging debate, at least in journalism land, about whether we are disserving the project. You’re describing this kind of project of lifting each other up by focusing attention on a handful of people who have very distorted ideas about liberty or freedom. I guess I’m I’m trying to ask a question about messaging, which is that I think we’re so in love with certain stories in the United States about cowboys and rugged individualism and freedom that we we want to tell that story even when it completely is belied by the facts on the ground that require cooperation. So I’m just wondering if that’s a uniquely American pathology or if that’s something that’s happening around the world?
S5: Well, it’s a strange version of the old debate about whether you have the right to cry fire in a crowded theater, isn’t it? And whether you have the right to get it, get yourself to take risks, that you’ll get covered in the process, take the risk that you’ll give cover to someone else. I think that’s not the right person to. I’m not a sort of media person, but, you know, I’m not a media executive. I think that some I still have the old politicians. Harold Wilson said this, that he was a prime minister of Britain the 60s, and sailors shouldn’t complain about the sea and politicians complain about the media. And so I still have a bit of that, the back of my head. But I am struck how you don’t really have news programs in this country. It’s quite peculiar, really, that there is still in European societies. A news program. And, you know, we’re obviously not living in the age of Walter Cronkite anymore, but. And people watch news and consume news in different ways. But news and the notion of facts that underpin it provide the basis for a common conversation. And they provide a basis for a divergence of opinion and judgment. But when there’s no such thing as the truth, when there’s no such thing as a fact. When who says something tells you whether or not it’s true before you you’ve know whether or noise investigate. That’s. That’s correct. That’s corrosive. That’s that’s dangerous.
S4: We’ve washed up on the rocky shoals where every episode of Amicus ends up, which is how do we get people to believe in institutions and in knowable truth and an immutable law. So I’m going to ask you, having brought us there due to my stupid question. What gives you hope in this moment?
S5: Well, look, the only thing you can earn an easy answer to that, which I’m afraid I use in many quarters, and I hope it doesn’t sound glib, I think it’s actually quite profound. But this film crew went to the Democratic Republic of Congo and they said, if you look at the statistics, you’re depressed. If you look at the people, you’ve got hope. And so people say to me, well, you’re you’re carrying the ILC forward. I said, no, they’re carrying me forward. And while the people that we serve have got courage, resilience, humor, ambition, hope. What right have we got to give up? So I think that’s the point. But I think there is a there’s there’s something dark that needs to be addressed, which is that there’s real there’s real struggle ahead to defend gains. The notion of this. There’s the Whig theory of history that you always made progress. That’s really under challenge now, really on the chance. And I think the contest to defend the norms and laws, to go back to our earlier part of our conversation that have been built. Out of struggle. An endeavor and sometimes conflict that’s really important and that needs to unite people, whether they come from the political left or the political right. I mean, the left has got a slightly ironic we. Theirs was on the political center left. We’ve got to be conservative about some institutions and norms. And those on the right, I think, have to understand that you’ll not be able to defend them unless everyone has a stake in them. And that means taking on the inequalities that have grown so aggressively in the last period. So I think that’s a big, big project. And I’m afraid, you know, you’re younger than I am. But I think for the rest of our lives, this project about how you advance liberal Democratic goals in the and how you advance liberal democracy as it is as a way of government is absolutely defining. And that’s why I’m not a lawyer. But these issues of impunity, accountability and the dynamic between them is so important.
S4: David Miliband is president and chief executive of the International Rescue Committee, a non-profit humanitarian group based in New York that was founded in 1933 at the call of Albert Einstein. The I.R.S. is at work in over 40 countries and 20 US cities delivering food, medical aid and education to folks who’ve been upended by conflict and disaster. David, this has been, well, sobering, an incredibly useful conversation to help, I think, refocus me on what it is we’re trying to do next. Thank you.
S5: Thank you very much. It was fun to do. I hope everyone goes to visit the International Rescue Committee Web site. W w w dot rescue dot org, including world leaders and businesses.
S4: Slate plus members. It’s your favorite time of the year. It’s the cherry on top of the Amica Sunday. It is our biweekly romp through the cases and the controversies and all the really great stuff. We couldn’t quite cram into the regular show with the one and only Mark Joseph Stern exclusively for you. Our beloved Slate plus family Mark covers the court and the lower federal courts and the judiciary and so many, many other things for us at Slate. Mark, hi.
S6: Hi. So happy to be here. I hope I got to be a mirror. Cino Cherry on top. Those are my favorites, aren’t they?
S4: Little pills of poison.
S6: Yeah. But, you know, it’s absolutely worth the tradeoff to enjoy the delicious taste of totally manufactured artificial flavor that’s slowly killing you.
S4: I need to flag for our slate plus community that Mark is zooming in in front of a massive backdrop of his parrot, Lorenzo, which is a new addition to his.
S6: Yes. Yes, he’s a parakeet. He’s from a shelter. He was a stray. And we needed to get a friend for our other parakeets, Lemon. Who was a stray found in a liquor store.
S4: And I just want to note that the effect of my Zoome video is that there is a parakeet sitting on Mark’s shoulder, which would look like Long John Silver piratical. Why, yes. I don’t know if that’s a word. OK, Mark, let’s let’s do this thing. Let’s start where we teed up a few weeks ago when we talked to Phil Wiser with faithless electors, which is one of the last cases that was argued this term. And I want you to explain it. Phil explained it, I think, very ably. But tell us what happened at oral argument, because that was that was a rock’em sock’em.
S6: Yeah. I don’t think I can I can beat Phil’s explanation, but basically, this is the case where Larry Lessig, a Harvard law professor and all around troublemaker, brought several lawsuits trying to grant a constitutional right to electors of the Electoral College to vote for whoever they want. So we’re familiar with faithless electors, right? They get into the Electoral College. Their state voted for one candidate and they say we don’t want to vote for that candidate. We want to vote for somebody else. And, you know, I think that this was an ambitious lawsuit. This was an effort to throw the Electoral College into chaos. And Larry Lessig was very candid about that. He said, I hate the Electoral College. And my goal is to blow it up and make it so chaotic and outrageous that the American people feel they have no alternative but to just abolish it and have a popular vote for president. And I support that end goal of a popular vote for president. But I don’t support the means that Lessig chose here, because if 538 electors get to decide the outcome of every presidential election and ignore the votes of their states. Then we don’t really have a democracy anymore. We have 538 obscure party apparatchiks just sort of randomly choosing who will rule us. And I think that the Supreme Court viewed this the same way and with a similarly jaundiced and skeptical eye. And this was a cross ideological feeling. You had justice, Brett Kavanaugh, raising the chaos principle of judging that if it’s a close case, you want to choose the option that avoids chaos. You had Justice Elena Kagan and Justice Sonia Sotomayor saying, you know, aren’t you really kind of warping these words like elector and vote to mean something that they didn’t actually mean in the Constitution, like when an everyday citizen casts a vote? That’s really different from when an elector and the Electoral College casts a vote because the elector is serving the people. The elector is supposed to be doing what the people told him or her to do. And just across the board, it seemed like SCOTUS was not interested in taking up Larry Lessig insane campaign to blow up the Electoral College. They were like, come on, Larry, you know, bring us up, bring us a better one next time. This is not worth our time. And it seems fairly clear to me that we’ll have a lopsided vote that says, you know what, it’s absolutely fine for states to tell electors you have to vote for the presidential candidate who won the popular vote of our states. That’s how the states have decided to do it. We generally defer to the states in this area, and it’s not the federal judiciary’s job to step in and say, actually, these random 538 people are going to decide our fates forever.
S4: And I’m a big religious. Another big religious case at the court didn’t get as much attention as maybe it should have were would have in a normal year, but awfully consequential. Right. Last week.
S6: Yeah. Hugely consequential to religion cases that ask the same question about the scope of the ministerial exception to civil rights law. So the Supreme Court has said that the First Amendment’s religion clause is create this ministerial exception that says churches and religious bodies get to choose their own ministers. The state doesn’t get to interfere with their selection ministers. Sounds like a great, super non-controversial, obvious idea. You know that that the government doesn’t get to choose the Catholic Church’s cardinals and so on. But where this doctrine increasingly comes into play is when a religious employer, say a Catholic school, decides to fire someone for a potentially illicit and illegal reason. And then the person turns around and says, hey, you fired me for an illegal reason. That the employer comes back and says, oh, well, actually, you’re our minister. And so it doesn’t matter why we fired you, because you fall into the ministerial exception and you have no rights. And that’s what happened in these two cases. And one of them, it’s really tragic. The the individual was a fifth grade teacher at a Catholic school. She barely taught any religion at all. It was a minimal kind of pro forma thing that she did a few times a week. She mostly taught other totally secular subjects. She was fired after she got breast cancer. And it appears that the employer just didn’t want to help pay for her treatment. And she said, look, that’s disability discrimination. And the school turned around and said, well, you are one of our ministers, so we have an absolute right to fire you. And it seems like the Supreme Court is going to accept that extremely broad definition of who is a minister and just sort of defer to religious employers. And that is very troubling because this exception applies across the board. Right. It’s not just like Title seven sex discrimination stuff. It’s equal pay stuff. It’s disability. It’s everything. It’s all sort of the fabric of our laws, of our employment law that the religious employers are trying to poke a hole right through it. And it looks like the conservatives at least are going to go along with that, which is very troubling because there are hundreds of thousands of secular employees for religious employers. And a broad decision in this case would basically strip all of them of their civil rights.
S4: And Mark, you just locate this in this slow trudge of religious freedom arguments, essentially. Sidelining just basic civil rights law in this country, I mean, this looks like a very familiar pattern.
S6: Absolutely. And, you know, Linda Greenhouse wrote a wonderful piece about that for The New York Times where she said the way this story is framed matters a whole lot and may even matter for the outcome and that the religious employers say we want to right to choose our own religious leaders. The state shouldn’t be meddling in our free exercise. And when you frame it that way, it sounds totally reasonable. But when you say this, this religious employer wants a right to fire someone for getting breast cancer with no with no consequences. That’s not such a such a beautiful narrative for the employer. And I think the Supreme Court’s conservatives just can’t see that alternative narrative. They can’t see this as just a kind of standard disability discrimination case because there is a religious employer involved. Their hearts go out and there’s just, I think, a pretty clear favoritism toward religious employers at this court. Go back to Hobby Lobby, right. Go back to Wheaten Little Sisters of the Poor. There’s just a really strong desire to carve out this huge exception into civil rights law. And I don’t see any indication that the conservatives are going to stop that campaign.
S4: And Mark, this week, the court made headlines again by at least temporarily blocking a House committee from obtaining grand jury materials from the Mueller probe. As I said, it grabbed a lot of headlines. People, I think, put this in the bucket of here’s John Roberts taking a bullet for Trump. It’s not quite that, right?
S6: No, no, not at all. I mean, this is a sort of preliminary decision that sort of keeps everything where it is right now. It keeps the law on hold until this decision can be appealed and all parties can be heard out in a higher court. I don’t think this was at all inappropriate or unusual or surprising. This is just sort of standard administrative work of the court as cases work their way up. And it’s easy to misinterpret it. When you see the big headline on Twitter that, you know, John Roberts stops House Dems from getting Muehler apart. That’s not exactly what’s going on here. Roberts is sort of keeping the law in place for now until the parties can hash this out in the appeals court.
S4: Before I let you go, I have to ask you to weigh in. Leah Lippman just did this amazing assessment of what she thinks are some of the weaknesses of telephonic oral arguments. And it dovetails with that early critique you and I wrote, which is this just gives too darn much power to the chief justice, to traffic cop the arguments. And I think we speculated that. It would be problematic, but I think what her, again, small quantum of cases that she’s assessing 10 arguments. But do you agree that there is this really interesting gender and ideology lens that I think you and I didn’t catch when we first talked about this?
S6: Yeah, absolutely. You know, we were worried about the conservative justices framing the case, kind of like Hollow’s just talking about the religion cases. You know, when Roberts and Thomas get to go first, they get to frame the case in the narrative. However, they once that turned out not to be so much of an issue, I think Leo really nailed the bigger problem, which is that the female justices got interrupted the most by far, and the chief justice was willing to cut off the female justices, more so than he was willing to cut off some of the conservatives like Sam Alito, who got a lot of extra talking time for no apparent reason. That is obviously a huge flaw. And I think it’s potentially one that John Roberts might take into consideration if the court continues to do this, because we know that he both he and advocates were interrupting the female justices in real life in the courtroom for many years. And a study came out about that. And I think we could all tell that Roberts was trying to do better, trying to have a little more gender parity when he was playing traffic cop that sort of disappeared when we went to telephonic arguments, totally new format. Maybe we should cut him a tiny bit of slack. But moving forward, he absolutely better give Sonia Sotomayor exactly as many seconds as Sam Alito gets to ask questions, because anything less than that is showing that the chief likes Alito more than Sotomayor and also indicating some potential bias, implicit or not, toward men talking over women. That’s not something that we want our highest court to be role modeling for the rest of the country.
S4: The two things that struck me about this were I remember when justice. Ginsburg came on the court. There was a lot of criticism of her as being sort of rude and interrupt me, and then that was really in force when Sonia Sotomayor came on the court. There was this that that carried over, by the way, from the Second Circuit. But this claim that she was really, really inclined to step over people and be very, very aggressive in arguments. And I just can’t remember that criticism level that any male justice. And it’s so interesting that those are the justices who are called out for it. They’re also the ones who seem to be cut off the most. And I’m just really struck, particularly in a term with just a shocking paucity of women advocates at the court doing oral arguments that this is still happening. And I guess I want to leave you with this question. John Roberts is so sensitive to criticism, particularly of his own fairness. I wonder if this becomes another piece of fodder for the men. Maybe we should get rid of telephonic arguments altogether.
S6: I think it may. Well, in his mind. I hope it does not, because I think on the whole, you know, this works pretty well. We can certainly critique it and we should. There were obvious problems outside of flush gates. But I think it was better than any alternative the court would reasonably embrace. And so I think that we should urge Roberts to do better about letting the female justices speak and ask questions with equal time. I don’t think that we should go so hard that he feels like he needs to throw this entire experiment overboard because, you know, it worked more than it failed. And, you know, because Roberts is so sensitive to that kind of criticism, I’m going to take my foot off the gas a little. And while I fully endorse Leah’s work and criticism, and I think it’s super important, it seems like the kind of thing that can be fixed and adjusted if Roberts sets his mind to it.
S4: Mark Joseph Stern covers the Supreme Court, the lower federal courts, the state Supreme Court, the judiciary, so many other things at Slate and right at this moment. He looks like he should be wearing an eye patch and a peg leg. Mark, thank you so, so much for joining. It is always a pleasure.
S6: Always a pleasure. Back to my parakeets.
S3: And that is a wrap for this episode of Amicus. Thank you so much for listening in. And thank you so much for your letters and your questions. You can keep in touch at Amicus, at Slate, dot com, or you can find us at Facebook dot com slash amicus podcast. Today’s show was produced by Sara Burnham. Gabriel Roth is editorial director of Slate podcasts, and June Thomas is senior managing producer of Slate podcasts. And we’ll be back with another episode of Amicus. In two short weeks on.