S1: This ad free podcast is part of your Slate plus membership.
S2: Oh, yay! Oh, yay. Oh, yay. Albrecht’s was having business before the honorable. The Supreme Court of the United States are admonished to give their attention to the court today.
S3: The rule of law still exists on paper. There’s still an FBI, there’s solid DOJ, but they aren’t being used for the legitimate purposes of evenhanded justice. Hi and welcome back to Amicus. This is Slate’s podcast about the courts and the law and the rule of law. I am Dahlia Lithwick. I cover those things for Slate and we are well into month two of podcasting from my home to yours and from my home to yours. We hope you are well and taking good care. There’s been a lot of legal news this week. Much of it pouring out of the Supreme Court or more accurately, the phones of various Supreme Court justices who really made history this week with telephonic Real-Time arguments in the first of 10 arguments sessions they have scheduled for the month of May.
S1: Ordinarily, arguments end in April. So we’re going to talk later in the show with Mark Joseph Stern, who’s been listening in with me at Slate in a bonus for Slate plus members. So do stay tuned or sign up so you can stay tuned for that. So we wanted to hear from veteran New York Times correspondent Linda Greenhouse this week, both about arguments in the Little Sisters case and also just how weird it is to be listening in to these telephonic arguments. After decades of having no such access. So we’re going to chat with her about that in just a few minutes. But first, some big news that needs to be addressed on any show about the law and the rule of law. On Thursday night, the Justice Department announced it was withdrawing charges against the president’s former national security adviser, Michael Flynn. He pleaded guilty in December 2017 for lying to the FBI. He cooperated with the Mueller probe for a time and then changed his mind, fired his lawyers, withdrew his plea while his sentencing is still pending before a federal judge in D.C.. The Justice Department announced on Thursday that poufs, they’re dropping the case. Well, we’re joined by Suzanne Hennessy. She is the executive editor of Lawfare and general counsel of the Lawfare Institute. She’s CNN national security and legal analyst and she’s a Brookings fellow in national security law. Prior to joining Brookings, she was an attorney in the Office of General Counsel of the NSA. And her most recent book is Unmaking the Presidency. Donald Trump’s War on the World’s Most Powerful Office, co-authored with Ben Witness and a must read to try to get your head around what is happening in the executive at this time. So, Susan. Such a joy to have you back on the podcast. Thank you for joining us. Thanks for having me. So so will you just walk us through the zigs and zags of Michael Flynn’s actions in the transition and what he pleaded guilty to in 2017?
S4: Yes. So this is a little bit of a strange and winding tale of the world’s briefest stint as national security adviser. But essentially, the core of the issue here is that during the transition period, a period of time, which the FBI was actively investigating, Russian and Russian active measures campaign and whether or not there were any contacts with the Trump campaign at the time. Michael Flynn had a phone call with the Russian ambassador, Sergei Kislyak, immediately following the Obama administration’s announcement that it was imposing sanctions in retaliation for Russian interference in the 2016 election. And in this phone conversation, there’s actually a number of phone calls, conversations between Flynt and Kislyak. Flynn essentially says, don’t read, don’t respond. And the implication of this is that there will be more favorable treatment when the new administration comes in. Kislyak, in fact, doesn’t respond. The Russians decide not to retaliate and sort of escalate in response to the sanctions. The current United States government at the time is kind of scratching their heads. They were prepared for the Russians to retaliate. They want to know what happened. They want to know why this blowback didn’t come. And so they start investigating and they find this phone call between Flynn and Kislyak because, of course, the Russian ambassador is presumably being monitored. His phone calls are being monitored. And so they go the FBI goes and actually interviewed Michael Flynn to ask about this call. They already have the transcripts so they know what’s on it. And in the course of that interview, Michael Flynn lies. He says that he didn’t have he didn’t mention sanctions during this call at all. And it’s a crime to lie to federal investigators. And so the fact that Michael Flynn has lied becomes the basis of one, his eventually being fired by the president because he also lies to the vice president of the United States and other members of the administration about the kind about the substance of this phone call and then eventually becomes the basis under which Michael Flynn is prosecuted. Fast forward to December 2017. Michael Flynn pleads guilty, admits that he lied, that he knew what he knew his statements were false at the time. And then there’s been this sort of prolonged period of cooperation. Over the past sort of six or eight months, Michael Flynn has kind of changed his mind. He’s attempted to withdraw his guilty plea. He suggests that there’s been misconduct by the federal government in the past couple of weeks. The president of the United States has suggested he might pardon Michael Flynn. And then Thursday evening, in sort of a sort of surprise turn of events, the Justice Department actually decided to drop charges against Michael Flynn entirely and essentially abandoned the plea agreement. It is, I think, an understatement to call it unusual for the Department of Justice to drop charges after somebody has already pled guilty to them. And so that that leaves us to where we are now with sort of serious questions about why this course of action was undertaken at the Department of Justice and and what it means about sort of apolitical law enforcement moving forward.
S1: And I want you to stop there for one second, because I think that for a lot of people, it’s just, you know, six of one half dozen of another. A lot of folks think, what’s the difference between if Trump had pardoned him or if the DOJ just decides to drop charges? But institutionally, it’s a great big deal for the DOJ to step in here.
S4: It is significant, right. So there’s been a question about whether or not Trump might pardon people like Flynn or Paul Manafort or Roger Stone. And I would argue that if it were he to do so. That would be an abuse of his presidential office, an abuse of the pardon power. But it would sort of trigger a separate set of questions and potential checks and balances. And and it really is kind of the appropriate course of action. And what we’ve seen Bill Barr do actually a number of times is kind of short circuit that process. So whenever the president was suggesting he might pardon Roger Stone, Bill Barr directed the sort of last minute about face for the Department of Justice, where they suddenly recommended a much lower sentence in his case after he’d been convicted of charges here again, right as it seemed as though the president was prepared to pardon Michael Flynn. Bill Barr intervenes to have these charges dropped. And, you know, it might seem sort of insignificant because the outcome probably would have been the same either way. But it is significant because what Bill Barr is doing is politicizing and departing from longstanding positions of the Department of Justice in ways that will actually have significance on future cases. And Ray is really alarming questions about the perception. And I think at this point reality that the Department of Justice now functions as an organization that protects and defends the president’s friends, family and political cronies and targets his enemies. And that, of course, is an incredibly alarming place, you know, for our country to find itself in.
S1: And you wrote in Lawfare on Thursday night, you make the point that one of the things that this government brief, which is I think you point out, signed only by one one attorney, there is a prosecutor who actually quietly, noisily walks off the case, leaving us to assume he disagreed with this judgment. But you describe it as a kind of who’s who of blaming the James Comey FBI and everybody who are now familiar villains. You know, Sally Yates, Peter Struck, Lisa Page. Everyone’s a bad guy. And it sort of craft this now familiar story that there was a cabal of people at the FBI who were not honest brokers and they cooked up this whole process to entrap Michael Flynn. And I think it’s important for you to explain why it matters. That bar’s going after the FBI again, as an institutional matter, what that does to morale. What that does to public confidence in the FBI.
S4: Yeah, there’s sort of two suggestions within the government’s brief. And the first is, is I think the more substantive an alarming one and essentially the order of events. It is pretty complicated on convoluted. But essentially what the Department of Justice is currently arguing is that at the time that the FBI interviewed Michael Flynn, there wasn’t a properly predicated investigation. And so in order to have predicated full investigation, the standard is relatively low. It’s an articulable factual basis that either there’s a threat to national security or that a crime has been committed. And essentially what occurred here was a little bit of a bureaucratic sort of snafu or a technicality. There was a counterintelligence investigation, CROSSFIRE, Hurricane Raul now well aware of it, that had been occurring from the summer of 2016, sort of investigating Russian active measures. This guy, George Papadopoulos, who had said that there was some indication with at the campaign that the Russians had Hillary Clinton’s email, the bureau starts looking into that. And as they’re looking into that, these four individuals sort of pop up on the radar screen. Carter Page, George Papadopoulos, Paul Manafort and Michael Flynn. Michael Flynn pops on the radar screen because he has some ties with Russian financial institutions and he’s travelled to Russia. And the FBI looks into that. And by the time they get sort of two to November to the end of the year, they find some sort of sketchy things about Flynn, but nothing that sort of puts him and makes him sort of a likely likely suspect for the specific sort of conduit that they’re looking into. And so they write this memo and they say we didn’t find any derogatory information. We don’t think it’s our guy. We should probably just close this. And but they actually don’t file the paperwork to do so. Then fast forward to December and early January. And this phone call between Flynn and Kislyak pops up on the radar screen. This really significant new piece of information. And at that point, the FBI has to make a decision of what they do with it. Now they decide that they don’t want to pursue it just as sort of a narrow criminal issue related to the Logan Act. That’s not really likely that he’s going to be prosecuted under this sort of old law that’s never been used before, you know. But they do realize that there’s a serious issue they need to interview him and that it plainly falls within the predication of a counterintelligence investigation. There’s just no question of that. And what they find out is that instead of having to actually formally reopen and counterintelligence investigation, they never bothered to close the last one. And so great, they’ve saved themselves some paperwork. What DOJ is attempting to argue now is that somehow that technicality breaks the breaks a chain of causation or breaks the predications such that the interview in which Michael Flynn plainly lies, in which he plainly commits a crime, was somehow illegitimate and the substance of the lies wasn’t material. And that’s a little bit of sort of obfuscation, right? It’s it’s taking some sort of bureaucratic technicalities and making it appear as though it’s evidence of wrongdoing when, in fact, there’s really no question that the FBI it wasn’t just proper to ask Michael Flynn what exactly was going on, why was he having this conversation? But really the responsibility that the duty and obligation of the FBI to do so.
S1: And I think it matters, again, for purposes of just keeping.
S4: The story straight that the new pleading seems to suggest that the lie doesn’t really matter here, they take this bizarre position that Flins call was Kislyak was entirely appropriate in an order. Understand how weird of a claim that is. We have to kind of go back to that period of time. Right. So December 2016 and January 20th, 17. This is the period of time in which Republicans are actually slamming Barack Obama for not going far enough. They say these sanctions aren’t aren’t aren’t harsh enough on Russia. The FBI is aware of all these swirling questions about what the Russians had did, whether or not there are these contacts. And here comes the incoming national security adviser who has this bizarre conversation with the Russian ambassador. And then all of a sudden, the administration is lying about it. The press secretary is is lying about the substance of this call. The incoming vice president is lying. And that creates a real question. Is Michael Flynn freelancing? Is he making representations to the Russian ambassador that aren’t consistent with the policies of the current or the incoming administration? Is he somehow carrying out a policy on behalf of the incoming administration? What’s going on? And the purpose of an interview is just to get to the bottom of what’s going on. And so when people sort of suggest this was a perjury trap. So a perjury trap is when the government attempts to interview someone for no investigative purpose whatsoever. There’s not a real question about that that they’re trying to get to the bottom of. But instead, they just want to get somebody to lie so they can use that as the basis for the prosecution. But here there are live questions and whether or not Michael Flynn decides to say, hey, you know, yeah, I did this. The incoming president told me to do it. We have a new policy. So what if for lying to the public that’s not really any of your business? Or if instead Michael Flynn says, I didn’t talk about sanctions at all and sort of brazenly lies. That’s really, really a different matter whenever you’re trying to assess the national security risks, which is, of course, what a counterintelligence investigation is all about. So the sort of combination of factors and suggestion that poor Michael Flynn was somehow, you know, duped into to lying to federal agents. You know, it really just doesn’t hold up in a weird way.
S1: Susan, this feels like Michael Flynn is sort of a vestige of an earlier time, even in the Trump era, where if you lied and you endangered national security in so doing by putting yourself in a compromised, potentially compromised situation, everyone agreed that was bad. And now we’re in this brave new world where as long as you lie for Trump, you’re okay. And in a strange way, it makes me almost nostalgic for the good old days of 2017, where at least there was some agreement across the ideological spectrum that the Justice Department was going to bend over backwards to protect Trump’s friends for lying for him a mite too cynical.
S4: I don’t think it’s too cynical. Look, I think there are, you know, reasonable minds can believe that DOJ and the FBI leans too hard on 1001 violations in order to obtain leverage. You can you can have lots of sort of good faith criticisms about the sort of investigative and prosecutorial processes that occur every day. The bottom line, though, is that there’s no question that Michael Flynn is getting special and different treatments because he is a political ally of the president. And as soon as we we start sort of accepting and tolerating this notion that the law is different, depending on your sort of status of favor with the individuals in power. You know, that not just begins, but in some cases sort of completes a process of constitutional rot whereby our institutions are formally still standing. The rule of law still exists on paper. There’s still an FBI. There’s still a DOJ. But they aren’t being used for the legitimate purposes of evenhanded justice and instead are being used of tools of a favor and protection or punishment and persecution based on sort of political standing. You know, that is antithetical to sort of core American values and core values of democracy.
S1: Susan, last question before we let you go. You pointed out in your Lawfare piece on Thursday night that in his interview with CBS on Thursday night, Barr defended his decision. Here he is kind of chuckling that, well, you know, nobody has a sense of justice, but history is written by the winners.
S5: Nowadays, these partisan feelings are so strong that people have lost any sense of justice when history looks back on this decision. How do you think it will be written? Well, history is written. The winners are Silajdzic. Depends on who’s writing the history.
S1: And I wonder if you can just help folks who are trying to locate whether this is a sort of one or a 10 on the outrage scale, what it means when the bar is sort of, as you say, kind of rewriting history because he thinks he’s the victor.
S4: I think there’s two ways to approach it. So the idea that Michael Flynn isn’t rotting in jail for many, many years, that’s a source for me personally of of great outrage. You know, this was a serious offense, but, you know, how to judge decided to sort of ignore his more recent shenanigans and and, you know, give him probation or sort of let him off at the wrist slap. That wouldn’t be a an egregious miscarriage of justice that the part that is a 10. That’s like a blazing red alarm. Everybody should be freaking out. Is the idea of the attorney general acting as the political henchman of the president of the United States? And that is incredibly alarming. And we’ve seen Bill Barr carry out a systematic campaign to try and undermine and discredit the Mueller investigation, interventions in the stone sentencing, the John Durham Review, the review of Michael Flynn’s case. Now, the decision to drop Flynn’s charges. It’s all about attempting to not write history, but rewrite history to create the sort of alternate reality by which the president of the United States didn’t do anything wrong in this horrible deep state. And the government was just out to get him from the beginning. And so, you know, I think it was a little chilling to hear Bill Barr sort of laugh as he makes this observation of, well, history is written by the winners because he he clearly recognizes that at this moment he is the victor and he intends to rewrite history. And the problem is, whenever you have a law enforcement entity that is divorced from the truth and instead sort of in pursuit solely of of, you know, the interests of those in power, you know, you’re in an incredibly, incredibly disturbing situation because the first step might be the protection of the president’s friends. But when you look at autocracies across the world, the final step is always the prosecution and persecution of the president’s enemies. And that’s something, you know, I think any reasonable person should just be incredibly alarmed about.
S1: Susan Hennessey is executive editor of Lawfare and general counsel of the Lawfare Institute. She’s a Brookings fellow in national security law. And her new book with Ben Witness is Unmaking the Presidency. Donald Trump’s War on the World’s Most Powerful Office Susan. Incredibly, incredibly important work. Thank you so, so much for joining us today. Thanks for having me.
S6: Oh, yay. Oh, yay. Oh, yay. All persons having business before the honorable the Supreme Court of the United States are admonished to give their attention to the court is now sitting. God say the United States and this honorable court.
S1: History was made this week with the gaveling in of the first ever telephonic oral arguments session at the U.S. Supreme Court will hear argument this morning in case 1946 the United States Patent and Trademark Office versus looking dot com.
S7: Ms. Ross.
S6: Mr. Chief Justice. And may it please the court.
S1: My guest to talk about this week at the Supreme Court needs no introduction to anyone at all who’s watched the Supreme Court, at least in my lifetime. Linda Greenhouse was The New York Times Supreme Court correspondent for almost three decades, for which she won a Pulitzer Prize and myriad other prizes in honorary degrees. Linda is currently the Knight distinguished journalist in residence and the Joseph M. Goldstein lecturer in law at Yale Law School. Her column on the Supreme Court appears in the New York Times on alternating Thursdays, and her most recent book, which is absolutely lovely, is called Just a Journalist on the Press Life and the Spaces Between a Memoir. So, Linda, it’s been a while since we’ve had you on the show. Wonderful to have you. Welcome back.
S8: Oh, happy to be here, Dahlia. And of course, I read your columns all the time, even though I don’t see you.
S1: Well, it’s good to Linda and I are doing this on Zoom’s. So we get to see each other’s faces, which is nice because in all the years that we covered the court together, I saw the back of her head from the cheap seats. Linda, I want to I guess I want to start by asking you how you feel about these real time telephonic oral arguments. This is historic in some sense.
S9: Well, you know, at first I was very skeptical about all the hype over this because I thought, you know, for heaven’s sakes, the court has put up its audio on his Web site every Friday for several years now. And, you know, it’s not as if the public has never been able to hear the justices voices. But I’m going to take that back because actually it was fascinating and it is a very different kind of argument that brings out a different dynamic by the court. I’ll almost be sorry when the court, assuming any of us ever get back to normal life, when the work ethic gets back to normal life, because we’ll we’ll miss a kind of coherence in a way that the telephonic argument enables. But we can. I’m sure you I’m sure you have your thoughts on that, too.
S1: Well, I do. And I and I you know, I was going to sort of posit for you. I think let’s at least agree that any transparency is good transparency. I mean, I think anything that that gives more people the ability to hear more argument. At home in real time has to be good. But then I think there is this kind of bickering going on among court watchers, because if you are used to the way arguments used to be, it’s not just, oh, now we can listen in on the phone. It’s that the whole format has really changed. And instead of this kind of free ranging argument, we now have nine separate colloquies. It’s very different in a lot of ways. And I know there are Lyle Denniston has been saying he doesn’t like it. Garrett Epps says he loves it. Marc Stern and I, I think, are somewhere in the middle. The thing we like the idea of transparency, but maybe it’s not terrific that the chief justice has so much control over arguments. What’s your feeling about not the sort of optics of it, but the actual ways in which the arguments themselves are fundamentally different in some ways?
S9: Yeah, well, that’s an interesting observation value that the chief justice has so much control, because, of course, ordinarily people don’t realize this. She’s the office of the chief justice. Actually doesn’t give the chief justice as much control over the court as I think many people assume. You know, at the end of the day, he’s one vote out of nine. But here, as you suggest, because they’re not seeing each other. They’re all under nine separate places. In fact, Justice Ginsburg for the end of the week was asking her questions from Johns Hopkins Hospital, from which she’s now mercifully been released and sent home. He’s actually the kind of traffic cop and arguments were supposed to last an hour. One thing that’s quite fascinating is that they all go longer now. But he will allow each justice to ask a question, maybe two questions, maybe a follow up question or two, and then he’ll just interrupt. And whether he’s interrupting the lawyer or or one of his colleagues, he’ll just say, thank you, counsel, and he’ll go on to the next justice and so on. That is startling in part because those of us who’ve watched him over the years, he’s he himself is not an active questioner on the bench. And many, many minutes in arguments can go by without hearing his voice. It’s not that he’s a passive person. He’s not. That’s not what I’m suggesting. But he made a career arguing before the Supreme Court. And I think he has a healthy respect for allowing the lawyers to make their case. And so he doesn’t jump in. He doesn’t interrupt. He will ask very smart pointed questions, but he will wait his turn. And now he’s very obviously in charge and maybe related to that, Linda.
S1: I think one of the things that court insiders are saying and again, I a little bit reserved judgment on this because I’m not sure how it’s shaking out, but that you don’t get a kind of line. There’s no through line that you don’t have the opportunity to kind of pursue a question because the next justice may simply drop the question. And you can’t kind of fully explore issues of concern, because if the person who chronologically goes after you in order of seniority drops it, it’s dropped. And I wonder if you have some sense that this kind of peripatetic, you know, net now it’s Kagan’s turn and she’s trying to hearken back to something that happened 25 minutes ago where ordinarily she would jump in immediately. Whether that shapes argument at all that the lack of a sort of very, very clear through line will course in the ordinary argument.
S8: There’s also not a clear through line because justices will jump in and turn the argument in another direction. So I think here, for instance, in the Little Sisters argument on Wednesday, Justice Cavenagh, of course, being the junior justice, came at the end. And he obviously, at least it seemed obvious to me, had been taking notes. And so he framed his question by saying, well, as Justice Kagan, Justice Alito, justice this justice that said. And he kind of cycled back to a theme that had come earlier. And I think, you know, maybe in a real argument, he wouldn’t have gotten a chance to wave at all. So. So that’s I mean, I see the the problem that you’re framing, but I actually. I think there’s a problem the other way, too. So, you know, I think it’s it’s it’s actually pretty cool.
S1: It’s incredibly cool. And I guess this is where we have to acknowledge the fact that Justice Clarence Thomas has probably spoken more this week than certainly I think I could say across my two decade career that he is absolutely enthusiastically embracing this style and form in a way that we’ve never seen before. And I wonder if you think that has any impact?
S8: Well, I think it does, actually. I think that’s clear from some of the arguments this week. I mean, going into this, I was thinking to myself, gee, that’s going to be kind of awkward when the chief justice turns to Justice Thomas, who is the senior associate justice. So he would come right after the chief. Is it Justice Thomas, in your view, like black? But no, I mean, Justice Thomas behaved on the benches. I gather he actually behaves in the justices conference. That is to say, a full and well-prepared participant. And he’s got his talking points and that’s what came through. And I mean, for instance, in the Little Sisters argument, where he starts asking about standing in and and nationwide injunctions and things that are, you know, somewhat ancillary to the case fit, yet require answers and and other people had to pick up on that. So it was really a window into the the hidden Clarence Thomas that the public doesn’t see, but that his colleagues definitely do.
S1: And we can’t leave the sort of general theatrical of the week without briefly touching on Justice Ginsburg calling in from my hospital, I think. As you noted, it was a gallstone issue. She’s home. But it was one of those moments that makes us realize yet again that we’re all kind of sitting around on tenterhooks watching her health in a way that really raises questions of. Is this the best possible way to do justice in America? I wonder if you had the same 500 panicky phone calls on Tuesday night that I had.
S8: Yes, I did. I did. And, of course, I didn’t know anything. So, yeah. I was just waiting for the next shoe to drop. Like everybody else.
S1: So let’s talk about the Little Sisters case, because I think I guess I want to say my personal sort of ax to grind here is I actually think this is a very consequential case. And I always get a little freaked out that these contraception cases get only a tiny fraction of the attention that the straightup abortion cases, Kat, and that, you know, the interest in June medical as compared to this was exponentially high. And I actually think these these sort of religious objector cases, maybe because they’re complicated or maybe because there’s just so much else going on, but they just don’t seem to break through, even though in some ways I think they’re just unbelievably salient and meaningful. Do you do you have some sense of why these contraception mandate cases post? Hobby Lobby just don’t seem to garner a lot of public interest.
S10: Well, I think I mean, at first I totally agree with you. These are really important cases.
S8: And they really go to the nature of civil society, as I understand it, which is that, you know, the default mode is we all live by the same rules. We all undertake the same obligations. And if there’s going to be an exception to that, you know, there’s going to be a conscientious objection to the drafter or whatever. It’s very carefully defined and very carefully administrated. Administrated. And that’s an important thing. So why don’t these get the heft that the abortion cases get? Well, I think is because, you know, you’ve got an abortion case. And are women going to have the right to terminate a pregnancy or not? Or what are the obstacles to women being able to affect their constitutional right to control their reproductive lives? That’s you know, you can kind of understand that, right? Undersurface these. Go to something a little bit more elusive in the religious right has been absolutely brilliant in framing a narrative that I believe is not an honest narrative that, you know, oh, my God, the nasty Obama administration is trying to force the Little Sisters, the Little Sisters of the poor, to use birth control. Now, of course, that’s totally meretricious. The Little Sisters of the Poor are as an order of nuns, they run nursing homes. If you go on their website, they’re an equal opportunity employer. You don’t have to be a member of their order or a member of their faith to work there and or to be a patient in their nursing home. So what this case has to do with is do they as employers have the ability to opt out of providing to their, let’s assume, secular workforce the same rights that federal law requires employers to provide for everybody else? And that’s what it comes down to. But they have so captured the narrative. There are many, many plaintiffs originally in this case with all kinds of anodyne names, but very cleverly the people representing the little sisters that they could fund for religious liberty, which is a brilliant religious right litigating organization with very, very smart people working there, have somehow managed to make this a case of the Little Sisters. It’s not a case about the Little Sisters. They’re interveners in this case. And actually, the plaintiff in this case is the state of Pennsylvania, joined by the state of New Jersey, saying we object to this opt out because there’s going to be more pregnancies. There’s going to be more of, you know, Medicaid services required for people who have to carry their pregnancies determined, have babies. And we’re going to have to pay more. So we have standing where the states we don’t like this. It’s really not about the nuns. And nobody’s forcing the nuns to use birth control.
S1: Right. And I think that’s important. I wrote that up in my piece because I called almost everyone I knew and said, is there any set of facts under which the little sisters who are on the church plan right there never go, even if if they lost this case, whatever that means. As you said, they’re intervenors. They’re never going to have to themselves do the thing that they’re they’re saying they don’t want to do, right?
S8: Well, that’s right. And we should be specific about the thing they’re saying they don’t want to do. Who they don’t want to do is anything because the way the current. Accommodation works is if you’re a religious objector and you feel that by doing anything to enable your employees to receive free contraception, you would be complicit in the sin of contraception. OK, the government the Obama administration was willing to accept that as a as a position.
S9: And so they said, OK, you don’t have to do anything. You can do absolutely nothing. And it will fall to the insurance, your insurer or ultimately the government to pay for this service as long as the employees can receive the contraception coverage as part of their ordinary health plan. You don’t have to pay for it. You don’t have to even officially opt out. You don’t have to sign a form. You don’t have to ask us to do it. We’ll do it. But it has to be seamless. We don’t have to send them out into the marketplace to find their own insurance because the law provides that they are entitled to this insurance. So it’s it’s a refusal to accommodate at all. It’s not we don’t like your accommodation. We feel we deserve another accommodation. No, we deserve a total exemption. And that’s what’s really on the table.
S1: So so let’s back this up for listeners who maybe haven’t followed every twist and turn since Hobby Lobby and and just sort of lay out how we got here. As you said, when the Affordable Care Act was passed, there was a guarantee of comprehensive contraceptive care that would be covered by your employer. There were a bunch of exemptions for churches and religious universities and hospitals. Hobby Lobby at the time said we want that, too. We want an exemption, too. In the Hobby Lobby opinion written by Sam Alito, the kind of I think the gravamen of the opinion was, look, if you can give this accommodation to churches, you can certainly give it to these for profit small corporations like Hobby Lobby and the the Green Families Cabinet Company. And that’s where we were. And then, as you say, Zubik comes along in 2016. And this was group saying, okay, but we don’t want the accommodation that we were given in Hobby Lobby. We don’t want to self certify. We want to just not be in any way in this kind of causal chain wherein at the end of the day, our employees get contraceptive care covered. Is that a fair representation of what where we are?
S8: Yes. And let me say something about the arguments. So Justice Alito, who, as you say, wrote Hobby Lobby, has a line of questioning to the Pennsylvania lawyer. The Third Circuit, by the way, had had invalidated the Trump rule that that provides a religious exemption. And also we haven’t even gotten into this provides moral, moral, moral objection. Justice Alito says to the lawyer, what’s wrong with the Third Circuit? Didn’t they read? Hobby Lobby. Meaning this is covered by Hobby Lobby. Now, it’s not I hate to say that Justice Alito asked dishonest question. But he well knew because he wrote the opinion in Hobby Lobby that what Hobby Lobby was seeking was an accommodation, not it, not a total Opt-Out. So when he said to the Pennsylvania lawyer, didn’t the Third Circuit read my opinion in the Hobby Lobby? Yes, they did. And they found it was being requested here is not covered by Hobby Lobby is very different. It’s much more extreme, actually.
S1: So we do have to get into this sort of administrative procedure. Part of the case, which is, as you said, Donald Trump announces we’re going to be much more expansive. We’re going to give updates to everyone who has a religious objection. And they put together a rule that, as you say, is far broader than anything we’d seen before, where they say now any employer who has a religious objection to contraception can’t opt out. And also this, as you say, mysterious language about also if you have a quote unquote, moral objection. Now you can be exempted. And part of this case, and I think only Elena Kagan was really deeply excited about it, is this issue of did they go through the fair sort of, you know, notice and all the processes for a rulemaking change? But it is kind of important because I think in the grand scheme of things, when you look at the law of Trump, so often they lose because when they go ahead and make rules, they do it kind of badly and fitfully and without jumping through the correct hoops. So that is a part of this case. And that’s certainly the part of this case on which the lower courts were emphatic that they just didn’t do this correctly. They tried to fix it after.
S10: Right. Yes. Justice Kagan raised the Administrative Procedure Act. And Justice Breyer did also. And they’re often in league with each other, trying to find some off ramp that the court could avail itself of. And not kind of plunge into the deep hole that the court will find itself in if they actually would uphold a moral objection. I mean, that really is the end of civil society, as I understand it. So it’s possible that the procedural stuff could attract five votes. But, you know, I mean, there’s such an appetite among the conservatives to get to the heart of this thing because they fail to do that. In the case that you mentioned in 2016 in Zubik, because Justice Scalia had died and the court was obviously split four to four, although the V interrupt myself. Early in the argument, the chief justice said, you know, I never understood the issue in Zupanc or if you had a situation where the certification was not necessary.
S11: In other words, the government government finds out that the employees do not have contraceptive coverage through some other means. And you do not have the hijacking problem that you referred to because the insurance cover would not provide the services through the Little Sisters plan, but could provide them directly to the employees. Then why isn’t that sort of accommodations sufficient? I, I didn’t understand the problem at the time of Zubik and I’m not sure I understand now, which is pretty interesting.
S8: And I think what he was trying to say was I don’t really understand the nature of the objection made by these. Religious employers and can you please explain to me how that ties into what we did in Hobby Lobby? So it’s possible that the chief on the merits thinks that what’s being requested here is actually. A step too far. That’s what we’re that’s one fascinating thing that we’re going to find out here.
S1: I had the exact same impression, Linda, that here’s Chief Justice Roberts right out the shoot. Noel Francisco opening his presentation to the court. He’s the solicitor general for the Trump administration, arguing on in favor of these exemptions. And Chief Justice John Roberts, under this referrer, Religious Freedom Restoration Act analysis immediately says, wait, wait, wait. I don’t understand. It seems that the exemptions go way further than what the Little Sisters needed. Let’s have a listen.
S12: I wonder why it doesn’t sweep too broadly. It is designed to address the concerns about self certification and what the Little Sisters call the hijacking of their plan. But being a referee exemption reaches far beyond that. In other words, not everybody who seeks the protection from coverage has those same objections. So I wonder if your reliance on referrals is too broad.
S1: And my thinking is as it always is. You never know with the chief justice here, you hesitate to read too much into his questioning. But it does look a little bit as though this is that John Roberts swing justice that we’re starting to get used to in the new era.
S10: No, I agree with you, Dahlia. It was it was very striking. And I also agree with you. He’s one of the harder justices to read from the questions he asks from the bench, because sometimes he likes to play devil’s advocate, devil’s advocate. Sometimes he just likes to do something that is really a purpose of oral argument, which is to press the lawyer to the extreme of the lawyer’s position, because the court always has to have in mind. OK, if we buy with this lawyer is selling. What’s the next case? So, you know, it could have something other than signaling his own discomfort with the argument. But on the other hand, he sounded rather uncomfortable.
S1: And that sort of leads me to Justice Ginsburg, who over and over, I think three separate times said some version of dude, the ACA says this is covered and that women aren’t supposed to be scrounging around, you know, in the markets, trying to find their own coverage. And Noel Francisco, the solicitor general, kind of blithely said, oh, well, you know, somewhere between seventy five thousand one hundred twenty five thousand women just won’t be able to get contraception. But it was interesting, I think both Justice Ginsburg and later Sonia Sotomayor were really, I think, somewhat miffed at how cavalierly he dismissed the interest of, as you said, these third party non-religious adherents who are going to bear the burden of the religious adherence faith. Right.
S10: Well, if we go back to Hobby Lobby, Justice Alito’s majority opinion had a statement in Hobby Lobby that said no woman will be deprived of her ability to get no cost contraception because of this opinion. He said that because he was dealing with an accommodation in under the Obama administration accommodation that was at issue in Hobby Lobby, if the employer didn’t want to pay, the insurer or the government would pay. Now, that has proven to be an empty promise because, in fact, women who work for these companies or women who go to religious colleges that choose not to include contraception in their student health plans or are not getting the coverage, they are not getting the coverage. So Justice Ginsburg had written the dissenting opinion in Hobby Lobby of raising this issue. And I heard her her intervention in the argument on Wednesday was interesting. It was I have to say, it wasn’t typical or B.G. because she really didn’t have the kind of very much on point question for the advocates. Instead, she kind of gave a little speech saying your position is throwing women to the winds. And, you know, basically, I’ve been telling you this.
S13: And it’s still happening and said you are shifting the employer’s religious beliefs. Cost of that on TV simply do not share its religious beliefs. I did not understand. To authorize to other people that is evident here, say the women and any. Nothing. They acquired to do just what I didn’t want.
S10: She didn’t actually frame a question so that the chief justice had to say, I think it was his solicitor general. Francisco General.
S14: Francisco, could you respond?
S10: Would you like to respond to that? Because it actually wasn’t a question. But obviously, we know where she’s coming from on this. And she was very passionate and she did not get a satisfactory answer, as you say.
S1: The last little clip I wanted to play for you, Linda, because I actually thought it was very powerful, was Sonia Sotomayor trying to press on this notion in in a colloquy with Paul Clement, again, representing the Little Sisters, that. If an employer if we had a cosied 19 vaccine and an employer just had religious objections, would they be able to get an exemption similar to the one that you are fighting for, for the Little Sisters?
S14: Mr. Coleman, assume that the government tomorrow passes a law that says every insurance company must reimburse every policyholder they have or covered by teen vaccine. They say nothing about whether it’s in your policy or not if someone has a religious objection. They say they can be exempted from it. But you insurance carrier must pay for anyone who submits who has a policy with you. For anyone who submits for a covered 19 vaccine can be employer object. To pay to that policy, Justice Sotomayor.
S11: I think the answer is no. And if I want to explain how I work for.
S14: It’s exactly the same rules that apply here to contraceptives.
S1: I wonder what you made of Paul Clement’s answer, Linda, that maybe there just isn’t a greater government interest in getting the vaccine out.
S15: Paul Clement seemed to be caught a little bit flatfooted by a hypothetical that should not actually have surprised him. I mean, it was a really good hypothetical, but one that he might well have anticipated and he was scrambling a little bit. But obviously, the answer would be, even if you assume that the Religious Freedom Restoration Act puts a heavy burden on the government to justify anything that would seem to go against somebody’s religious preference. There’s a compelling state interest in knocking out this virus. And so, of course, the government would prevail. I mean, there’s not the slightest doubt about it. He eventually, you know, I think came to that, but it took him too long. And that showed how deeply in he is to his his client’s commitment to, you know, hey, don’t tell us what we have to do. And I want to mention one other thing about the argument that that really startled me with a kid. It came from Justice Gorsuch, not surprisingly, when he says to on the Pennsylvania lawyer, well, if there’s so much discretion given to the health that the agency was within HHS, that was. Charged by the Affordable Care Act itself with determining what were the essential services that employers had to provide if there’s so much discretion given to them. And they came up with contraception. Maybe that’s an undue delegation. Now, for our listeners who for whom that’s not a red flag kind of code word. And the notion that Congress gives too much authority to the administrative agencies, let’s say the administrative state goes back to the New Deal. And the last time anything has been struck down as an undue delegation was 1935. Actually, last year there was a case presented to the court that would have allowed them to revive the undue delegation analysis. And it came within a hair’s breadth of prevailing. Only Justice Cavalo was not participating in that particular case. And Justice Alito wrote a brief concurring opinion saying, I would go there, I would go to undue delegation. But this isn’t the right case. And we don’t have a fifth vote because Justice Cavenagh was a was on the court at the time of the argument. So for Justice Gauzes, she raised that within the framework of this argument was truly surprising. I don’t think it was insignificant.
S1: Yeah, I was gonna I was going to ask you about this sort of interplay between, you know, the claims that Noel Francisco is making about, you know, agencies have all this power and authority to do what they want. And if an agency can, you know, create exemptions, they can, you know, also create more exemptions and they can do whatever they want. And it did seem to fly in the face of this attack on the administrative agencies that we’re really seeing, not just with this non delegation analysis, but just generally this very, very increasingly loud drumbeat that agencies should be more or less eviscerated. And I was also struck by that as it was this sort of through note at the bottom of the argument that unless you were listening really carefully, you maybe didn’t catch.
S9: That’s right. And of course, the conservatives are a little bit stuck.
S8: They’ve got to thread a needle here because they want to say that the agency here had a lot of authority to create all these exemptions, but yet they have the administrative state in their sights and the undue delegation doctrine is a potent weapon to take down the administrative state. So somewhere in between, you know, we have a lot of delegation here and we love it. But actually, we don’t like a lot of delegation because they don’t like administrative agencies is going to be absolutely fascinating what they do with that and where that goes.
S1: So before I let you go, and I guess the last thing I really want to flag is and I think you raised this, that it certainly looked as though Justice Kagan, Justice Breyer, maybe the chief justice a little bit was maybe working their way toward some consensus that looked a little zubrycki. Right. It looked a little bit like what we saw in 2016, where maybe there is a way to not jump squarely into this issue of, you know, this ongoing clash between religious liberty and freedom on the one hand and just, you know, basic civil law on the other, and that maybe the court just kicks this away and says under this administrative procedure that, you know, this just wasn’t this rule change wasn’t appropriate. And they don’t fuss with the line post Hobby Lobby. They don’t fuss with deep changes to how we think about the Religious Freedom Restoration Act. Is that. I guess I’m saying in the context of a huge term and we have so many other big, you know, Title seven and and Jude Medical and these financial records cases. I mean, this is a monster term. Do you think that the court is going to do a little bit some version of what they did in Zubik, which is just wait on the big, big issues, knowing that it’s coming back in a year and two years and just do something sort of fitly in the middle to make this go away for now?
S8: Well, I’d like to be able to think that. I mean, I guess maybe one thing that is possible, the moral opt out, the moral exemption is sitting there. I mean, as fully half of the case, although it didn’t get, you know, anywhere near half the argument, I mean, they’ve got to get rid of that. There’s no basis for that. There’s no findings. There’s no I mean, good grief. If, you know, I don’t like birth control and I’m an employer of thousands of people and, you know, too bad for them. I’m sorry. So, I mean, that’s not covered by the Religious Freedom Restoration Act. It’s not covered by anything. It’s it’s just absolute pure defiance of the will of Congress in having passed this law that’s been upheld twice by the Supreme Court. So if there are five votes to uphold that, we’re in even worse trouble than you.
S9: And I think we are. You know, whether they’ll find the Administrative Procedure Act opt out. Do we count to five on that? Is possible. Is possible. But, boy, there be a lot of blood on the floor. If that’s if that’s the way it turns out.
S8: Of course, one thing we haven’t mentioned. I mean, here they’re hearing arguments into mid-May. Usually they hear arguments toward the not quite end of April. And usually they finish their term in the closing days of June. I don’t see how because of the big cases coming up next week that Trump financial records cases and the other big relation case. Daddy, do you think they’re going to get out by Labor Day?
S1: I I’m trying to figure out how these all particularly because they all of these cases are thorny and hard. And we’ve got a bunch that are thorny and hard that we’re still waiting on. So I I think the term I don’t know. I think the term goes and we haven’t talked about the fact that they kicked the Affordable Care Act case to next to next term, which means that do they just go straight from ending abortion into ending the Affordable Care Act? I think it’s you’re right. There’s a huge logjam and I don’t know how. It’s certainly not done. The end of June, and I guess nobody’s traveling anyway, so maybe they’re right. Sit at home and flush their toilets and, you know, get if they get through in mid-August. It’s a good question. I mean, you and I have nothing else to do, right? Exactly. What else? You know, I’m not going any place will just sit in my basement and read opinions through August. I think blood on the floor is a very fittingly Shakespearean act. Five scene place to leave us today, Linda. Linda was the New York Times Supreme Court correspondent for almost three decades for which she won a Pulitzer Prize and myriad other awards. Right now, she is the Knight distinguished journalist in residence, and Joseph M. Goldstein, lecturer in law at Yale Law School. And you can always find her column on alternate Thursdays about the Supreme Court in The New York Times Linda. It is good to see your face. It is great to hear your voice. And I know that it is just not easy doing this from home. So thank you very, very much for being with us. Oh, thanks for the invitation. Dalia, I always enjoyed talking to you. All right. We are joined now for our Slate. Plus, super fans and supporters by the Divine Mark Joseph Stern, who covers the courts and the law. And this week, state Supreme Court mayhem for Slate. Mark, welcome back. Happy to be back. Thank you. And Slate plus, listeners, you are gonna get a treat because Mark has been prolific this week. But Mark, I think we started the week prolifically together, writing about oral arguments on the phone from the U.S. Supreme Court. Listeners will have just heard Linda Greenhouse say, you know, I thought I was going to hate it, but it’s kind of cool. And I know on Monday, you and I agreed that it was medium cool. But I wonder, as the week went on whether your views about live telephonic Supreme Court coverage on C-SPAN for you and me have changed.
S16: Yeah. So, of course, there was flush gate, right? There was the toilet flush. And we’ll just set that aside for now and talk about everything else first. I think that for the most part. It went really well. I was surprised, given how tech phobic the justices have been in the past, that only a few of them had glitches and they were pretty minor. You know, I think we can all relate to Justice Sotomayor forgetting to turn off mute twice in a row. And, you know, the first argument was quite choppy. Everyone was trying to get into the flow and sort of laughing at the weirdness of it. But by the time we got two Little Sisters argument, it seemed like most of the justices had really figured out how to adapt and figured out how to make it a little less choppy and a little more of a coherent discussion between the justices instead of just one justice at a time, grilling the attorney about whatever idiosyncratic issues they have with the case. And I thought this is no surprise. Justice Elena Kagan probably adopted the best. She really by Wednesday figured out how to bring her rapid fire interrogations to the phone line in, you know, three or four minutes. And I think got some good information out of the advocates. So on the whole, I would give it what I think a B plus. But I got to give all of the justices a gold star for trying. And I think, like everyone else, I hope that live streaming continues when and if the justices are able to return to the bench physically one day.
S1: It’s interesting. I had you and I wrote when we talked about this on Monday that it does somewhat change things when you’re going in order of seniority. And the chief justice and the newly voluble Clarence Thomas are kind of shaping the first, you know, 10 minutes of argument. Right. But I had the same thought that you did, which is in a strange way. One of the lessons I took away from the week is that you can kind of tell which justices are listening in a way that you can’t always tell in ordinary oral arguments, because some of them just have potted questions that they dutifully read when they get to their turn. But there’s an awful lot of kind of you have to be listening because you can’t jump in anymore. And so, again, I think that there’s a tremendous amount of hey, wait, counsel, you didn’t answer the chief justice’s question. Hey, wait, Counsel, I want you to go back to Justice Thomas. His question, which is actually kind of refreshing in a way that they’re listening really hard to the colloquy that comes before they have to wait their turn. And so there is a little bit more in some sense of a feeling that they are having to work together even though they’re working apart, if that makes any sense.
S16: Absolutely. They’re all on the same team in the sense that they need to back each other up and get counsel to return to the big questions. And if they want another justice to say, hey, you’ve got to go back to that question, then they have to do the same. You know, they all have to play nice rather than kind of scratching and clawing at each other through counsel like they normally do on the bench. And I have to give a shout out actually to Trump’s two appointees, Justices Gorsuch and Kavanaugh. I think they’ve been really good about bringing the conversation back to an unanswered question that a more senior justice asked, and they’re the last two to speak. So I think that’s a pretty valuable resource to have where you go down the line to Justice Gorsuch. And he says, now, wait a minute, you didn’t really answer this question that Justice Thomas or Justice Kagan asked before. So could you please go back to that? And I think that’s helpful for everybody. It’s helpful for the justices, for counsel and for us listening at home to kind of understand where this argument is heading. So that’s a cool feature that we never get on the bench because, of course, they don’t question order of seniority on the bench. But, you know, again, as we said on Monday and as I still think it’s true, this is a very different flow from what we normally get in the before times. This was still more of a conversation between the justices. And now it’s like nine related but independent colloquies.
S1: It’s interesting, I did a Zoome call with a bunch of attorneys in L.A. I don’t know what day it is I’m going to say on blank day. It was Wednesday, one of the days I was wearing different clothes. But I’m one of the things they said, having listened in and these are not folks who necessarily listen in usually is how much they were struck by oral argument being a conversation between the justices, really where where counsel is just kind of a fikes to bounce off of. And I said, look, that’s been the case forever. It’s always a conversation between the justices counsels there to kind of supply some answers and do a little connective glue. But for the most part, counsel’s not there to do unless they affirmatively lose the case. It’s not their show. And I think one of the things that I’ve been hearing is some. Cries from people who are listening in for the first time at how much this is a very choreographed conversation between justices trying to get to five as opposed to, I think, what they thought was a more Socratic back and forth with kind of equal participants. Who are the oral advocates.
S16: Oh, that’s fascinating. So for the uninitiated, this seems like oh, wow, what a great conversation between the justices. But for us, it’s like this is so much choppier than usual. Normally, they’re they’re much smoother about kind of sniping at each other. There’s a great moment. I remember from this case where Justice Alito asked a really stupid question. This was the street case about the Fourth Amendment search, about arrest warrants and how, oh, the cops will never issue arrest warrants for this and that. And then Justice Sotomayor jumped in and said, I’m surprised Justice Alito doesn’t know that arrest warrants issue automatically for this and that. And I remember the look on the chief justice’s face like, oh, God, Sonia, you did it again. You know, they really do try to go through counsel for the most part, but they’re definitely talking to each other. And when they can’t see each other, when they can’t really communicate through body language, too, I think that changes the dynamic of the conversation.
S1: I have to ask you briefly, Mark, just because it’s something that has been remarked upon in the ether, but maybe not written about, it matters a little bit that Monday mornings first argument, the booking dot com trademark case is not a blockbuster unless you’re sort of in in that bar. But interesting that it was argued by two women in a term that has not seen it really a lot of women, oral advocates.
S16: Yeah, the gender disparity this term has been atrocious in terms of women arguing, you know, great to see two women arguing different sides of a case. But I think for it for the remainder of the arguments, it’s going to be very male dominated. And like you said, that’s been true of the entire term. And this is such an entrenched problem in the Supreme Court bar. And I will say there’s a there’s a really kind of fiery debates in our circles right now about whether it’s healthy to have this Supreme Court bar of, like elites, attorneys who are repeat players before the court who sort of snatch up these cases when they get to the Supreme Court and, you know, argue three, four or five cases a term, you know, as someone who goes and watches these arguments regularly. I think that’s a pretty good system in theory. It means that better attorneys who are used to that kind of style of argument can sort of get the justices juices flowing. It tends to be more productive arguments when it’s an experienced Supreme Court litigator. On the other hand, that club is very male dominated. It’s mostly straight white men. That is a huge problem. It is unforgivable and it is inexcusable. And there’s obviously a serious pipeline problem here. And so while I was glad to see two women arguing, I hope that the many straight white men in this club will sort of look around and recognize the lack of diversity and make some efforts to bring more non-traditional people into their circle. Because while it’s good to have experts arguing for the Supreme Court, they should not all look and sound the exact same and come from the exact same backgrounds. I think that is extremely unhealthy and we’ve got to fix it.
S1: And I guess maybe we should just also note that our friends at the strict scrutiny podcast, which I imagine everyone who’s listening to this is also listening to, absolutely have really, really pointed out that not only are they straight what white men, but they’re straight white men who often clerked for the same straight white white male justices. In other words, it’s an entirely self-fulfilling bubble that gets weirdly smaller. So let’s talk about Flesche gate.
S17: Mark, the FCC has said is that when the subject matter of the range is the suspect and the call is transformed.
S1: I did not want to talk about it for some of the reasons you identified. And then you wrote this brilliant piece on Thursday. So so let’s you know, beyond just the like, whodunit, thoughts about the flesh heard round the world.
S16: Well, I really do think this flush was traumatic for at least Chief Justice Roberts and probably many of the justices, because as I wrote in in my piece, you know, the Supreme Court’s powers kind of rest on magic. We have to believe that they are wizards who can transmogrify their words into the law of the land. And the court works really hard to preserve that impression through all of this formality and these rituals and ceremonial rites. You know, you walk into the court across this giant plaza with these classical sculptures. You go into the courtroom, these heavy, heavy red curtains descend from the high ceiling and they come out on the bench. And it’s like it feels like some kind of secular sacrament went. When this is all happening, you feel like, wow, these people really are wizards and. Flush in the background of arguments. Kind of takes all that away. I think it really does diminish the majesty and all of the courts, and I think the chief justice knows that. And I think that a flush during arguments is kind of his worst nightmare because it’s exactly what he feared when he started to introduce more transparency measures. You know, he didn’t want to be the chief justice who broke the court. He’s still against cameras in the courtroom. He had to cave and do live stream audio because of the pandemic. And we were all watching closely because I think, like I said before, we’re hoping that live streaming continues when they return to the court. I’m not so sure that’s going to happen now because the chief justice wants control over how the public sees the courts and what parts of the court the public sees and hears. He doesn’t want toilet flushing. He doesn’t want bodily functions happening during arguments. It drains away all of the majesty and it makes them look like nine lawyers in robes who just get to make law for the rest of us. So I think it was more meaningful than a lot of people give it credit for. I think it was probably really distressing for the court and it’s going to give the chief another weapon in his arsenal. When we go back to normal times, he’s going to say, yeah, we tried live streaming, but it ended up being kind of embarrassing. So we’re going to go back to holding everything in a secret chamber and keeping the public’s eyes and ears out.
S1: So here’s where I confess that my brain just did that. Homer Simpson, who lives dreaming. OK, Mark, let’s talk about the Affordable Care Act case. And I want to talk about it because we can talk till we’re blue in the face about the cases coming next week. Big, big, big week. But I also want to talk about the cases that didn’t get emergency ducks in it for me. And one of them, unsurprisingly, is this massive challenge to the Affordable Care Act. You and I have written about how if people were really thinking about the possibility of the court eviscerating the ACA in an election year, they would want to pay attention. But mysteriously, it’s not going to be heard this spring. Can you talk a little bit about there was internecine warfare at the Justice Department this week about what they were going to do. And they went and filed a I guess in this case saying we want to end the whole thing.
S16: Yeah, that’s that’s right. I mean, that’s the Justice Department’s current position, that the individual mandate is unconstitutional. And that makes the entire law. All of it, Medicaid expansion, the exchanges, tax credits, everything illegal. The entire law has to be abolished. And that would take about 20 million Americans off health insurance, Orvie, during a pandemic. Obviously not a great thing to do during a pandemic. Right, stripping 20 million people of their health insurance. But that’s what the Justice Department is out there pushing for in the Supreme Court right now. Like you said, they’re not hearing arguments this spring. They sort of mysteriously pushed it off to the fall. But apparently from from solid reporting, we’re hearing that Attorney General William Barr is having some second thoughts about this strategy and actually trying to push quietly to kind of pull back on this challenge and to say, well, maybe we want to strike down the individual mandate and maybe we want to strike down some of the other good stuff like protections for preexisting conditions and whatever. But we don’t want to strike down the entire law like Medicaid, exchange expansion and all of that stuff. You know, Barr is thinking maybe in an election year during a pandemic, that’s not the wisest political move. And yet it looks like he has not won out. It looks like the Trump administration, Donald Trump, they’re still pushing forward for total eradication of this law, which just seems so politically foolish to me. But it’s become a pathology on the right. This obsession with taking down Obamacare. And so even when they know it’s politically stupid to call for the entire law to come toppling down, they just can’t help themselves. They have to say Obamacare is evil, it is the devil, and it must be slain entirely.
S1: So let’s play you out, Mark, with a little audio of Donald Trump gleefully announcing this week that he is, in fact, gunning to end the Affordable Care Act in a pandemic, an election year.
S5: Obamacare is a disaster, but we’ve run it very well. But what we are doing is we want to terminate health care for under Obamacare because it’s bad and we’re replacing it with a great health care at far less money.
S1: And this is me thinking, Mark Joseph Stern, who covers the Supreme Court, state supreme courts, the crazy states and all the good things. That’s keeping me sane for Slate. Mark, take good care. Thank you for being here.
S16: Same to you. Always a pleasure. Thanks.
S3: Talk to you soon. And that is a wrap for this episode of Anarchist’s. Thank you so very much as ever for listening and thank you so much for your continued letters and questions. You can always keep in touch at Atticus and Slate dot com. You can also find us at Facebook dot com slash amicus podcast. Today’s show was produced by Sara Birmingham. Gabriel Roth is editorial director of Slate podcasts. And June Thomas is senior managing producer of Slate podcasts. We’ll be back with another episode of Amicus. In two short weeks. Hang on.