Air Date 6/14/2024
JAY TOMLINSON - HOST, BEST OF THE LEFT: [00:00:00] Welcome to this episode of the award-winning Best of the Left podcast.
We are in the middle of Supreme Court opinion season, which is not going well for any non-extreme conservatives in the country. At the same time, as scandal, corruption, and justices Thomas and Alito's refusal to recuse in the face of clear bias, is all reaching a modern peak.
Sources providing our Top Takes today include Amicus with Dahlia Lithwick, The Majority Report, 99% Invisible, and Contempt of Court with Elie Mystal.
Then in the Deeper Dive half of the show, we'll go deeper in four sections: Section A: Do facts matter? Section B: Policing medical care. C: The Republican court we've all waited for. And D: SCOTUS is a flawed system.
Opinionpalooza A Bad June Rising At SCOTUS Part 1 - Amicus With Dhalia Lithwick - Air Date 5-25-24
DAHLIA LITHWICK - HOST, AMICUS: We could talk about this all year, but I want to talk about some of the stuff that you've been writing about what makes this term different, Steve. And one of them, as you point out, is that we have a [00:01:00] whole--I think crap ton is the word I want to use--of merits decisions that are coming, and they're all going to be, according to your amazing data driven classification system, going to be really important. And of those, I think a bunch are nationally significant. This is not like the terms that I am used to where there's four blockbusters in the last two weeks of June. This is an entirely different animal. And you've been trying to parse out what that means and how that is shaping May and June. And I'd love for you to give us a more fulsome explanation of how this is different.
PROFESSOR STEVE VLADECK: Sure. So it's different in two ways. They're going to sound like they're inconsistent, although I think they're coming from the same place.
The first way, and this is something you guys already know, I think a lot of folks who follow the court at all know, the court's actually doing less, right? We're on track for maybe 58 or 59 merits decisions by the time we go home for the summer and go [00:02:00] start crying again, which is going to be the fifth term in a row that the court doesn't get to 60.
That hadn't been below 60 before that since 1864. And so there's a whole universe of cases that has completely disappeared from the Supreme Court's docket. I know you guys, have talked to Orrin Kerr about his Fourth Amendment obsession and why the Supreme Court won't take Fourth Amendment cases anymore.
But Dahlia, they're taking less and yet a remarkably high percentage of what's left are major cases, right? You've got these major administrative law cases. You've got these abortion cases. You've got these social media cases, which have gotten totally, I think memory hold, right? Because so much other stuff is going on.
You've got two, not just one major gun cases. And oh, by the way, there are those two small January six cases, including one about whether former president Trump can be criminally prosecuted. So that's, depending on how you count, 18, 19, 20 major decisions that the court has to get through between now and the end of June. And they're doing three or four a week right [00:03:00] now. So the math explains itself. We're going to get just slammed the last couple of weeks of June with a ton of major decisions that are going to be controversial. They're going to be head scratching.
And I think, Dalia, that's going to pose an especially difficult challenge to folks like you and Mark and the Supreme Court press corps for who has to try to explain all of this to everybody in a way that's going to keep their attention. This is basically going to be the Friday night news dump of major Supreme Court decisions to end all Friday night news dumps.
And I think that's a real problem.
MARK JOSEPH STERN - WRITER, SLATE: I'm curious why you think this is happening. The slowdown of grants combined with the increase in really major grants. I am puzzled, because I feel like different justices have different philosophies about granting and there's not like one unified theory for why this is happening.
PROFESSOR STEVE VLADECK: Yeah. And indeed justice Kavanaugh at the Fifth Circuit conference two weeks ago actually went out of his way to say, I think we should be taking more cases. And in his defense, his voting pattern backs that up. He is the most common dissenter [00:04:00] from denials of certiorari among all nine of the justices, which given where he is on the spectrum is actually surprising. You wouldn't think a justice who's in the relative middle of the court would actually be the most common dissenter from denials of cert.
I think two things are going on and I actually think they are related. The first is I think the court is getting a lot of pressure from below.
DAHLIA LITHWICK - HOST, AMICUS: It's the Fifth Circuit.
PROFESSOR STEVE VLADECK: From my dear friends on the Fifth Circuit who at least as of now have not administratively stayed my departure from Texas.
MARK JOSEPH STERN - WRITER, SLATE: There's time yet.
PROFESSOR STEVE VLADECK: There is time. Some of this is because the Fifth Circuit has just gone completely off the deep end on some of these cases where the court has to take them and reverse. That's the CFPB case. That's almost certainly going to be the Mifepristone case, probably Rahimi, probably NetChoice, right? The social media content moderation case.
So part of that, Mark, is that the court has the docket where its hand is being forced. And then part of that is. the court taking cases it wants to take to mess with the administrative state.
And what's [00:05:00] remarkable to me about what Kavanaugh said at the Fifth Circuit, and what Thomas said at the Eleventh Circuit, and what Sotomayor said a little bit earlier this year, is they're all talking about working harder than they ever have, and that they're all crazy busy, and that it's not like the shrinkage of the docket has freed up time.
We know that the high profile cases take more of their time. We know that it takes more of their energy when they're going back and forth about these concurrences and dissents. And my best suggestion is that they have so many of these high profile cases that they just don't have room for the lower profiles.
I mean, guys it's, we're going to get to Memorial Day with eight grants for next year. Eight! That's insane.
DAHLIA LITHWICK - HOST, AMICUS: By Memorial Day, how many cert grants do we usually have? Just for point of comparison,
PROFESSOR STEVE VLADECK: More than 20.
DAHLIA LITHWICK - HOST, AMICUS: Okay.
PROFESSOR STEVE VLADECK: Just the norm is that by the time the court leaves for its summer recess, it has filled its October, November and December argument calendars, because it's not going to grant any more cases till [00:06:00] September.
And so even a light October, November and December calendar is usually 25 arguments before the end of the year. And that means that would require the court between now and when it rises for its summer recess to triple the number of cert grants. It's possible, but what the hell.
Whatever you think of what the court's actually doing in these cases, this rather seismic shift in the nature of its docket is a big deal. And it's something we ought to be talking about. And I don't know if there were a Congress like a Senate Judiciary Committee that actually cared about the Supreme Court, they might even think to hold hearings about these shifts in the docket.
MARK JOSEPH STERN - WRITER, SLATE: Imagine that. Can I just add one gloss that I think is implicit in your critique, Steve, which is that when they are slammed with all these super high profile cases under a time limit, the work product suffers, right? And I think the best example of that so far is Trump v. Anderson, the Colorado ballot removal case, right? That came down in a month because the court actually can act quickly when it wants to, [00:07:00] and they wanted to get it out before the Colorado primary. But after we all read it a couple of times, I think it became clear there was this misalignment between the majority and the dissent. They didn't quite line up. The dissent was criticizing things that weren't in the majority opinion. The majority opinion was saying things that didn't clearly reflect in the dissent's critique. And then as we at Slate discovered, the dissent, which was labeled as a concurrence was in fact, originally a dissent before being changed at the last minute, it was all very hinky. And I feel like that's going to be the issue times 15 in the next month or so, as they're trying to push out all these major cases, they're going to get sloppy. They're not going to be able to move these drafts back and forth as much as they'd like, and really nail down a final product. And the result will be mess in the law, right?
PROFESSOR STEVE VLADECK: Mess in the law, but also, Mark, I think two other things that tend to be true when the court rushes is they tend to be more honest. There's less time to sanitize what they're doing, and they tend to be madder [00:08:00] at each other.
This is why when folks talk about yes, the court can move quickly, the historical examples of decisions where the court has moved really quickly, almost no one thinks any of the actual opinions in those cases are any good. Right? Whether it's the Nazi saboteurs or the Watergate tapes case or Bush versus Gore, like the result, don't like the result, none of those are held up as models of the Supreme Court handing down a smart decision as opposed to maybe a politically expedient one.
And I think this is the problem is that because the court has this completely arbitrary obsession with clearing its decks before the summer recess--which by the way, is just something they impose on themselves; there's no statute or rule that requires them to do that --we're in for, if I can say this on a podcast, we're in for a shit storm.
And it's not just because of what the court's going to do in these cases, which is going to be really problematic, I think politically, just from a matter of the stability of law, it's going to be ugly.
How The Mifepristone Case Reached SCOTUS - Amicus with Dhalia Lithcwick - Air Date 3-23-24
DAHLIA LITHWICK - HOST, AMICUS: But first this week, we preview the most [00:09:00] important abortion case to follow from the high court's reversal of Roe v. Wade back in the 2021 term. Alliance for Hippocratic Medicine versus FDA was filed against the FDA and the US Department of Health and Human Services by a conservative legal group on behalf of some anti-abortion doctors in a jurisdiction in which--lucky ducks!--they could only possibly draw one judge, Matthew Kaczmarek, who had devoted his entire prejudicial career to pushing extreme right wing fringe conservative ideas into the mainstream.
Their claim was that the FDA approval process for Mifepristone, one of the two medication abortion drugs, was haphazard and slapdash and that the FDA illegally accelerated approval of Mifepristone in the 1990s, and then loosened restrictions on it in 2016, again in 2021, without any regard for its deep, profound dangerousness. Alliance for [00:10:00] Hippocratic Medicine also argued that the FDA's 2021 decision to allow telemedicine abortion and the mailing of abortion pills violates a dead letter 19th century anti-vice law called the Comstock Act. And undergirding all of this is their claim that the plaintiffs in this case had standing to bring this litigation on the basis of extremely strong feelings and very wobbly facts, but we'll get there in a minute.
Last April, Judge Kuzmarek issued a decision invalidating the FDA approval of Mifepristone outright, nationwide, because, well, as I said, fake facts, strong feelings. The Fifth Circuit cut back some of the craziest parts of Kuzmarek's decision, but left some of it in place. The Supreme Court is going to hear all of this on Tuesday, and the case is limited to two questions: One, whether the plaintiffs have standing, and whether the FDA did something bad in approving Mifepristone.
[00:11:00] To help us understand the stakes and the scope of the stakes of this appeal, we are so happy to be joined this week by Carrie N. Baker. She's got a JD and a PhD. She is the Sylvia Bauman Professor of American Studies and the Chair of the Program for the Study of Women and Gender at Smith College. She's also a contributing editor at Ms. Magazine and her upcoming book, Abortion Pills: US History and Politics, will be published by Amherst College Press in December.
Carrie, welcome to the show. Holy cow, I have a lot of questions for you.
CARRIE N BAKER: Dahlia, great to be here.
DAHLIA LITHWICK - HOST, AMICUS: So this case has been styled, unfortunately, as just a straight up abortion case, a kind of natural outgrowth of the reversal of Dobbs from two terms ago, but it's actually really, in very specific ways, an abortion pills case. It's a case that sweeps in decades of how the FDA [00:12:00] does licensing, the biotech and big pharma industries, what do we do about interstate mails and the ways in which reproductive medicine and telemedicine have changed, how pregnant people behave since Dobbs. And all of this starts, I think, with this pitched battle to establish, expand, and maintain legal access to abortion pills in the United States over decades.
So I would love for you to just set the table for us, Carrie, by helping me understand how this is different from the kind of surgical abortion fight we were having leading into Dobbs, and how this is kind of a consequence of Dobbs, but also a very different conversation.
CARRIE N BAKER: Abortion pills are, today, 63 percent of the way that people access abortion health care in the country. And it's probably much higher. Just a few days ago, the Guttmacher Institute released a study showing that the number of abortions in [00:13:00] 2023 topped 1 million, which is more than the last 10 years. The last time it was over a million was 2012. And a major reason why abortion access has increased despite Dobbs is because of two things: abortion pills being more accessible, and telemedicine--people being able to access abortion pills through telemedicine.
That happened recently. It happened in 2020 and 2021 as a result of COVID, as everybody began to access healthcare through telemedicine, advocates filed a lawsuit to force the FDA to allow people to get abortion pills through telemedicine. Historically, they had not been able to do that. And so people living in rural areas, people even living in states where there are abortion bans, now are able to access abortion pills through telemedicine from doctors in states that still allow abortion health care.
So, [00:14:00] Abortion pills are really the present and the future of abortion, and that's why they're being targeted in this case. The anti-abortion movement is very aware that abortion pills are the crux to controlling women's access to abortion, or people's access to abortion, and so they're going after it.
DAHLIA LITHWICK - HOST, AMICUS: And just to be really clear, you read those new Guttmacher numbers showing that actually the number of abortions are ticking up. And I guess the headline of that was that 63 percent of those abortions, right? We used to say, when this Mifepristone case was filed, we were like, oh, about 50 percent of abortions were using pills. That number's ticking up, too. That's an increase from, I guess, 54 percent in 2020.
So, I think your point is, this is not a moment in which Dobbs ends abortion in America. It changes how people access it, who accesses it, and this is an attempt to stave off [00:15:00] that shift by an anti-abortion movement who'd been pretty laser focused in a lot of ways on doing away with surgical abortion.
CARRIE N BAKER: Absolutely. They were laser focused on Roe, which overturning Roe did impact access to abortion pills, because in states that have banned abortion, people can no longer get abortion pills from local doctors.
But what they didn't anticipate was telemedicine. And now we have doctors in states like Massachusetts and New York and California who are serving patients in states with bans. Six states passed telemedicine abortion provider shield laws that allow them to do that. And so, about 12, 000 people living in the 14 states with bans are now getting abortion pills through these providers in the six states with telemedicine abortion shield laws.
Now, I will say those numbers from Guttmacher didn't include those patients, so the 63%, it's much higher, actually. Because those 12,000 pills a month [00:16:00] being sent to people were not included in that number. And so, yes, absolutely, this is the future of abortion care. And so that if they can get the Supreme Court to ban the pill outright and prohibit all doctors from prescribing and mailing abortion pills, then it really clamps down on access to people around the country.
Obviously, if they ban it outright, that also clamps access. I will note, though, that there's a robust underground abortion pill network that a decision by the Supreme Court will not be able to shut down.
Way Too Close Insane SCOTUS Case Could've Sunk The Country w Mark Joseph Stern - The Majority Report - Air Date 5-26-24
SAM SEDER - HOST, THE MAJORITY REPORT: One of the things that was unique about the Consumer Financial Protection Bureau to insulate it from politics was to make sure that it was funded by fees it was collecting from financial service entities and through fines. And this was the grounds in which it was attacked.
What's amazing is this is, I feel like this is such a repeat.
MARK JOSEPH STERN - WRITER, SLATE: Yeah, so it actually draws most of its money from the Federal [00:17:00] Reserve, which itself collects money from interest on securities. So it also does collect, of course, fines and fees. That's its main enforcement mechanism. But yeah, the CFPB has been under assault since the day it was created, and the Supreme Court struck down a small part of the law that created it in 2020 by holding that the president can fire its director. As Elizabeth Warren created it, it was supposed to have one director who served a five year term and the president couldn't fire the director unless they did something really, really bad. The Supreme Court struck down that protection, which ironically ended up benefiting Joe Biden more than anyone else because he was able to fire Trump's terrible CFPB director on day one and install progressives to lead it.
But this is the other part of the attack, which is this idea that because the CFPB draws its money primarily from the Federal Reserve, it's unconstitutional. Now, just to hear that sentence, you might be scratching your head and be like, what could possibly be wrong with [00:18:00] that? A bunch of payday lenders and their lawyers at Jones Day, the law firm, concocted this theory that federal programs and federal agencies have to be regularly funded by Congress in a bill that's stamped with the word "appropriations" and that if Congress chooses to fund an agency any other way, including the way the CFPB is funded, it's unconstitutional and must be struck down in its entirety.
And I just want to be clear: these groups, these litigants and their lawyers, they shopped this theory to seven different courts, which all turned it down, basically laughed it out onto the street, before they landed their case at the Fifth Circuit and found a willing audience at the Fifth Circuit, which struck down the entire CFPB, which led to this decision.
So it's another good example of how these litigants will just go shopping to court after court until they find one, usually the Fifth Circuit, that's crazy enough to bite. That's what happened with a lot of Joe [00:19:00] Biden's vaccine mandates, and it's what happened here.
SAM SEDER - HOST, THE MAJORITY REPORT: If someone was to do a word cloud of every conversation that we have had on this program for the past four years about legal cases, the biggest two words would be in huge bold: "Fifth Circuit."
EMMA VIGELAND - CO-HOST, THE MAJORITY REPORT: And then "administrative state" after that?
SAM SEDER - HOST, THE MAJORITY REPORT: And then Chevron, probably.
MARK JOSEPH STERN - WRITER, SLATE: Doing the Lord's work, trying to get people to care about the administrative state. I appreciate it.
SAM SEDER - HOST, THE MAJORITY REPORT: But the Fifth Circuit, this is so messed up. And then I guess the other one would be me mispronouncing that Judge Kanzanski or whatever his name is--
MARK JOSEPH STERN - WRITER, SLATE: Kacsmaryk, who is within the Fifth Circuit.
SAM SEDER - HOST, THE MAJORITY REPORT: Within the Fifth Circuit. But before we get to just that one point, I just want to say the first thing that popped out for me, and I think Kagan ended up bringing this up, was that that's how Social Security is funded. Like Social Security is non discretionary spending, which means that every year there is no word [00:20:00] appropriations for Social Security because Congress does not appropriate money from the general budget to Social Security, it is its own self funding mechanism. They may have to raise the taxes at one point to get it to refund the trust fund, but Social Security cannot add to the deficit. It is not part of the yearly budget. And that's like the half of the government.
MARK JOSEPH STERN - WRITER, SLATE: So Social Security, Medicare, Medicaid, pretty much every other financial regulator, including the Federal Reserve and the FDIC, a bunch of other agencies going back to pretty much the 1790s, all of them are funded in ways different from how the Fifth Circuit said everything has to be funded.
The Fifth Circuit made up this theory out of whole cloth, and essentially declared that trillions of dollars worth of spending and many, many, many parts of the government itself are simply unconstitutional and have to be struck down, destroyed [00:21:00] by judicial fiat.
I think the good news is that the Supreme Court rejected that by a seven to two vote. The bad news is that it even got to the Supreme Court in the first place because of the Fifth Circuit's total insanity and depravity. And of course that two justices still saw fit to dissent and attempt to--we can talk about this--basically trigger a recession that would have destroyed the country.
SAM SEDER - HOST, THE MAJORITY REPORT: I want to talk about that, that part of the two, but walk us through, because maybe this is a good time to illustrate what, why the Fifth Circuit? How does our federal judiciary system, how does the Supreme Court get cases? And also what happened to the attempt to stop the judge shopping? I was under the impression that the federal judges had got together and said, we're gonna stop this judge shopping thing, and then it turned out to be more of like, we think that people should stop judge shopping.
MARK JOSEPH STERN - WRITER, SLATE: Yeah. So for your second question, that's basically what happened. There was a rebellion amongst the judges who like being [00:22:00] shopped to, people like Matthew Kacsmaryk, when the federal judicial conference said we're going to curtail judge shopping. All of these guys in the Fifth Circuit and the district courts within the Fifth Circuit said, absolutely not. How dare you? This is outrageous. Did like a full court press. And so the judicial conference ended up walking that back and urging individual courts to adopt these new guidelines, which many courts did not, including the Northern District of Texas, which is where Judge Kacsmaryk and many other wack doodles sit.
And so we are still dealing with this problem. Of course, this case originated years ago, so it wouldn't have been directly affected by this. But there's more that the Supreme Court can do. And one thing it can do is, in cases like this one, add a note at the end saying, by the way, we see how egregiously engineered this case was to be placed before the Fifth Circuit for no reason, and part of our decision is rooted in our disgust with how the lower court here manipulated the rules to help the litigators. [00:23:00] Of course, the Supreme Court didn't do that because they're still cowards and they're afraid to tackle this problem directly. But it's continuing to boil, and it's something worth keeping an eye on because the court does have other tools.
And of course, Congress could step in at any time and fix this, but Republicans don't want it to.
Fact Checking the Supreme Court Part 1 - 99% Invisible - Air Date 6-4-24
ROMAN MARS: The Orange County Courthouse in Santa Ana, California, is a large granite and sandstone building from the early 20th century. It has Romanesque arches out front. Inside, there’s a courtroom, some uninspiring conference rooms, and elaborate wrought iron staircases. Last year, Jennifer Birch found herself underneath it all, standing in the courthouse basement.
JENNIFER BIRCH: It was kind of a half basement. They have little windows. It reminded me of a room that Indiana Jones might be in or something. It was very historical-feeling and like, “Okay, let’s not touch anything.”
ROMAN MARS: The Indiana Jones style room that Jennifer stepped into was the Orange [00:24:00] County Historical Archives. Jennifer was there doing research for a group called Moms Demand Action. It’s an organization that advocates for gun control and regulation. Not all the members are actually moms.
JENNIFER BIRCH: Oh no, not at all. I work alongside men, students…
ROMAN MARS: But the thing they all have in common is that they care about gun control, which is exactly why Jennifer was in the courthouse that day. Moms Demand Action had dispatched volunteers like Jennifer to courthouse basements and local archives all over the country to dig up some of the oldest, most overlooked gun laws in the nation’s history. And their goal ultimately was to fact check the highest court in the nation.
GABRIELLE BERBEY: Basically, Moms Demand Action thought the Supreme Court got it wrong.
ROMAN MARS: That’s reporter Gabrielle Berbey.
GABRIELLE BERBEY: And not just in the content of the decision. The Moms suspected that a key historical fact used to decide one of the biggest gun cases in American history [00:25:00] was just straight up factually inaccurate. The case in question was a landmark case from 2021 called New York State Rifle and Pistol Association Incorporated versus Bruen.
ROMAN MARS: If you’re a legal nerd, you probably know this case because it is a big one. The case dealt with some gun owners who had been denied permits to carry concealed firearms in New York State. The question of the case was whether a gun owner needs special circumstances for self-protection—something like a restraining order—to carry a gun hidden on their person.
GABRIELLE BERBEY: The Court ended up siding with the gun owners, essentially saying that most people should be able to carry concealed firearms if that’s what they want to do.
ROMAN MARS: This was a huge decision. It blew the top off gun restrictions across the country. But there was one thing in particular about the ruling that caught the attention of Moms Demand Action. They were fixated on how the Court explained its decision.
GABRIELLE BERBEY: In this case, the Justices [00:26:00] hinged their decision on one key historical fact. Justice Clarence Thomas wrote the concurring opinion, and he said that, by and large, there were no laws about who can carry a concealed weapon passed before the year 1900–and because of that, concealed carry laws are not part of the “history and tradition of the United States.”
ROMAN MARS: Moms Demand Action looked at that fact and basically called bullsh*t. They believed that someone in the history of the United States must have tried to regulate concealed carry before 1900, and they believed this could make a difference in future gun cases elsewhere in the country. So, they set about proving it.
GABRIELLE BERBEY: So down in the Santa Ana courthouse, Jennifer Birch started from the beginning: ordinances from the 1800s.
JENNIFER BIRCH: I opened the book, and the pages were old. The writing was very difficult to read. The cursive was real.
GABRIELLE BERBEY: The archivist gave her some white gloves so she wouldn’t smudge the paper.
JENNIFER BIRCH: And I’m [00:27:00] turning these pages, which feel very brittle. The first couple… Ordinance #1 would be like, “Here’s when we’re going to meet as Board of Supervisors. And then here’s some things related to where you would put your horse and things like that.” So, I’m flipping through this, going, “I really don’t know what I’m going to find. This definitely sounds like the wild west.” But when I first saw the words “concealed weapon” in the ordinance and I thought, “This is what we’re looking for,” my jaw, I’m sure, dropped, and I may have gasped.
ROMAN MARS: What Jennifer found was a law passed in 1892 that said people in Santa Ana could not carry concealed weapons. It was a law showing that, despite what Justice Thomas claimed, concealed carry bans were in fact part of the history and tradition of the United States.
JENNIFER BIRCH: And I felt like when I first saw that, not only did my heart rate go up a little bit, but—not [00:28:00] to be overly dramatic—I felt like I was hearing their voices and their words coming at me from history. “This is remarkable. They cared about it. They cared about it a lot.”
GABRIELLE BERBEY: The Court said that, apart from a few outlying laws, the U.S. did not stop people from carrying concealed weapons for the purpose of self-defense—at least not before 1900. That was the big justification for the ruling. And yet, here Jennifer was–holding one such law in her gloved hands. And Jennifer and the other moms didn’t just turn up one law.
JENNIFER BIRCH: So we went to the next county over and kept going. I thought there’s so much that we could uncover that I’m going to keep going until I feel like I’ve exhausted every city that was incorporated prior to 1900.
GABRIELLE BERBEY: Across the country, they kept finding other laws.
JENNIFER BIRCH: We found it in every single place we looked. In small cities, large cities…
GABRIELLE BERBEY: What Moms Demand [00:29:00] Action discovered is that one of the biggest gun cases in American history was decided based on some questionable data. But it turns out this problem is bigger than just that one case, and it’s bigger than Moms Demand Action. The Supreme Court has a long relationship with bad facts.
ROMAN MARS: In 2017, ProPublica analyzed recent Supreme Court cases for factual errors. They found that, in 2013, Justice Kennedy claimed that DNA analysis and criminal cases can ID suspects with perfect accuracy. Not true.
GABRIELLE BERBEY: They also found a case where Justice Alito said that 88% of all companies perform background checks. But no one is even sure where that very specific number came from.
ROMAN MARS: ProPublica’s research even turned up in error in one of the most consequential voting rights cases of the 21st century. In the landmark case, Shelby v. Holder, Justice Roberts cited data about voter [00:30:00] registration rates. His numbers turned out to be straight up wrong. And those bad facts were then used to strip away voter protections.
GABRIELLE BERBEY: In total, ProPublica found seven Supreme Court decisions, just in recent years, where the Justices got their facts wrong.
ROMAN MARS: Sometimes these mistakes didn’t have much impact on the decision itself, but sometimes they do. Sometimes Justices hinge their decisions on these facts. So, how is it that the highest court in the nation can get their facts wrong not once but again and again and again? And what even happens when you prove them wrong?
Opinionpalooza A Bad June Rising At SCOTUS Part 2 - Amicus With Dhalia Lithwick - Air Date 5-25-24
DAHLIA LITHWICK - HOST, AMICUS: So listen, I want to start with this big gerrymandering case, Alexander, that came down on Thursday. Mark and I chatted about it in a pop up episode. I guess I want to ask you both, just as a framing question, is there any way in your mind to connect up that 6-3 decision in [00:31:00] Alexander, which more or less, I think, closes the door on a whole class of racial gerrymandering claims? And the insanity, the performative insanity of Justice Alito's Teflon flag behavior, is there a through line here that you can find? Because I hate that they're being covered as different stories as front stage/backstage stories. I think they're connected. And I think maybe we should try to name it because you are two great big brains.
Steve, go first.
PROFESSOR STEVE VLADECK: I think the place to start is, what are facts anyway? And that to me is the common theme across both of these. The nerdy technical problem with Justice Alito's majority opinion in Alexander is that the Supreme Court basically fancies itself a trial court, and it is deciding for itself factual questions that the trial court decided in this case, and to which the trial court is supposed to get deference. And that may sound like a small technical problem, but it's actually an amazingly remarkable sign of disrespect [00:32:00] from an appeals court, any appeals court, to the hard work of trial judges, in this case, a three judge district court in South Carolina that, as Justice Kagan points out in her dissent, did a lot of work in this case.
I think that's the through line to me is, facts are whatever Justice Alito wants them to be. My favorite piece of his indirect relayed conversation with Shannon Bream about the upside down flag story was that he was worried about the kids at the bus stops in January 2021, when all of the local schools were closed, and there were no kids at the bus stops. When you have a loose relationship with facts in the first place, maybe you're going to be less worried about facts found by other courts that you're supposed to defer to. That's my off-the-cuff stab at trying to tie these two things together.
MARK JOSEPH STERN - WRITER, SLATE: I just want to add one funny thing, which is that even Clarence Thomas wouldn't fully join Sam Alito, like sifting through the record from the district court, and nitpicking at each fact. Clarence Thomas in his otherwise characteristically gonzo dissent, taking on Brown versus [00:33:00] Board of Education; rejecting one person, one vote; saying racial gerrymandering is non justiciable. He begins by saying, Oh, but by the way, it is pretty weird that the majority decided to, quote, "sift through volumes of facts and argue its interpretation of those facts." That's not how clear error review works. And so I'm not going to join that part of the opinion. Alito has lost even Thomas. And yet, there's John Roberts lining up to join. There's Amy Coney Barrett and Brett Kavanaugh lining up to join. And it just feels like if those justices wanted to send Alito a signal in any way, shape, or form, whether it's about the flag, whether it's about the increasingly deranged jurisprudence that he's taking a few steps too far, that could have been a good place to do it. Hey, maybe let's do some law, buster. But they decided no, no, we're all in. all in on this opinion. And that is a very depressing signal for me heading into a bad June rising.
PROFESSOR STEVE VLADECK: It's back to the politics of grievance. Alito is constantly aggrieved by everyone and everything. And [00:34:00] today he was aggrieved by Justice Kagan's majority opinion in Cooper, which he at one point accuses her of misrepresenting him, even though she wrote it.
DAHLIA LITHWICK - HOST, AMICUS: Yeah, I think my slightly--I want to say gentler, but it's not gentler, it's probably grumpier--version of the same point, Steve. I always use the word grumpy with Steve once in every show. It's an old inside joke that I don't care to explain, it has to do with Muppets.
But I think my version of the same point is these shifting presumptions of who is bad in the world are really interesting, right? And, as I noted on Thursday, talking about the Alito opinion, it's amazing that you just want to give the benefit of the doubt to every state legislator ever, who are picking their own voters, like they are engaged in an enterprise that is sketch to begin with. They all get the presumption of being in good faith?
Whereas, again, if you look at the immunity case, the presumption is that every single [00:35:00] federal prosecutor is a lying bastard. And it is just amazing to me how you can move through the world, creating these presumptive categories of friends and enemies. It's very Clarence Thomas. It's very Richard Nixon. It's not the way we do law.
MARK JOSEPH STERN - WRITER, SLATE: Who doesn't get the presumption of good faith is the plaintiffs in voting rights cases, right? Because there's this whole section where Alito says that these plaintiffs seek to transform federal courts into weapons of political warfare that will deliver victories that eluded them in the political arena, which is another way of saying vindicate the promises of the 14th and 15th amendments.
PROFESSOR STEVE VLADECK: I think there comes a point where we have to ask ourselves, if you were a justice who lived in the media ecosphere of the far right wing, and that was basically the world you consumed, and that was the information you were fed, well, how would the world look to you? And I think the answer is it would look a lot like apparently it looks right now to Justice Alito.
DAHLIA LITHWICK - HOST, AMICUS: Which is one other point, Steve, [00:36:00] that I think I want to drop here because I didn't actually know about this flag, I just didn't, I guess I missed a beat. I didn't quite know about the January 6thers upside down flag. I think one of the things that I keep learning is how deep, deep, deep down the rabbit hole he is. This is not Stop the Steal. This is not Don't Tread On Me. This is like an ecosystem within an ecosystem within an ecosystem that I don't even know. And it's so Interesting to me, of a piece with what you're both saying, that might knock on Alito for a long time, has been his utter failure of imagination, the inability to imagine anyone who hasn't lived his life, every single woman in the United States who wants an abortion is just invisible to him. The physicians who are in the EMTALA case, they're [00:37:00] real to him, but the women who have to be helicoptered out of state, they don't exist. And the idea that he is so far down a wormhole that he couldn't possibly imagine the lives that you and I live, that just is making my brain explode.
PROFESSOR STEVE VLADECK: There was a line, this just got, I think, run over by subsequent events. But in the Mifepristone case, when the court put Judge Kazmarek's ruling on hold last April, there was a line in his really, I think, revealing dissent about the Biden administration not doing anything to disabuse anyone of the notion that it wouldn't comply with an adverse ruling, that was a fever dream in, not even Fox News land, right? KJP [Press secretary Karine Jean-Pierre] had literally stood at the podium in the press room and said, we're going to comply with whatever you do in this case.
I think the question at some point becomes less about Justice Alito and back to where Mark was, more about the others, and how much they're going to abide this kind of behavior, both in [00:38:00] his formal work and off the bench.
And that to me is the real story of Alexander is that there were no separate opinions besides Thomas, which, has problems of its own. But for Kavanaugh and Barrett and Roberts to basically sign on to this evisceration of the clear error standard, I think is not surprising, but when folks try to tell us that the court actually is not as far to the right as we think, and that it was pretty moderate and that this term was actually a bit of a mixed bag, I would like to point back to that and say, Mmm, try again.
The IVF Decision We Should Have Seen Coming - Amicus With Dahlia Litchwick - Air Date 3-2-24
MARK JOSEPH STERN - WRITER, SLATE: And Alito was writing a dissent, and I was listening at arguments, and Alito was so extra pissy during arguments in the social media case, and I thought, this is a sign, this is a tell that he's writing a furious dissent, a gonzo dissent from the court's denial of a stay for Trump. And then, it all fell apart on Wednesday when the court revealed that, I guess, it took more than two weeks to write a one page scheduling order—which, by [00:39:00] the way, doesn't even expedite the case at the pace that Jack Smith requested—special counsel prosecuting Trump—or at the pace that the court itself expedited the Anderson case, kicking Trump off the ballot in Colorado.
So it seems like, as you and I have discussed too many times now, frankly, an emergency is an emergency when it interferes with Donald Trump's ability to run for president or stay out of prison, and everything else can wait indefinitely. And again, I just think that the Pope holds himself to a higher standard of transparency and integrity than the current Supreme Court majority, because they are so clearly—I hate saying this because I really let myself believe otherwise—they're in the tank for Trump. They're doing what they can to help Trump avoid prison and win the presidency. I'm sorry, I don't want to be the cynic who just says it's a partisan court, but after Wednesday, [00:40:00] I do not see how we avoid that conclusion.
DAHLIA LITHWICK - HOST, AMICUS: Yeah. I think there's this harder question at play here, which is there's the merits question, and we don't need to belabor... there's no merit to the Trump appeal.
MARK JOSEPH STERN - WRITER, SLATE: None. Zero. Frivolous.
DAHLIA LITHWICK - HOST, AMICUS: And then there's the shot clock question, like the doomsday clock ticking down. And I think what we're realizing is that we keep thinking, as you said, because they treated the Colorado cases an emergency, they would treat the immunity case as emergency, but those are very different kinds of emergencies. And, let's recall the COVID mitigation cases were emergencies. SB8 was an emergency. So we have to stop thinking that our emergencies are theirs, or a legal an emergency and a political emergency are the same thing. They're two totally different things, and I guess we just need to sit in that.
I'd love for you to, having just completely disparaged this entire enterprise of watching and waiting for [00:41:00] more signals from the court, can you do your best guess at the court hears this case in late April, and I don't know, I think June is the earliest we get an opinion, although people are saying maybe we could get one in May, and Judge Chutkan's gonna allow three months for trial prep, so we're looking at a September trial, and then we run into the DOJ guidance about trying cases in an election year.
MARK JOSEPH STERN - WRITER, SLATE: So the court is hearing this argument at the end of April, the week of April 22nd. I'm thinking maybe Thursday of that week, a special argument day, but we shall see. They didn't deign to tell us. The court issues all of its opinions by the end of June. I am very skeptical that the court will get this one out before the end of June, because there is a deep tradition of waiting to issue opinions on the Supreme Court until everyone is done writing, including the dissenters.
And this was put to the test when Dobbs leaked [00:42:00] in 2022. After Dobbs leaked, we know from behind the scenes reporting, the majority pushed to release the majority opinion as quickly as possible and just let the dissenters push out their work whenever they were finished, but there was a fight, there was resistance, and ultimately, the court decided not to take that route because this tradition is so, again, deeply entrenched in how the court operates.
But that gives bad faith actors, like Sam Alito--you look up bad faith in the dictionary, you see a picture of Sam Alito; you recoil and slam it shut and throw it out the window--that gives Alito an opportunity to simply prevent the majority from saying anything, from issuing its decision, until he's done writing his dissent, which could magically take until the very last hour or minute of the month of June before they all flee on their summer vacations.
Let's say the decision comes out at the end of June; that's three months for trial prep, if starting the very next day in [00:43:00] July, then that takes us from July to August to September. That trial prep wraps up, say, maybe sometime at the end of September, the trial begins late September, early October, the trial itself is going to take three months. The trial itself is going to be a beast. Think about voir dire in that case. Think about just picking a jury and how hard Trump will fight for every single juror. He's already said the District of Columbia, where the jury will be drawn from, is totally biased against him. So they're going to drag this out at every opportunity.
And even though Judge Chuckin is not going to play like Judge Cannon in Florida and just give him. everything and let him run out the clock on every single objection, she does have certain due process obligations that she's going to have to afford to him. So I find it impossible to imagine this trial wrapping up before November, probably after the election.
And I think we are all in agreement that if Trump wins the [00:44:00] election and assumes the presidency, he will make this go away. He will fire Jack Smith. He will have the charges against him dissolved. He can try a self pardon, but he doesn't even really need to because he will be in control.
And so under the best timeline, maybe the trial wraps up right before election day.
DAHLIA LITHWICK - HOST, AMICUS: Yeah, I don't think there's any good scenario. And it reconfirms this point, which is the court, under the best possible construction, is trying to look at this as not a legal emergency. Don't care if it's a political emergency. And yet the knock on political emergencies that are going to ensue from this delay, no matter what happens, are catastrophic. And I guess it just keeps bringing me back to, I cannot quite believe that one of the nine people who are making these decisions has a spouse that was actively involved in the notion that the 2020 election was stolen. It's so bananas that the bananasness of it, as [00:45:00] you say, this is how you would cover the Medicis. Look at Lord Medici and his lovely wife who was part of the insurrection. It's bananas.
MARK JOSEPH STERN - WRITER, SLATE: Three others who were, of course, appointed by Trump.
And can I just add one gloss here? While I'm on a tear, I think the best defense, and I think Jack Goldsmith has offered a version of this, is that if there's an emergency here, it's a political emergency that Trump needs to face trial before November, because if he wins, he'll make the charges go away. And that's not a true emergency in legal terms. And so the court has no reason to play ball with Jack Smith.
Okay. Let's flashback to early 2021. Trump has been on his execution spree, killing as many federal prisoners as he can before Biden comes in and imposes his promised moratorium on capital punishment.
There is a case right at the end on January 15th, where the Trump administration wants to kill one last person, and a lower court blocks it. And the Trump administration basically [00:46:00] goes to SCOTUS and says, Hey, if you don't let us kill this guy now, and say this is an emergency and clear away the stay and let us inject him and kill him, then we all know Biden's going to come in and allow him to survive and indefinitely pause the execution. And we think that's an emergency and a reason for you to let us move forward with this execution. And the Supreme Court agreed. And the Supreme Court said in so many words, this is an emergency. We will clear away the stay and all of the lower court impediments. We will allow you to execute this one last person because Biden is about to come in and impose a moratorium.
That was an emergency to the Supreme Court. And this, all of this, is not. And if that does not prove that there is something worse than the bad legal reasoning going on, that there is some deep, corrupt partisanship at play here, I just don't know what [00:47:00] can.
SCOTUS Flag Neighbor Exposes Alito’s BS Story- The Majority Report - Air Date 6-7-24f
SAM SEDER - HOST, THE MAJORITY REPORT: Clarence Thomas has received millions of dollars, dwarfing any other number of gifts, because now he's had to go back and basically check off which gifts he's gotten, et cetera, et cetera, because he was caught not recording these things.
Millions of gifts from Harlan Crow, a billionaire who was recruited by Leonard Leo, who was the former head of the Federalist Society, the guy who's basically in charge of taking care of the judges. When Clarence Thomas, 20 years ago, threatened to quit the court because he didn't have enough money to function, Leonard Leo introduced him to what became his new best friend, Harlan Crowe, a billionaire, who then proceeded to pay for things like his mom's house, his kids' private school education, and take him on private jet vacations multiple times a year for years.
And Clarence Thomas decided, you know what, my life as a justice is not so [00:48:00] bad. I think I'll stay on the court. It's almost like getting your pay off. It's really having your cake and eating it too.
And so while Clarence Thomas, clearly--and I don't know if he changed any of his votes--he just found a benefactor who appreciated his work and paid him to stay on the court, essentially.
Sam Alito refuses to recuse himself from any case involving Trump in January 6th, despite the fact that his wife now clearly was flying flags in support of, and according to him, his wife--Alito had nothing to do with it, of course. Except for the problem is, is that now it seems the story he told Congress in sending a letter and explaining the incident was at the very least, according to a person involved in this story, a serious mistake, if not an outright lie.
This is [00:49:00] Sam Alito's neighbor, on CNN, the other day. This is Emily Barden, Sam Alito's neighbor--Baden, excuse me.
EMMA VIGELAND - CO-HOST, THE MAJORITY REPORT: Very close to Biden.
SAM SEDER - HOST, THE MAJORITY REPORT: Yeah, apparently. Here she is explaining that Sam Alito either made a big mistake when he said the wrong things to Congress, or he lied.
NEWS CLIP: And and so, okay, so now let me get to the upside-down American flag, and go through this in a bit of detail, because I think here is where your point about what he is alleging happened here does not comport with the timeline.
So the flag is flying. Justice Alito says his wife flew it because she was, quote, "greatly distressed" by her disputes with you. And in a letter just explaining his motivation to put up the flag He says, and I quote him again, Emily, "A house on the street displayed a sign attacking her personally" -- I guess that's the you are complicit or you know that you were just talking about but that you say was not directed at her -- "and a man [00:50:00] who was living in the house at the time trailed her all the way down the street and berated her in my presence using foul language, including what I regard is the vilest epithet that can be addressed to a woman," which is the c word. Now let me just break this down.
SAM SEDER - HOST, THE MAJORITY REPORT: I was going to say, is it liberal or is it like, you have, you know, you, you have your own job. Yes.
EMMA VIGELAND - CO-HOST, THE MAJORITY REPORT: No Fault Divorce Supporter.
SAM SEDER - HOST, THE MAJORITY REPORT: You have the right to vote. Okay, go back.
NEWS CLIP: It can be addressed to a woman, which is the C word. Now, let me just break this down, Emily. You say it was you who said those things. It was not your now husband. But you say Alito is lying here for another very basic reason. Can you explain?
So I, At best, he's mistaken, but at worst, he's just outright lying. And there was a neighbor who even witnessed this and witnessed me using that [00:51:00] unfortunate term. And what else I said in that interaction is so important.
SAM SEDER - HOST, THE MAJORITY REPORT: Hold on a second. I just want to say, kudos to this lady for owning up for saying that word, and also for deploying it in perhaps one of the most appropriate and maybe the only appropriate circumstance, one can deploy that.
EMMA VIGELAND - CO-HOST, THE MAJORITY REPORT: A righteous slur. Yep. A hundred percent.
NEWS CLIP: What else I said in that interaction is so important, and I hope it's not getting forgotten in the discourse around the word.
In that interaction, she approached us, started screaming at us, used all of our full names, which to me felt like a threat because you're a stranger. We don't know you. You don't know us. How do you know our full names? And I just, I started yelling, How dare you? Because they both were there at the same time. I said, How dare you? You're on the highest court in the land. You represent the Supreme Court of the United States. You're behaving this way. You're yelling at a neighbor. You're harassing us. [00:52:00] How dare you? Shame on you. And I did use the word. So if that in any way distracts from that real message, I do regret using the word because the message is important.
It's like the power imbalance between these people and me. I am, I'm, I'm nobody to them. And the fact they took umbrage with my sign is telling enough. It shows like a bias.
And I want to talk about that, but just to be very clear on the timing, he's saying that she put up the flag because you said those things.
But when we look at, there was actually, you called 911 on that day. There's actually a police report about that incident. And that shows that the timing doesn't work, right? The flag was up before. The flag picture that the New York Times had was weeks before that incident actually happened where you called her that word.
So what he's saying here, you're saying at best mistaken, but it certainly is just, it's categorically by the dates not true, right? She didn't put the flag up for that reason.
Absolutely 100%. And that's what I want to really drive home to [00:53:00] people is that this happened on February 15th. And we know that because they had been harassing us so long that we were like, we need a paper trail of this. We better call the cops right now. Like I said, these are federally protected people. They have security detail. They represent the judicial system. They are the law. And I am just a regular person. And so yeah, we called the cops that day. It was February 15th. And I think the photo of the flag was on January 17th.
Yes. So the timing doesn't add up.
EMMA VIGELAND - CO-HOST, THE MAJORITY REPORT: Yeah. We haven't seen such a righteous neighbor since Rand Paul's neighbor.
SAM SEDER - HOST, THE MAJORITY REPORT: Yeah, exactly. But here's the thing: There's no argument as to whether Alito lied about this. There's no argument. There's a paper trail. He's lying to Congress. What's it going to take for John Roberts to stand up and say, okay, this seems to, like, it's going a little [00:54:00] far here, and the guy should recuse himself, he's lied to Congress, we know that he was the source of a leak during the ACA decision back in 2012, there's every reason to believe that he was the leak of the Dobbs decision came from him. And the guy is a category. He lied to Congress. This is a Supreme Court justice. And the idea that Dick Durbin is not hauling these people into Congress, even if he can't impeach them, because he doesn't have the votes, is just--
EMMA VIGELAND - CO-HOST, THE MAJORITY REPORT: Even if they won't show up. Bring that neighbor on, not on CNN. Why is she on CNN instead of a hearing that Dick Durbin is holding, right? She lives right around the corner in Washington, D. C. It'd be pretty easy to figure out the situation.
OFF-CAMERA VOICE: Material witness about this political symbolism coming from--
EMMA VIGELAND - CO-HOST, THE MAJORITY REPORT: Exactly.
SAM SEDER - HOST, THE MAJORITY REPORT: About this political symbolism, and now every reason to [00:55:00] believe that the Supreme Court justice has made a deliberate lie to Congress. Not a great look for one of nine people who basically dictate the laws of this country.
Delegitimize The Court - Contempt of Court with Elie Mystal - Air Date 8-22-23
ELIE MYSTAL - HOST, CONTEMPT OF COURT: Having explained kind of how we got here, what do we do about it? Because while it's great to say, Oh, we should empower Congress more, I imagine, I can play the thought experiment of going into John Roberts' house and saying, John Roberts, you should use less power, and him escorting me to the door. Certainly, Neil Gorsuch barely thinks the federal government should be allowed to exist, certainly doesn't think that any executive agencies, like the ones you were mentioning that Congress deployed after reconstruction, certainly Neil Gorsuch doesn't think that any of those agencies are allowed to exist. So, how do we go about depowering the court when the court itself is the institution that says, [00:56:00] We have all of this power?
NIKOLAS BOWIE: Yeah, so you can think of a few obstacles in the way of Congress or the American people disempowering the court. Some are legal and some are cultural. So, to the extent that you focus on the legal obstacles, but you don't address the cultural obstacle, so you're like, the Supreme Court decides what the constitution means, so if Congress tries to stop the court, the court will just say it's unconstitutional. At that point, you've lost. Because that's true, you know, the court, John Roberts is not going to agree to, like, cede the enormous amount of power he has. That's, you know, would be a revolutionary act of, uh...
ELIE MYSTAL - HOST, CONTEMPT OF COURT: He's not Cincinnatus, all right?
NIKOLAS BOWIE: Right... generosity. But, the key thing is it's cultural, so, going back to Dred Scott, Congress's and the American people's response to Dred Scott, some of them were like, awesome! We're going to form a country that's like based on this idea. But for the people who [00:57:00] remained part of the United States, the response to Dred Scott was not, Rats! I guess we'd have to wait for Chief Justice Taney to die so we can replace him with a better judge. It wasn't even, let's pack the court with better people. It was, We do not think the court should have this power, so we are going to ignore this decision. So, in 1862, so five years after Dred Scott, in the middle of the Civil War, Congress passed a law that said, Slavery in the territories is abolished. No more slavery in the territory. The holding of Dred Scott, one of the holdings of Dred Scott was Congress cannot regulate slavery in the territories. Congress has said, No, we just disagree with you. And we're going to enforce this ourselves using our own people rather than, you know, comply with this decision that we regard as deeply immoral and an inappropriate interpretation of the Constitution.
When the court started [00:58:00] exercising this power more after the Civil War and during Reconstruction, some members of Congress were like, Hey, you know, everything the court does is a consequence of federal law. So if the court is trying to assert its supremacy over us, we should just take away its power to do that. So there were some bills to prohibit the court from issuing orders absent the support of three quarters of the Supreme Court, on the theory that you need super majorities of congress to overcome a presidential veto, so surely a Supreme Court veto should not be even more powerful than that. Some members of congress said, Let's control the membership of the court. Some members of Congress said, Let's control the funding that the court receives. Let's change how the court operates. Some members said, Let's take away its power to issue certain types of orders. So, when it comes to what they call "political questions", the court would not have jurisdiction to decide them.
And all of these options [00:59:00] have been employed in the subsequent century and a half; they remain available today. And so it's really just a matter of asking, What do you think Congress would need to do before Chief Justice Roberts would say, Okay, I give up. And the answer is, it's actually not a legal question at all, really. It's just a question of, like, what do you think you could politically do to reassert democracy?
Note from the Editor on some of Alito's finer absurdity
JAY TOMLINSON - HOST, BEST OF THE LEFT: We've just heard clips starting with Amicus, discussing the Supreme Court in the big picture. Then Amicus dove into the Mifepristone case. The Majority Report looked at the practice of judge shopping. 99% Invisible looked at the long history of the court getting their facts wrong. Amicus discussed the gerrymandering case, followed by Trump's appeal and how the court treats different emergencies. The Majority Report got into some of the corruption of the court. And Contempt of Court looked into the history of how and when the court started gaining power.
And those were just the top takes. There's a lot more in the deeper [01:00:00] dive section, but first, a reminder that this show is supported by members who get access to bonus episodes, featuring the production crew here, discussing all manner of interesting topics, all while making each other laugh and the process. To support all of our work and have those bonus episodes delivered seamlessly to the new members-only podcast feed that you'll receive, sign up to support the show at bestoftheleft.com/support. There's a link in the show notes, through our Patreon page, or from right inside the Apple podcast app. If regular membership isn't in the cards for you, shoot me an email requesting a financial hardship membership, because we don't let a lack of funds stand in the way of hearing more information.
Now, before we continue onto the deeper dives half of the show, I just wanted to really highlight a couple of things about Alito. He's really getting a reputation among court watchers as the guy who will try the least to cover the fact that he's a partisan hack and he will go to extreme lengths to twist any logic to come to the conclusion he wants. And he doesn't seem to really be ashamed of it. And so [01:01:00] there are a couple of instances that really drive this home and they're worth going over.
The first is great, because it assures you that it's not just the left being critical of Alito. This from "The Republican Parties' Man Inside the Supreme Court" from Vox: " Alito published a dissenting opinion, claiming that the Consumer Financial Protection Bureau, the brain child of Democratic Senator Elizabeth Warren, was unconstitutional. The opinion was so poorly reasoned that Justice Clarence Thomas, ordinarily an ally of far-right causes, mocked Alito's opinion for 'winding its way through English, colonial and early American history", without ever connecting that history to anything that's actually in the constitution.
So, that's hilarious. It's kind of like if Marjorie Taylor Greene were to advise someone to like, bring it down a few notches, if you want to be taken seriously, right?
The next is Alito's refusal to recuse himself from cases involving [01:02:00] January 6th in the wake of the news about his home flying political flags very much in line with the flags insurrectionists flew. The plain law in the federal code about judges and justices needing to recuse is really simple. "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned". And as any first-year law student will tell you the word shall is pretty important in that sentence. It's really unambiguous. While the bar set is actually pretty low, in that impartiality only "might reasonably be questioned". Now, Alito's argument for not recusing himself depends not at all on the actual law, but instead entirely on the voluntary, toothless ethics code [01:03:00] the Supreme Court wrote for themselves last year. That code, on recusal, starts with "A justice is presumed impartial and has an obligation to sit unless disqualified". And then it goes on to set a higher bar for what would require recusal, which basically includes stuff that justices can just think in their own heads and rationalize that, Well, if a person knew all the context and all the things that I know about how unbiased I am, they would never doubt me and that's enough reason for them to not be disqualified. The actual line in their code about the duty to recuse being triggered is when a "reasonable person who is aware of all relevant circumstances would doubt that the justice could fairly discharge his or her duties".
So, that's great for self-rationalization, not so great for our transparency and keeping faith in the institution of the court. But I gotta say [01:04:00] the real master stroke. Is that he basically turns the question on its head. So that instead of erring on the side of recusal, for the sake of maintaining trust in the courts, as the federal statute clearly requires, he points to the voluntary ethics code that again says "A justice is presumed impartial and has an obligation to sit unless disqualified", and just throws up his hands and is like, Well, I chose not to recuse myself, therefore I have to sit. Right? He's rationalized his own impartiality. And then, because he hasn't been disqualified, he has an obligation to sit. If he doesn't sit, that would be against the rules. So, yeah, maybe the actual rule says you "shall" recuse if there's any doubt, but by their own written rules, he's like, Ah, I wish I had more flexibility, but I don't, I really have to sit in on these cases.
And [01:05:00] there's one last one that sparked a very old thought of mine. I realized about 10 or 15 years ago that a lot of the arguments I was hearing from conservatives on a whole range of topics we're so badly argued that they were the kinds of things that I could remember thinking when I was a child or a teenager but had grown up and grown out of those, like, really bad, simplistic ways of thinking and Justice Alito has gone ahead and reminded me of something I used to think long, long ago. And it goes into his rationale for allowing racial gerrymandering. Basically, if you just don't call it bad, if we just say that it's political. And don't question whether it's also racial then you can go ahead and do it. So, recently, just coincidentally, I was looking at an old year book of mine and saw where I had been asked to give a quote to put next to my picture for like a club or a class that I was [01:06:00] in. And boy, did I say something that did not age well. It didn't age well, but it's the sort of thing that should have been entirely expected from a 17 year old White guy who grew up surrounded by people who almost entirely looked like me. The quote I gave to the yearbook was—and I have to say, it's not just that I now think that the sentiment is wrong, but also, like, listen to how obnoxious I was to phrase it as a sort of faux, old timey biblical-esque kind of bullshit to try to make it sound profound, like, maybe I was trying to be ironic or something, but I sorta doubt it—so the quote I give to the yearbook was "Judge not the action, but the intention within it". What a douche. That should be written in calligraphy on the founding documents of all of the private social clubs dedicated to [01:07:00] protecting entitled assholes from ever having their entitlement questioned. It is the classic argument that as long as a person had good intentions or can even make a passing argument that they sort of had good intentions, then they should be able to get away scot-free with whatever damaging, discriminating, harmful thing they did, policy they advocated for, what have you. In fact, it's really the bedrock principle of the don't-call-me-a-racist brand of racists these days. Racists have been spending the past several decades perfecting the art of justifying racism by other means, while claiming to abhor overt, old school, race-based hatred. In fact, they now regularly claim that the worst thing a person can be called is racist, regardless of whether, for instance, policies they support are well-known to disproportionately hurt people of color.
Which brings us to Alito's justification [01:08:00] for racial gerrymandering. From this article from Vox, "The Supreme Court's new voting rights decision is a love letter to gerrymandering", it says, " Alito frequently disdains any allegation that a White lawmaker might have been motivated by racism and he's long sought to write a presumption of White racial innocence into the law. His dismissive attitude toward any allegation that racism might exist in American government is on full display in his opinion: 'When a federal court finds that race drove a legislature is districting decisions, it is declaring that the legislature engaged in offensive and demeaning conduct,. Alito writes, before proclaiming that 'We should not be quick to hurl such accusations at the political branches'".
So basically. It's too offensive to accuse someone of racism, even when their actions have demonstrably negative outcomes for people of color. [01:09:00] Therefore, actions with racist outcomes are allowed and shall not be questioned because, as every racist will tell you, being accused of racism is actually worse than racism itself. And as always, this is where I point out that there are multiple definitions of racism at play in the world today. And so the two basic sides of this debate really aren't even talking about the same thing. Anyone who really cares about justice doesn't give much of a shit about what people intended, what's in their hearts, because that stuff doesn't matter. Only outcomes matter—harm matters. Actions are racist if they cause harm based on race, not because of intentions or the hate someone may have in their heart. But now with all the depth of insight of a sheltered 17 year old dude, Alito has decided that questioning racial harm is so offensive to those who claim to have [01:10:00] good or at least exclusively political and not racial intentions that we're just not allowed to make those accusations anymore.
SECTION A: DO FACTS MATTER?
JAY TOMLINSON - HOST, BEST OF THE LEFT: And now we'll continue with deeper dives on four topics.
Next up section a do facts matter. Section B policing medical care section C the Republican court. We've all waited for and section D. SCOTUS is a flawed system.
Who Gets to Lie Online - Amicus with Dhalia Lithwick - Air Date 3-16-24
DAHLIA LITHWICK - HOST, AMICUS: Okay, so let's talk about Murphy because I think it's largely been framed as a case about what's called jawboning, right?
This is the Biden administration. In some heavy handed ways and some much more chill ways, uh, telling social media platforms to remove content that's not true about COVID to, uh, take down things that are, you know, false and inflammatory, but it intersects absolutely with the interests of election workers.
[01:11:00] Why?
GOWRI RAMACHANDRAN: Even though false information about COVID and vaccines is really the focus of a lot of the plaintiffs arguments in this case, and the lower court orders in this case, a huge number of defendants were actually sued in this case, many agencies All across the federal government and included in that list was, uh, CISA, which is the Cybersecurity and Infrastructure Security Agency.
So this is an agency that was formed in the wake of the 2016 election, in fact, and whose job it is to assist state, local, and tribal officials with, uh, Cybersecurity response and really just protecting election infrastructure against interference. So it has a big impact on election workers that CISA was one of the defendants in this case because the original court order where the [01:12:00] plaintiffs won actually swept in groups like CISA and other elements of the federal government and enjoined them from talking to the social media companies with the purpose of, you know, them engaging in some content moderation under their own policies.
It enjoined that. for all kinds of speech. It wasn't restricted to just, you know, vaccine information. So what happened is that even though that court order has been stayed because the Supreme Court took up the case, it has really chilled government officials from sharing information with and being in touch with.
social media companies. So that means all the work that these agencies were doing in the run up to the 2020 election is not happening and certainly not at the kind of scale it was happening before. So that means notifying the social media companies when they become aware of a user on their platforms that [01:13:00] appears to be an agent of a foreign government and is spreading propaganda on the platform, right?
Senator Warner, in his role on the Intelligence Committee, he actually mentioned earlier this week that Since July, when that original district court order came down up until about two weeks ago, there had been zero communication between federal agencies that have this election expertise and security expertise, zero communication between those agencies and social media companies, which is a real problem.
He noted rightly that the CEO of Metta, Mark Zuckerberg, even said after the 2016 election, if there's You know, foreign agents on our platforms spreading misinformation tell us we want to do something about it. We voluntarily want to do something about it. So please tell us. And then that is what occurred after that, really, to credit the government.
They did it. They [01:14:00] formed a relationship with the social media companies and provided them this information. And then that communication stopped after this district court order, and it didn't even, it doesn't seem that it really restarted immediately after the order was stayed. So it does have a really big impact where we're actually getting less cooperation than we did in the run up to the 2020 election.
DAHLIA LITHWICK - HOST, AMICUS: And I'm going to just ask you the Captain Obvious follow up, but that is, it's not as if attempts at election interference have stopped, right? It's not as though, oh, it stopped because there's no foreign entities that are trying to influence elections, or there's no malefactors here in the US who are trying to Put election misinformation out there.
It stopped not because it's not needed, but because of just vast confusion about what can be said now. And so, you know, the larger point is, and you make this to the social media [01:15:00] entities here want to do this. They don't feel like they're being. Coerce, they feel like this is an essential piece of cooperation that has to happen.
The stopping of it is not in the interest of either party, right? The government who wants to be able to warn that bad election information is being disseminated and the platforms that want to warn their users.
GOWRI RAMACHANDRAN: Yeah, absolutely. It's not because the problem has gone away that this communication has ground to an almost halt.
So every. sort of threat assessment, intelligence assessment that has been publicly released since 2020 has indicated that the threat of attempted foreign interference in elections, including through sort of propaganda or disinformation or influence operations on social media platforms. is still there.
And specific countries are often named in those [01:16:00] federal intelligence assessments. And it makes sense, right? Because what we saw on January 6th, 2021 was really evidence, and the whole world saw it, that it's not that expensive to engage in, uh, influence operation. using various channels within the United States, including social media platforms, and actually cause major disruption.
That was a huge disruption on January 6th, right? It was an attempted interference with the peaceful transfer of power. And I actually like to say that when Congress was under assault that day, they were actually serving in their function as election officials. They actually have a election official sort of function to receive all those electoral votes and count them up, uh, on, uh, on that one day.
So they were really [01:17:00] being attacked because they were fulfilling that role of fairly counting all the votes and declaring the accurate winner and sort of fulfilling the will of the people. And so what, you know, I think that showed the whole world is that you don't need to hire a really sophisticated, you know, computer hacker to get into our voting machines.
You can cause a lot of disruption through these. influence operations. So by no means has that threat abated. If anything, there's all kinds of motivations for people to engage in that again. And unfortunately, as we also have seen in the wake of the 2020 election, there are a lot of elements Within the United States, domestic elements who are motivated to and have been engaging in the spread of false election information.
Fact Checking the Supreme Court Part 2 - 99% Invisible - Air Date 6-4-24
ROMAN MARS: In the 1980s, one man did try and proposed the Court do something about its fact problem. His [01:18:00] name was Kenneth Culp Davis.
ALLISON ORR LARSEN: Kenneth Culp Davis was a very famous law professor who taught administrative law. And Professor Davis’ view was we should have something sort of like the Congressional Research Service that helps the courts.
GABRIELLE BERBEY: Basically an entire research department to help the Court parse through all of these outside facts coming in through briefs and just general research. Kenneth went on speaking tours throughout the country, preaching the need for real change in how the Court educates itself.
FRED SCHAUER: We came out of a recognition that judges were looking at outside facts all the time and wanting to add some more discipline to that.
GABRIELLE BERBEY: [FIELD TAPE] What happened to Kenneth Culp Davis’ proposal?
FRED SCHAUER: Nothing.
GABRIELLE BERBEY: [FIELD TAPE] Why not?
FRED SCHAUER: Courts are [01:19:00] reluctant to sort of delegate their responsibilities to others. Judges are comfortable with their own knowledge–maybe too comfortable.
GABRIELLE BERBEY: Kenneth’s proposal didn’t get anywhere because the Court thought that any fact-checker would be too political–that no one could be objective enough to sort through and fact-check all the information that comes into the Court.
ROMAN MARS: It’s been about 50 years since the Court rejected Kenneth’s vision for reform. And the situation today is possibly even worse because we’re not just dealing with the issue of what is in the briefs. We’re also dealing with the problem of where those amicus briefs are coming from.
GABRIELLE BERBEY: The amicus briefs of today are no longer the quaint little letters we saw showing up after the Brandeis era. Now we have a certified amicus brief industrial complex. Lawyers today don’t just wait for experts [01:20:00] supporting their views to weigh in. They actively reach out to people or interest groups they want to write in. And they’ll dictate what precisely they want those amicus briefs to say.
ALLISON ORR LARSEN: We call it “amicus wrangler” and “amicus whisperer.” So, you need somebody who recruits. “You know what? It’d be great if we had a historian to say this. Oh, you know what? We should get the military leaders to say that.” And then you sort of coordinate the messaging so that the Supreme Court receives the information that you want the Supreme Court to receive from the people that you want endorsing those views.
GABRIELLE BERBEY: Those recruited amicus briefs might have good facts. They might not. They could be written in good faith. But, again, they might not. Either way, hundreds of these amicus briefs flood into the hands of law clerks who have no capacity and no system for fact-checking. And that is the information that the Supreme Court uses to make its decisions.
ALLISON ORR LARSEN: And it’s all a much more [01:21:00] orchestrated dance than people otherwise believed.
GABRIELLE BERBEY: It’s like Brandeis and the legal realists opened up the faucet to facts, and now we’re drowning in them.
ROMAN MARS: The result of the amicus brief industrial complex is that, in the worst case scenario, the side with more money can drum up more amicus briefs, and that gives them a huge advantage. And even in the best case scenario, there’s essentially an information deadlock. The Court has a ton of very convenient facts from both sides. And in the end, it’s up to the Justices and their chosen clerks to decide which facts to actually believe.
GABRIELLE BERBEY: The idea behind the Brandeis Brief was that if only the Justices could have access to all the background information they needed, they could make a rational decision. But more information doesn’t necessarily solve the problem.
ROMAN MARS: Because of this fire hose of information, there is always an amicus brief for the opinion that you already hold.
GABRIELLE BERBEY: What ends up happening today is that a bunch of parties send [01:22:00] in amicus briefs–some which inevitably contain errors–and the Justices end up cherry-picking the facts that align with what those Justices value most, which in the case of our current Court is very clear. They’re by and large obsessed with one thing.
SPEAKER 1: But then you look to history and tradition–
SPEAKER 2: You go right to history and tradition–
SPEAKER 3: If we’re looking at that history and tradition–
SPEAKER 4: And the relevant history and tradition exhaustively surveyed by this Court–
ROMAN MARS: The current Court has put a lot of emphasis on history and tradition.
ALLISON ORR LARSEN: And that means you have instructions from the Supreme Court to the lower courts, “Go ahead and review all of the history of, for example, firearm regulations in this jurisdiction. And come up with the history and tradition.” So, is that quest a factual one or a legal one or a little bit of both? I think that’s a really important question, and I think we’re just now beginning to wrestle with it.
ROMAN MARS: [01:23:00] This very specific, very consistent lens of history and tradition is what brings us back to the courthouse basement, where volunteers like Moms Demand Action have been looking for concealed carry laws in archives across the nation.
GABRIELLE BERBEY: Remember, the moms are trying to find evidence that the whole premise of the Court’s ruling in Bruen was just straight up factually wrong. And the Moms did find proof. Justice Thomas said that before 1900 concealed carry laws were not part of our history and tradition. And yet Jennifer Birch and the Moms Demand Action volunteers found a ton of these laws in archives all across the country.
ROMAN MARS: But here’s the thing–here’s the worst part. This information was sent to the Justices in Bruen. Historians had written amicus briefs to the Court, already pointing out that concealed carry bans existed in the 1800s. It’s just that you also had historians arguing the exact opposite. It’s not clear what information [01:24:00] was true or false in any of these briefs or even which ones reached the Justices. What is clear is that, out of all these briefs, the Justices made a choice about which pieces of information they took as fact.
ALLISON ORR LARSEN: So you had historians on one side and historians on the other. So, you had some historians saying, “Actually, there’s a long history and tradition of regulating the right to carry out in the open,” and then historians on the other side saying, “Nope, not at all. The right to bear arms has included the right to open carry, and the New York law in question is an outlier.” So, it ultimately was up to five Justices to decide which slate of historians they believed.
GABRIELLE BERBEY: [FIELD TAPE] So, the amicus briefs kind of became a battleground of who gets to say what history is?
ALLISON ORR LARSEN: Yes.
GABRIELLE BERBEY: [FIELD TAPE] So let’s say that the Justices do their factual research and then they get something wrong. They [01:25:00] cite a source that has incorrect information, but then that’s in the final decision. What happens when–let’s say–they do nothing?
FRED SCHAUER: Nothing. The short answer is nothing.
GABRIELLE BERBEY: [FIELD TAPE] But why? Why nothing?
FRED SCHAUER: I think it was Justice Jackson of this Supreme Court who said, “We are not final because we are infallible. We are infallible because we are final.”
GABRIELLE BERBEY: [FIELD TAPE] Yeah, that’s so hard for me to sit with.
FRED SCHAUER: Somebody’s got to have the last say, and very often judges have the last say. There are lots of things in the law and lots of things in the Constitution that we might now think of as politically or morally or even empirically wrong, but it’s there. [01:26:00] That’s what makes it authoritative. That’s when parents with some frequency say to their recalcitrant children, “Because I said so.” “Because I said so” is a big part of the law.
Who Gets to Lie Online Part 2 - Amicus with Dhalia Lithwick - Air Date 3-16-24
DAHLIA LITHWICK - HOST, AMICUS: So you mentioned that there was a district court injunction that was very sweeping, and then the Fifth Circuit, in hearing this case on appeal, rolled back some of that injunction, but again, very vague, very sweeping.
sweeping, widespread uncertainty, as you noted above, about how this is to be implemented and what kind of communication between federal agencies and local election officials could continue. And then there's this test. The federal government seems to have been ordered not to have, quote, consistent and consequential communications with social media.
Companies. I don't know what that means. Can you just talk a little bit about the [01:27:00] utter confusion of the current state of play? And you noted that the injunction was lifted over the dissents of Justices Thomas and Alito and Gorsuch, but the court is hearing a case. In some sense, it almost doesn't matter because the confusion on the ground is already operative, right?
GOWRI RAMACHANDRAN: Yeah, so I am hopeful that after the court hears the case, they can lend some clarity to the situation. Um, I don't think it will be possible for them to undo all of the damage that has been done and all of the chilling of both government agency and As you mentioned, independent researchers speech, it's really their speech that's being chilled.
And I don't think the Supreme Court will be able to undo all of that damage. But I do hope they'll be able to lend some clarity. So, you know, there's a lot of twists and turns to this case, as you mentioned, and that's been That's part of [01:28:00] what I'm sure has created the confusion and the apprehension on the part of people who are trying to correct the record on elections.
You know, initially there was this sweeping injunction. It even had an exception in it, actually, for communications related to foreign disinformation efforts. But if you think about it, if you're operating on the fly, it's hard to know when you see a post that says that a bunch of ballots are being thrown out in Maricopa County, it's hard to know where the person or the bot that is putting that online.
is located, right? And who are they answering to? Is that a foreign disinformation effort? Or is that a local, domestic disinformation effort? Or just a voter who's really confused and saw something that they didn't understand? So in real time, when these things are happening and propagating around the internet, An [01:29:00] order like that that says, Don't worry if it's foreign disinformation, you won't be violating a federal court order is not very comforting, you know, particularly to a researcher who says, Well, I can identify the disinformation I can identify this pattern of behavior, but I don't, you know, have the resources and certainly not at a in a speedy way to figure out if this is foreign disinformation effort or not.
So, we had this already when it started out, really difficult to apply district court order. Then the Fifth Circuit said, you know, some of the defendants that are subject to this really didn't engage in any coercion, so it doesn't make sense for them to be enjoined in this case. And actually, CISA was one of the defendants that initially, the Fifth Circuit said, there's nothing they've done that's coercive.
But then the Fifth Circuit in October essentially said, nevermind, the CISA is subject to this order. And they said the [01:30:00] reason was that CISA was essentially forwarding on reports from local and state election officials of problematic things they were seeing online about elections. And they said that in and of itself, Despite the concession, essentially that that's not coercive to tell people I saw something false on your platform, despite the fact that's not coercive, they held that that as a legal matter actually causes the social media platforms content moderation decisions to be state action.
Then we have the Supreme Court stay that says none of that stuff is in effect anyway while we're waiting, we're getting the briefing and we're having the case being argued. And so you can understand why it's a really just confusing and chilling situation for people that just want to correct the record and really play their part in making sure that if people are going to [01:31:00] go online looking for information about elections.
They're most likely to see the right thing.
DAHLIA LITHWICK - HOST, AMICUS: I'm hearing you say, and tell me if I'm reflecting back more than you're saying, that in a sense, this is scaling up just the general proposition that you don't need misinformation or disinformation. You just need these potent weapons of chilling speech. And so in confusion about who can be trusted, right?
In other words, this just feels like the sort of classic Hannah aren't, you know, it doesn't even matter if nobody trusts that election workers are being truthful and honest. If nobody trusts that the government warnings are truthful and honest. If we're in a moment where even though there's a stay, nobody.
feels comfortable doing their job to make sure that truthful speech prevails, then the [01:32:00] aggregate effect is more confusion and mayhem and mistrust in the entire election apparatus.
GOWRI RAMACHANDRAN: You're right that, you know, if entities successfully engage in this sort of multifaceted attack on people who are trying to spread the truth, that it can have the same kind of effect as actually winning this sort of lawsuit would have because the chilling effect can be so strong.
I am hopeful that some of this damage can be Reversed though, uh, one, because the Supreme Court may be able to bring some clarity to this case, some clarity to what are, you know, the guardrails around the government communicating with big tech, and then that's gonna clearly provide some guidance to independent researchers and members of civil society as well.
I'm also hopeful that the You know, as this issue is brought to light [01:33:00] more, as folks like Senator Warner are bringing to light the fact that this communication has ground to a virtual halt, that maybe some of the lawyers who tend to be a very cautious profession, We'll see that there's downsides to being overly cautious, especially when your mission is to really, or part of your mission is to help the public and to do what is most beneficial for the safety, security, you know, of our free and fair elections.
I hope that calling some attention to this chilling effect will motivate some of the attorneys who are probably giving some really cautious advice to their clients, you know, agencies in the federal government, motivate them to see, uh, the costs of being overly Cautious and really help them highlight things like the exception in the district court order for communications about foreign disinformation or for that matter, communications [01:34:00] that are criminal, like criminal threats that are being made online and also help them really take, you know, whatever guidance we got from the Supreme Court in this case and apply it in a Thank you.
Pro democracy manner.
Fact Checking the Supreme Court Part 3 - 99% Invisible - Air Date 6-4-24
ROMAN MARS: Nearly 50 years after the Brandeis Brief, the issue of segregation reached the Supreme Court. As part of the case, the Justices set aside what they assumed about the world and read as much as they could about the psychological impact of segregation. And now, thanks in part to that outside information, segregation is unconstitutional.
GABRIELLE BERBEY: Or in Roe versus Wade, where Justice Blackman holed himself up in the Mayo Clinic Library in Minnesota to read everything he could about the medical science of abortions. None of that would’ve happened before Brandeis and the legal realists stepped in.
ROMAN MARS: There’s no arguing with the fact that the Brandeis brief changed the game. It also did exactly what Brandeis hoped it would. The Brief let progressive [01:35:00] lawyers pull a whole wealth of information into the courtroom so they could keep social reform moving forward.
GABRIELLE BERBEY: Which seems like a good thing. In a way, it does make sense to bring the Justices down to earth from their high-minded, lofty legal theories. The realists thought they’d created a world where judges would learn the real facts on the ground and make better legal decisions because of it. But when the rubber hit the road, things went a lot differently than they imagined.
ALLISON ORR LARSEN: And you wonder, “Do we want the Justices just burying their heads in the sand and not thinking about the context of the decisions–the decisions they make that are going to affect millions of people?” No, I don’t think that’s a better world at all. But there’s other things to consider in terms of who is telling them what and for what purpose.
GABRIELLE BERBEY: Here’s the thing though. The Brandeis Brief was–at its core–a tool. The progressives weren’t the only ones who could wield [01:36:00] it. While the reformers were out celebrating wins like Brown v. Board and Roe v. Wade, they had set in motion a change that would eventually derail some of their biggest wins.
ROMAN MARS: And at the center of that change was a thing called an “amicus curiae brief” or “amicus brief” for short.
ALLISON ORR LARSEN: It stands for “friend of the court.” It’s a Latin phrase.
ROMAN MARS: You’ll also hear these referred to as “amicus briefs,” which is also right.
GABRIELLE BERBEY: These are briefs that are typically written by people or organizations who don’t have any role to play in the case. They’re not lawyers for either side. They just have an opinion about how the judges should rule and why. So, they write an amicus brief saying how they think the case should go.
ROMAN MARS: Amicus briefs are pretty benign in theory. The idea is that they give perspective, research, or context about an upcoming case. Unlike regular briefs where the lawyers in the case write in, these are written by people outside the case. [01:37:00] Anyone–any member of the public–any organization can submit these briefs. All you need is a lawyer registered with the Supreme Court Bar to help you file.
ALLISON ORR LARSEN: The ones I think that are the most influential on the Court are briefs that add facts–expertise that they might not get from the record below or from the party briefing.
ROMAN MARS: In a way, amicus briefs are exactly what legal realists like Brandeis wanted. They’re a means of getting information from the real world into the courtroom.
GABRIELLE BERBEY: Amicus briefs flowed into all the big cases of the 20th century–Roe v. Wade Bush v. Gore–and slowly, over the decades, they became a fixture of the courtroom. Then in 2003 came a case that pushed the amicus brief past its humble origins and into the spotlight.
ARCHIVE: The opinion of the court number 02241, Grutter against Bollinger, will be announced by Justice O’Connor.
ROMAN MARS: The case was a challenge to affirmative action at the University of [01:38:00] Michigan. And as part of the case, amicus briefs poured in from interested parties. The Justices heard the case, they read the briefs, and they made a ruling, in this case, upholding affirmative action. But here’s where the game starts to change.
GABRIELLE BERBEY: When Justice O’Connor delivered her opinion in the case, explaining why the Court cited the way it did, she mentioned one specific amicus brief that the Court had received. It was submitted by members of the military in support of affirmative action.
JUSTICE OCONNOR: High-ranking, retired officers and civilian military leaders assert that a highly qualified racially diverse officer corps, drawn in large part from college ROTC programs, is essential to our nation’s security.
GABRIELLE BERBEY: This was a big deal. For the first time, Justices were showing that not only do they read these briefs, amicus briefs actually play a big role in helping them make decisions–so much so that they’ll cite them in their [01:39:00] opinion announcements. At the time, this military brief actually helped save affirmative action.
ROMAN MARS: When Justice O’Connor referenced specific amicus briefs in an official Court decision, it sends a clear message: if your side sends the right amicus brief, that could decide the case.
ALLISON ORR LARSEN: So it was in many ways a debutante moment–a coming out party–for the power of amicus briefs, I think, that led members of the bar to realize, “You know what? We really have a chance of influencing the Court’s decision here. And we need to think strategically about who we get to say what.” So, there’s just a dramatic uptick–a dramatic growth spurt–of amicus briefs.
ROMAN MARS: It became clear very quickly that amicus briefs were powerful. But in the words of Spider-Man’s late, great Uncle Ben, “Power is a hell of a drug.”
GABRIELLE BERBEY: [01:40:00] If amicus briefs started out as tools for Justices to help them understand facts about our world, they were now essentially weapons for both sides of a case. And the fact that amicus briefs were now an integral part of the Court highlighted one tiny, little design flaw–namely that there is absolutely no mechanism in place for making sure that anything in those briefs is actually true.
ROMAN MARS: The dirty secret here is that the Supreme Court doesn’t have any fact-checking mechanism for amicus briefs. None. There’s no fact-checking for anything that the judges read to decide their cases. To be clear, there’s a fact-checker for this podcast right now; these words right here are being fact-checked. Hey Graham. And yet for the highest court in the land–the Court making decisions that changed the course of millions of lives–nothing.
SECTION B: POLICING MEDICAL CARE
JAY TOMLINSON - HOST, BEST OF THE LEFT: Now entering section B policing medical care.
Will SCOTUS Slam the Door Shut on Pregnant ER Patients - BOOM! Lawyered - Air Date 4-24-24
IMANI GANDI - CO-HOST, BOOM! LAWYERED: What a day. Today was, I found it confusing. I'm not gonna lie. I was a little bit [01:41:00] like confused because the tenor of the arguments to me, it seemed like Only the women wanted to talk about what this case is really about. And I remember when I was thinking about, um, what our podcasts around this case would be like, and I said something to you about the spending clause, and I remember you said to me, you were like, Imani, we are not spending any significant time talking about the spending clause.
And what did the men do today? They spent a significant amount of time. Talking about the spending clause as opposed to the actual catastrophe that will occur if they say to ER doctors in abortion hostile states like Idaho and Texas. Yeah, no. Abortion is not a mandated stabilizing treatment. Ever.
Abortion is not healthcare. Ever.
JESSICA MASON PIEKLO - CO-HOST, BOOM! LAWYERED: Right, right. And I did tell Imani that we should not pay any attention to the spending clause arguments because it wasn't a significant part of the underlying litigation. It was barely briefed at the Supreme Court. Idaho [01:42:00] just kind of sua sponte with the help of some other states.
Look at you with the sua sponte. I mean, I may be turning 50, but I still have a couple sua spontes up my sleeve. But no, Idaho and states just kind of on their own raised it at the stage of the litigation, which also smacks a little bit of the Dobbs strategy, right? Like, say, hey, hey, hey, just uphold Mississippi's 15 week ban under the Roe and Casey framework.
Actually, just kidding, reverse it all, right? So like, there's some shenanigans there, but I think To your point, the mostly men wanted to talk about the spending clause because it avoids the reality that Solicitor General Preligar and the women justices on the court refused to ignore. And that is the fact that patients are being airlifted out of Idaho, um, that this is a situation that will only get worse.
And you can't in good faith say, well, [01:43:00] no, actually we can comply with the law. Wink wink. Right. Like it's bad. It's bad. And I want to talk about
IMANI GANDI - CO-HOST, BOOM! LAWYERED: that because, okay, the spending clause, it basically, it's an argument about about legislation that is enacted pursuant to Congress's spending power. And the argument for this spending clause claim is that EMTALA is not entitled to preemptive effect because it was enacted pursuant to Congress's spending clause.
And the response to that is, so what? Yeah, like the supremacy clause applies irrespective of the powers that Congress used to pass certain legislation, whether it's enumerated powers, whether it's spending power, it doesn't matter. Right. The supremacy clause says that federal law reigns supreme. There's no carve out.
For spending cost statutes, right? Right. And so if the federal government is going to give you money is going to give a Medicare funded hospital money, it is perfectly within its right to attach conditions [01:44:00] to the receipt of that money. And one of the conditions for under EMTALA is If a patient walks in and they have an emergency condition, you got to screen them.
If they, if, if their emergency condition is going to cause their health to deteriorate, you got to provide stabilizing treatment. The issue here is, is an abortion ever stabilizing treatment? And according to Idaho, the answer is basically no, not really. And that's just the callousness with which he was making, uh, Attorney General Turner was making these arguments on behalf of Idaho is, I found it shocking.
For example, Sonia Sotomayor was just firing hypotheticals off about various catastrophic pregnancies. Yes. And she said, essentially, I'm paraphrasing, pregnant patients will present with a serious medical emergency. Condition that doctors in good faith can't say will lead to death, but will present a potential loss of an organ or serious medical complications.
Those doctors can't perform abortions in those [01:45:00] scenarios. Is that what you're saying? And Turner's response was basically. No, those abortions cannot be performed. And at first he tried to pretend like he was a doctor and had some knowledge about what sorts of catastrophic abortion situations might occur.
He says, you know, well, if that hypothetical exists, then yes, Idaho law says that abortions are not allowed. How is, I find that so just craven that I struggle to understand how you can get up in court and make that argument.
JESSICA MASON PIEKLO - CO-HOST, BOOM! LAWYERED: Yeah, I mean, as I said to you in Slack, um, as we were finishing up arguments, the fact that we're even here having a debate about how sick a patient needs to be before a state is required to step in and provide some kind of medical treatment means we've already lost.
We've already lost. And the Supremacy Clause argument just becomes a cover for the fact that what Idaho and the [01:46:00] conservative legal movement is fine with happening is pregnant patients becoming disabled, losing future fertility, having all sorts of a parade of medical conditions that do not equal death, but will not provide them access to abortion care.
So, you know, pregnancy is risky. Abortion is a lot safer. Conservatives said with their whole chest today, they're fine with pregnancy becoming a mass disabling event in this country if it means that there are no abortions available.
IMANI GANDI - CO-HOST, BOOM! LAWYERED: That is grim. That's grim. One thing I really did love about, uh, Prelogar's, her presentation was the way in which she made the point that what Idaho is doing is patient dumping of another kind.
Yes. Because EMTALA, the purpose [01:47:00] behind EMTALA was to prevent federally funded hospitals from tossing indigent patients out into the street or transferring them to another hospital where, you know, they think if they think that they're not going to be able to get any reimbursement for the money that they spend treating people.
And then Tala says, you can't do that. Right. So what is Idaho doing? They may not be dumping indigent patients, but they sure are dumping pregnant patients. Pregnant patients in emergency crises, they have no problem dumping them. They're air lifting. I mean, how many times did a solicitor general prelogar say that they're air lifting patients out of Idaho?
That's patient dumping. And I really appreciate that. She made that point.
JESSICA MASON PIEKLO - CO-HOST, BOOM! LAWYERED: Absolutely. And I just think she was prepared. For the worst of the bad faith arguments by the anti choice conservatives on the bench here. She was really masterful in that. I mean, she was really masterful in detailing the medical conditions at stake here in respect.
to this idea [01:48:00] that M Tala is serving as some sort of widespread abortion mandate, right? Creating federal enclaves of abortion care. If only we could get federal enclaves of abortion care anywhere, right? Right. That would be a significant improvement in what we are. But she just was very well prepared to handle that, whether it was coming from Justice Alito, whether it was coming from Justice Roberts, even in her back and forth with Justice Barrett, who, you know, sometimes seemed to be saying, excuse me, what, to the reach of Idaho's argument.
I don't think that Barrett's ever going to be on our side here. Right. Um, and we saw that in the way with her and, um, preligars. Uh, back and forth
Elie Mystal on Why You Don't Need to Like SCOTUS Anymore Part 1 - Boom! Lawyered - Air Date 4-12-24
IMANI GANDI - CO-HOST, BOOM! LAWYERED: They looked at these arguments and I want to read a quote that, uh, Madiba Denny, you know, she writes for, uh, balls and strikes.
She just has a new book out about originalism. Um, I don't know if it's out or. Out yet or not, but, um, she's I blurbed it. So I already read it. It's good. Okay, she's brilliant. I'm looking forward to reading it. Um, but she's strong. [01:49:00] She summed up the case this way, quote, like the losers who ask if I were the last man on earth, then could I go out with you?
These medical professionals are asking if I were the last doctor on earth, then could I force you to give birth? And that's really ultimately what I, what the case is about for me, right? The small cabal of Christian doctors and dentists who say they are being forced to complete abortions, despite the federal law conscience protections that are available to them, and that say they don't have to perform abortions.
And it just seems to me that. You know, one of the things that Aaron Hawley, who's Josh Hawley's wife, Josh Hawley of the Insurrectionist Hawleys, who, by the way, I will always, I will always point out is the only Republican on the Senate Judiciary Committee who has not been given money by Harlan Crow.
Like, he's so odious. That not even a Nazi memorabilia enthusiast is willing to give that man any money. So I just think that that's important to note, but Aaron, [01:50:00] I like marble
ELIE MYSTAL: Nazis, not, not living ones.
IMANI GANDI - CO-HOST, BOOM! LAWYERED: And so, you know, Aaron Hawley kept pointing out that these doctors are so harried and stressed out and they're being asked to scrub in to perform these abortions against their conscience.
And they don't have time to go up to the 14th floor and, you know, talk to the hospital administrators and lawyers to find out what their protections are. And that just seems like a case of that's too bad, right? Like the rules are in place for you to use them. And if you are a doctor, an ER doctor, you don't want to help people, you don't want to do your job, then the law says you can go ask for conscience protection.
The law doesn't say get together with a bunch of other jamokes and then file a lawsuit saying that you don't want to do your goddamn job. And so, I mean, am I wrong? In A, my assessment that the case isn't going to be as bad as we think it is and that you and I are on that same page and that people like Amy Coney Barrett and Neil Gorsuch just seemed like, what are we doing here with these jackasses and their ridiculous standing arguments?
ELIE MYSTAL: Yeah, look, there's so many things wrong with that case, [01:51:00] but yes, we're on the same page, and I'll start at the beginning, I agree with you, it's always important to point out, just because you never know who's going to be listening to these shows, ladies, if you are going to your dentist for reproductive healthcare, somebody has told you a lie!
That's not how it works! Just straight up. All right. So with that said, um, when you let's, let's start with, with where you started this idea that Aaron Hawley was pushing that the real problem with these doctors and dentists who never prescribed the abortion pill, never had an abortion, never had a medical abortion and have nothing to do with their case.
Aaron Hawley's argument is that sometimes they have to scrub in to the emergency room to go treat people who are suffering what she called Complications from the abortion pill. That is A. Not true. There are not complications from the abortion pill in the way that Aaron Hawley was mentioning it. B. To the extent that you have to scrub in to the [01:52:00] emergency room to, quote, perform an abortion.
That's because a woman is dying! That's because a woman is about to die! And you, as the doctor, are needed to provide medical care to a dying person! If you've got a problem with that, you need to get your ass out of the medical profession entirely and go start a seminary.
IMANI GANDI - CO-HOST, BOOM! LAWYERED: Well, if I may, if I may play devil's advocate for a moment, because this is one of the things that I've been focusing on in the last couple of weeks.
There is a lot of daylight between what federal law requires, which is stabilizing treatment if a person's health is deteriorating, right? If the person's health is in serious jeopardy, you give them the abortion. Versus state law, like Idaho's law, which says you gotta be on death's door. Before we're going to give you the, an abortion, right?
It's the difference between state law saying abortion only protect the life of the pregnant person and federal law saying you get an abortion [01:53:00] to protect the health of a pregnant person. So I think what these doctors are saying is that there are these pregnant women, pregnant people who are coming into emergency rooms.
who don't really have emergency, they just feel some kind of way about their pregnancy. And so they're going in at the last minute and saying, Hey man, I kind of need an abortion right now. Can you help me out? And that's not how it's happening. But even if it were, even if there were a case, Where there is an abortion that might be needed to save the health, but if they didn't get the abortion, they wouldn't necessarily die.
How is it that that's where we're living? How is it that we are living in that gray area with these anti choice doctors and dentists saying, well, we don't want to have to make a quick judgment as to whether or not the abortion is needed to keep the person from dying. Versus to keep the person from having their health in serious jeopardy.
Why are we having that conversation?
ELIE MYSTAL: And it's also, as you point out, you already have a conscientious objection protection, right? So if you don't want to perform the abortion, don't, if you think that there's a, if you [01:54:00] think that it's a gray area and you're the kind of person who looks for gray areas to find a way to not give pregnant people medical care.
If you want to think there's a gray area, you don't have to scrim in there. There are, there are literally laws in place that PR that protect you. As the doctor from performing procedures that you do not morally feel are valid. So again, get your ass gone from the hospital and let somebody who's willing to help step in scrub in in your place.
That's the that's the rule already in place. You don't have to take away the entire abortion bill to protect your conscientious bigotry. In any event, as you pointed out, the Supreme Court didn't seem to go for it, and, and it really started with Neil Gorsuch, who, again, no fan of women, no fan of abortion rights, but just couldn't, couldn't deal with the standing issue.
Right. There's a really good reason why Neil Gorsuch can't deal with the standing issue. Because Neil Gorsuch understands that if you accept the standing issue here, then you have to accept the standing issue in a whole lot of [01:55:00] cases that Neil Gorsuch doesn't think you should have standing on. Right? The environmental standing issue, for instance, that Neil Gorsuch specifically brought up.
This is the James Ho, um, Doctors have standing because pregnant people are like wildlife and there are people who enjoy seeing just their round bellies and their glowing visages and they're deprived of the roundness of the belly. If, uh, people take I mean, this is Hozart, I'm not making this up. No, he's that's actually the argument.
This is the actual argument. So, Neil Gorsuch brought that up, and he was like, I don't agree with that! I think that's stupid. And of course, he thinks it's stupid because that argument has been used in the past not to control the bodies of women, but to Protect wildlife, right? It's a way that you stop polluters.
You say like, Hey, I like going to this national park. And when you dump oil all over it, you ruin my quote, aesthetic, you know, uh, uh, benefits. And that's an argument to sue [01:56:00] polluters. So Neil Dorsett doesn't want you to sue polluters. Right? He wants you to be able, he wants polluters to be able to destroy the environment, and if that means some pregnant people and or manatees have to be allowed to, you know, do what's necessary to protect their health, Neil Gorsuch is fine with that, right?
So, he was very against the standing argument. The, the real difficulty was Amy Coney Barrett to me. I mean, it was, I would say it was funny in this kind of macabre, gallows humor way. Because she's so Desperately wants to ban the abortion bill, right? You can hear it in her voice. She thinks it's wrong. She wants to get rid of it.
She couldn't get, she couldn't get over the standard. She kept coming back to the standing issue, just trying to find a way. And the Aaron Hawley couldn't get her there. Could just couldn't get her there. And every time Aaron Hawley slipped up. Oh, man, the, the. The best. I listened to the whole hour and a half of the argument.
Um, as I know you did listening to all four of the Supreme Court women [01:57:00] just dunk on Aaron Hawley was like life giving. It was like, it was always flipped up. Kagan, Jackson, so they were just on her ass like white on rice. It was, it was really nice to, to listen to, um, just, just to, just to deal with that ridiculousness.
So yeah, I don't think that Mephriston is going to be banned.
The IVF Decision We Should Have Seen Coming Part 2 - Amicus With Dahlia Litchwick - Air Date 3-2-24
DAHLIA LITHWICK - HOST, AMICUS: This IVF conversation is not the problem. It's a manifestation of a problem that is sprawling that you and professor Roberts have written about for years. And I just want to be very. clear that one of the reasons we wanted you on the show is because the category error we made for years after Roe was talking about this as an abortion problem, we're falling into the adjacent category error of now having a conversation about IVF.
And you were always critical of the laser focus of groups like Planned Parenthood, who who were so focused on abortion that they [01:58:00] missed the trees, we're about to do the same thing. We're certainly doing it in the press around Alabama and IVF.
DR. MICHELE GOODWIN: That's right. Well, you know, as I've said for many years, that rights is a plural.
And yet the reproductive rights movement for decades basically had its eye on abortion and not on what would be all of the other spokes on the wheel that would convey rights. And just by comparison, if you think about the civil rights movement, what the people involved in it were so deeply concerned about was not just Brown v.
Board of Education. They didn't just sort of wipe their hands and say, Okay, Okay. Now we've reached the motherland. We don't have to care about employment and housing and accommodations and whether you can actually walk through the park in your neighborhood or swim in the pool in your neighborhood, all the myriad satellites.
We knew that civil rights [01:59:00] contained all of that. That was, it was deeply understood. And so we're talking about from the start, a flaw, a flaw in, in, uh, Conveying and conflating rights with just about abortion, and your point is well taken in terms of the wake of Alabama, this sense that, okay, now this is all about IVF, rather than the broader satellite of so many issues, the basic understanding, contraception, sex education, employment, et Economics, you know, it's interesting to think about the midterm elections and this sense that it was going to be this Republican tidal wave and that no one was thinking about abortion and it's about the economy, it's about gas prices, as if women don't buy gas.
As if women don't have to pick up the kids, pick up their parents, be a caregivers to others, commute all around town, as if women aren't concerned about economics, whether they are in a marital relationship, or they're single [02:00:00] and having to think about how do you make ends meet? How do you put food on the table?
How do you do all of these kinds of things? And then how do Keep yourself from being policed by child welfare services if you somehow slip and don't do it well and are thought of being negligent towards your kids because they don't have the newest clothes or shoes or because they don't have adequate funds for lunch money and all of these things.
Of course, women are thinking about these matters and what black women understood Good. And have intergenerationally for centuries, because let's be clear, what's been on the minds of people very recently pales in comparison to how long, how long Black women and Indigenous women have had to be confronted with these questions about family and reproduction.
From the very start and understanding that laws measuring [02:01:00] surveilling their reproduction were not matters that were new, but the very foundations of American law, which so many people don't really understand, and even in law schools, they don't grapple with. But the very first laws of the United States determining and How parenting would come about, that there would be this thing called matrilineity, that children would inherit the status of their mothers, and from the very start, a campaign that would say, you inherit the status of your mother, meaning that it doesn't matter who your father is, if your mom is an enslaved black woman, That will be your future.
It doesn't matter if your father is the owner of the plantation or owner of plantations. It doesn't matter if he's, you know, the owner of the big business of the railroad or any of those things, you will forever be fastened to her status. And then what that means in its real application, which was so denied, ridiculously denied, in the way in which we've addressed reproduction, and that is to say, [02:02:00] Thomas Jefferson famously wrote about on his plantation, he preferred for there to be women and girls rather than men because he said they were turning a profit every year or two.
And Dahlia, as we know, Thomas Jefferson was not talking about, Oh, black girls just pick cotton at a more feverish rate than do black boys and black men. He wasn't talking about black women are better with rice and sugar cane than it would be black men. He wasn't talking about, Oh, they're just so sturdy in how they handle tobacco.
Thomas Jefferson was conveying to other politicians and other planters in writing, which you can find at the Monticello website. He was conveying this as a means to show that forced reproduction imposed on black women and girls was something that was profitable and that would render profit to people who would follow this advice that he was giving.
But he was not alone. We see these histories written everywhere. out in the advertisements of the [02:03:00] 1700s and the 1800s, and there they are, you know, when people are advertising unabashedly to sell their breeding wenches who are 12 and 13 years old. Well, what makes someone a breeding wench? How does she get to be a breeding wench at 12 and 13 years old?
when they're advertising for the return of The breeding wench who was 14 that escaped with her two year old daughter, Maria, who's mulatto. What does that mean? Our failure to understand and piece together, here is this history that is telling us so much about the lengths to which people will go in order to exert power, in order to capitalize off of the reproduction or lack of power, associated with reproduction of the most vulnerable in our society.
And I just wanted to share that to give more context so that we're not just navel gazing at the matters of the moment, but that rather to [02:04:00] understand a legal history that dates back centuries. And to understand then the social and cultural milieus and practices that allowed those legal histories to maintain and persist over time.
Will SCOTUS Slam the Door Shut on Pregnant ER Patients Part 2 - BOOM! Lawyered - Air Date 4-24-24
IMANI GANDI - CO-HOST, BOOM! LAWYERED: Can we talk about Sam Alito? Just like Do we have to? I mean, I know we have to, but yes, we have to. First of all, you know, going back to the spending clause, he was nitpicking the spending clause. Like he'd never even heard of it before. Like at one point he literally just sort of threw up his hand and says, I don't understand the theory.
After you said on Twitter that the solicitor general went all schoolhouse rock on him. Like she explained to him what the spending clause is. And this dude just was like, I don't understand the theory and then wanted to move on to something else. And what was that? Something else? Personhood. Fetal personhood.
Fetal personhood. The Amtala Statute. Talks about a quote unborn child. It talks about a pregnant woman or her unborn child. If a pregnant woman walks into an emergency [02:05:00] room, they may not be having a personal crisis or a health crisis that is going to affect their health. But their unborn child, for example, I believe one of the examples was a prolapsed umbilical cord, for example, that threatens the health of the quote unborn child, but not the health of the person.
That's why that language is in there. It's. to protect the patient who wants to be able to go into a, into an emergency and know that their health is going to be taken care of and the health of their quote, unborn child is going to be taken care of. But Alito seems to think that because the phrase unborn child Appears in the statute that the statute somehow embraces personhood.
Yeah. Doesn't that tell us something? That's what he asked. Doesn't that tell us something that the, that the phrase unborn child is used? What does that tell us, Jess?
JESSICA MASON PIEKLO - CO-HOST, BOOM! LAWYERED: It tell us that Sam Alito is a jamoke and a political operative on the court who is paving the way for a future personhood argument to be made directly to [02:06:00] these conservatives.
Because yeah, Emtala does have the phrase unborn child in it. It also has the phrase active labor in case. Justice Alito was concerned. And as the Solicitor General made very clear, this is where medical standards of care come in and direct what happens to a patient in emergency situations, right? And I think this point is, is so important.
If a patient comes in and they are presenting with an emergency, And their pregnancy happens to be beyond the point of fetal viability, then the standard of care is to induce labor, right? Like this is not abortion up to the point of birth, which is the point that Sam Alito is trying to make also, right?
Like that point was very clear. And then absolutely laying breadcrumbs for the conservative legal movement in terms of how to define a fetus as an [02:07:00] individual under, say, for example, the Dictionary act, which I literally almost had my head explode in that exchange as a way to square with other lots, right?
And other statutes. So there's that. And then there was also that weird hypothetical that Amy Coney Barrett offered up with a patient. who would need abortion care at 15 weeks, which I felt was a really big tell as well, as that's currently the public facing position of, uh, conservative and Republican operatives on a national abortion ban, that this is the reasonable position.
Well, you know, Amy Coney Barrett just floated that trial balloon in the middle of these arguments as well. And I mean, Preligar was just. Such a professional, right? She's like, no, if Congress wanted to expand protections explicitly to say you always treat the developing pregnancy no matter what, they would have named the fetus as an individual and they didn't.
Like, can we move on here? But Sam would not move on.
IMANI GANDI - CO-HOST, BOOM! LAWYERED: You would not move on. [02:08:00] I mean, it's just, I, it, I can imagine that he feels emasculated intellectually by Prelogar. I mean, it just, in all of their interactions across cases, he, it seems like he's like, yeah, yeah, put me in coach, put me in coach. I'm going to get her this time.
And then he says some ridiculous shit and she always has a very calm, a very measured, a very smart response.
JESSICA MASON PIEKLO - CO-HOST, BOOM! LAWYERED: Right, right. And like the Idaho attorney general, what a sleeper. Right. Of an argument like that. He I mean snooze zero charisma. Not that I want this to be like all razzle dazzle necessarily, but man, and I mean I don't know.
I just I felt like In general the personhood argument. We knew it was gonna come up But it's not like it just came up once, right? Sam Alito went back to it again. And each time he went back to it after getting pretty severely [02:09:00] intellectually smacked around by Preligar on constitutional principles. Yeah,
IMANI GANDI - CO-HOST, BOOM! LAWYERED: yeah.
And I do want to point out, not to keep going back to this unborn child thing, but you know, the Attorney General for Idaho, uh, said, you know, well, wouldn't it have been weird for Congress to amend this statute to require care for the unborn child, regardless of what's going on with the mother, it would be weird.
He kept saying weird for Congress who have regard for the unborn child, but then mandate termination of the unborn child. And preloger nailed her response in that Congress wanted to make sure that if a pregnant person presented with a problem with her unborn born child, then that care would be provided to her.
And or her unborn child, depending on who needed the care, but the care offered to the quote unborn child flows through the person carrying it, right? It flows through the pregnant person, right? It's a pregnant person who decides whether or not to terminate the fetus doesn't get to like Punch an arm through the stomach and like put a thumbs up or a thumbs down, [02:10:00] but that's just not how it works, and I find it so frustrating, and it seemed like the Solicitor General did too, because she kept making that point over and over because these ding dongs on the bench either didn't get it or were willfully being obtuse, and it's probably the latter.
SECTION C: THE REPUBLICAN COURT WE’VE ALL WAITED FOR
JAY TOMLINSON - HOST, BEST OF THE LEFT: You've reached section C the Republican court we've all waited for.
Way Too Close Insane SCOTUS Case Could've Sunk The Country w Mark Joseph Stern Part 2 - The Majority Report - Air Date 5-26-24
SAM SEDER - HOST, THE MAJORITY REPORT: Well, I
MARK JOSEPH STERN - WRITER, SLATE: just wanted to briefly sort of wrap on the CFPB thing if I can, because I think that's a really good point. So like the what happens is it's these payday lenders who are challenging the CFPB because they want to um, Put these extortionist loans out and collect all this interest and screw people over.
So the housing industry, which is like not a bleeding hard industry, let's be clear, like housing, housing people and bankers come into the Supreme Court and they're like, Hey, we also don't really like the CFPB because sometimes it like finds us. But we just want to let you know that CFPB and they told us to the Fifth Circuit to with the Fifth Circuit didn't care.
The CFPB actually provides what we call safe harbor protections for housing lenders and builders. [02:11:00] So if you sort of follow these basic rules and you are sued, uh, and you're a housing lender, you can rely on the CFPBs protection to fight away that lawsuit to fight over legal liability. If that is taken away, which is what would happen if the CFPB is struck down, lenders would not lend anymore.
Okay? Because they would be subject to Endless litigation and liability for anything they do across all 50 states. There would be no federal umbrella protection. Lenders would stop lending, which means that builders would stop building, which means that both the loan and construction part of the housing industry would dry up entirely.
The banking industry, of course, relies on that aspect of lending to keep its own assets going. So the banking industry would likely tip over into a collapse like 2008, which would set off almost certainly a global recession. This is not hypothetical. This is one of the key features of the CFPB that we don't talk about enough.
It wasn't just protecting consumers from payday lenders and all that stuff. It was [02:12:00] shoring up the industry so that it could have a set of rules that would prevent a collapse like Oh eight. And so if Sam Alito and Neil Gorsuch, who are the two dissenters in this case, If they had gotten their way, if they had destroyed the CFPB, we would not be having a conversation right now.
We would be running to our banks to withdraw as much money as possible to stash under our beds because this case was quite literally a direct challenge to America's ability to maintain a functioning economy in 2024.
SAM SEDER - HOST, THE MAJORITY REPORT: Uh, it's a good lesson too. If, uh, if you have a cousin or a little brother who is a libertarian, Ask them how we work that out, uh, between our own separate private judiciaries, uh, that would, uh, deal with.
Um, uh, you know, lawsuits against lenders in that instance, but all right, so let's move to, uh, Louisiana, this, um, this, uh, case was about, um, and [02:13:00] you know, it really makes you think like maybe there should be some type of thing like called preclearance. It's with a voting rights act, uh, where maybe, uh, people couldn't mess around with, uh, gerrymandering and what, but, um, putting that aside, uh, this is, um, there was back in 2022, a, um, an Obama appointee, um, for the district court of the middle district of Louisiana.
Uh, there was an illegal racial gerrymander. And so, uh, this is that's where we were in 2022. Um, uh, black voters in, uh, uh, Louisiana make up something like, um, uh, was a 40 percent of voters. And, uh, there was only one out of six or one out of, um, uh, congressional, uh, districts where they were a majority. So they were clearly.
Something was going on there that [02:14:00] diminished, um, black people's voting power.
MARK JOSEPH STERN - WRITER, SLATE: So, so right. And so the Supreme Court famously then issued that decision last term that sort of revived the Voting Rights Act and said, actually racial gerrymandering is still bad. And so the district court judge there was vindicated.
And the Louisiana legislature was ordered to redraw its map. So the Louisiana legislature draws a map with a second district that has a near majority of black people. So now you have a map that looks, you know, significantly more like the racial breakdown of the state. You've got two districts that are likely to elect black representatives.
So what happens then? Well, A group of conservatives then go to court and say this new map, which is ostensibly fairer and compliant with the Voting Rights Act, is actually unconstitutional under the equal protection clause because the new district is just too black. There are too many black people receiving too much representation in this new district.
So we think it has to be [02:15:00] struck down. They are lucky enough to draw a court and We don't have to get into the details, but it's actually a three judge court that two of the judges are trump appointees and the two trump appointees are essentially trolling the Supreme Court here. They step in and they strike down the mouth and they say, you know what?
This is just too much power for black voters. We can't accept this. This is a race based redistricting decision. And so even though we're less than a year out from the Supreme Court saying that these kind of districts are actually required by federal law, it's We're going to say that this one is unconstitutional, and everybody scrambles up to the Supreme Court to get an answer because, of course, elections in Louisiana are not that far away, and they sort of need to know what maps they're going to be using.
SAM SEDER - HOST, THE MAJORITY REPORT: Now, my understanding is that part of the argument, and there was an Alabama case, right, that had basically made, supposedly made this moot on some level, um, that the Supreme Court had issued on. But my understanding is, is that the, um, The the plaintiffs here were [02:16:00] arguing that the the districts were not compact enough that one of the one of the one of the elements of redistricting is sort of just like a general principle is that you want the districts to be as as compact as possible as opposed to I guess there's one in Louisiana that sort of like.
Is a thin one that runs almost like the entire length of the state in the middle, almost like it was like a spine in some way. Um, and that's, was their basis of their argument. And that, um, it, In shooting that down, the Supreme Court is opening the door for other types of like sort of gerrymander hijinks.
MARK JOSEPH STERN - WRITER, SLATE: So compactness is Something that the Supreme Court has called a traditional factor of redistricting But it's not an iron law because another factor that's key is something called communities of interest so let's say that there's Here's a sort of micro example. [02:17:00] There's a big Caribbean community outside of D.
C. In one particular part of Maryland, right? The way that they have organized their lives and businesses and whatever is not into a compact district, but they're placed in the same state senatorial district that looks a little funky because they're deemed a community of interest in the state felt that they should elect a representative who could represent their interest or a state senator.
So that is sort of the other feature that's intention with the compactness. issue. Um, and in this case, a big fight was, well, can you sort of collect black communities in a district and say their communities of interest and, uh, put them in a district that looks a little bit funky? Or is the district so weird looking and so contrived that it's obviously unconstitutional.
And I think this district was very different from the one in Alabama that the Supreme Court struck down. Okay. The district in Alabama that was struck down, it was like this snake that went around and sucked. up every black community that it could [02:18:00] and was designed to prevent black people from living anywhere else so that it could just be this one deeply black district and everybody else could be in their own lily white district.
The Louisiana district was different. It did have a majority black population. It did look a little bit funky. I think that the state legislature, and I don't really want to give it to them because, you know, these were sort of cynical Republicans, but I think they were trying to follow, for the most part, the court's order, the original court's order, which was that your districts are not giving black people representation in the congressional delegation.
You have to draw another one that will boost their representation. And so these are the two sort of, like, These are the two polls against which all redistricting law has to go through. And it's sometimes difficult to see if one is veering too far one way or the other. Does that make sense?
Elie Mystal on Why You Don't Need to Like SCOTUS Anymore Part 2 - Boom! Lawyered - Air Date 4-12-24
IMANI GANDI - CO-HOST, BOOM! LAWYERED: So, you know, we've established that Sam Alito just, you know, DGAF, right? He does not care. But Roberts was supposed to be the guy that cared. Right. You know, he's the guy [02:19:00] during his confirmation hearing talking about, Oh, my job is just to call balls and strikes. Like what happened to that guy?
What happened to the guy who was concerned about the legitimacy of the court? Like, what do you think is going through Robert's mind right now? Because he's presiding over the most lawless and anti democratic Supreme Court. And he was the guy who was supposed to be the upstanding, like sensible conservative.
ELIE MYSTAL: No, Roberts is getting exactly what he wanted. He's not getting it in the way that he wanted it, but he's getting exactly what he wanted it. And I look at Roberts vis a vis the more extremist version of Republicans on the Supreme Court. And the same way that I look at kind of the Republican party. Vis a vis Donald Trump, Donald Trump brings Republicans victory.
Donald Trump does what Republicans have always wanted to do. Policy wise, there is almost no difference between Donald Trump and Mitt Romney. [02:20:00] The difference is breeding. The difference is grooming. The difference is that Mitt Romney wants all those same things without calling people rapists and murderers, without literally raping people, without grabbing them by the pee.
Like, Mitt Romney wants the same things, he just doesn't need to fuck Stormy Daniels to get it, right? But their conclusion is the same. And people forget that about the Republicans. Donald Trump is nothing if not a standard issue freaking Republican policy person. He just does it with, you know, increased racism and misogyny and idiocy and danger and
IMANI GANDI - CO-HOST, BOOM! LAWYERED: whatever.
He's their id. He's the Republican id. Right?
ELIE MYSTAL: That is how I think Roberts views Alito or Thomas, um, or, or, or Gorsuch, right? They get to the same point. How they get there, completely different. Yeah. And Robert wants to get there slowly, [02:21:00] incrementally. Robert wants to boil the lobster, right? Raise the temperature slowly and slowly until the lobster is cooked, and it doesn't even know what happened, right?
Alito just wants to stab it with a knife. He's just like, Give me that lobster! He's just, Ah! Right? He's just, Right. He wants to crack the lobster. Roberts wants to slowly boil the lobster, but in the end, they're eating your rights. Like, in the end, they're coming for you. They just are coming from you from two different angles.
So I think that's the thing. What is interesting about Roberts? And I think this also goes for Barrett to some extent. Um, The 5th Circuit is a problem for them. Because, right, the, like, there are conclusions that those alleged moderates want, and then there's the 5th Circuit, which is in straight off the chain YOLO mode.
And it just, the 5th Circuit is just embarrassing them. At this point, right? Because the fifth circuit is [02:22:00] thinks that it's I've made the analogy and one of my pieces for the nation that the fifth circuit basically downloaded the FedSoc, the FedSoc app. But doesn't quite know how to use it, so they're just kind of like spitting out the conclusions, but they're doing it in this torturous, embarrassing, stupid, legal way.
And Roberts, and to some extent Barrett, are trying to like clean up just the, just the refuse that the Fifth Circuit keeps dumping. On their desk while preserving the very evil and disastrous outcomes of the fifth circuit is trying to get. That's why you had the, uh, the, the judge shopping thing from the judicial conference, which, you know, and if people don't understand the judicial conference is made up of chief justice, John Roberts, chief justices of the various circuit court courts, some district courts, and it's like some retired judges.
It is John Roberts, his mouthpiece. The judicial conference is John Roberts trying to make rules for [02:23:00] the entire federal judiciary. So when the judicial conference says, we're going to stop this drug shopping thing, we're going to stop Matthew Kazmaric, we're going to stop the emperor of Amarillo. That's John Roberts being like, I am sick of y'all.
Like y'all need to chill. Right. But of course, what's the fifth circuit do? What does the Northern District of Texas do? Yeah, Judicial Conference, go sit on it. Right. Right. They literally told the Judicial Conference that they just weren't going to follow the, the new guidelines. And since the Judicial Conference is just an advisory board, it's not Congress, they can do that, right?
So like, that's, that's the inter, that's the push pull within the Republican caucus. They, uh, on the Supreme Court and in the federal judiciary. All of the Republican appointed just, justices in generally want the same things. There's just a sense of how we go about getting those same things with one wing or Roberts, a Barrett kind of more [02:24:00] interested in getting those things the right way.
And, uh, the, the Alitos and the James Hoes and the Matthew Kaczmarek's being like, you know, let's just do it and be legends right there. It's a fire festival versus the Burning Man version of the same thing.
Way Too Close Insane SCOTUS Case Could've Sunk The Country w Mark Joseph Stern Part 3 - The Majority Report - Air Date 5-26-24
SAM SEDER - HOST, THE MAJORITY REPORT: The whole
MARK JOSEPH STERN - WRITER, SLATE: thing is poison pills. It's a giant poison pill. Either the Supreme Court now uses that principle to block progressive decisions. You know, say that a judge says that some absentee voting restrictions are unconstitutional. The Supreme Court is going to use the same rule to block that decision and say it's too close to an election.
You can't make it easier for people to vote. And then this whole case is just a mess because like I was saying, you've got this legitimate interest in boosting black representation in Congress and boosting, you know, the But the proportional representation of black voters, but at the same time, you've got this concern about districts that are sort of contrived to ensure that only black people live in them.
And you've got to navigate between those two things. [02:25:00] Republicans are really, really good at sort of scheming to make every district that's too black, look like it's unconstitutional and make districts that are too white look like they're just fine.
SAM SEDER - HOST, THE MAJORITY REPORT: Uh, and, you know, if I'm, uh, in a Republican dominated, uh, state.
I'm just gonna wait until we're eight months out from an election to say no more, uh, mail in ballots, no more, uh, we're closing half of the, uh, polling stations, and then I know I'm protected. And I can do that every year. Back
MARK JOSEPH STERN - WRITER, SLATE: in the day, before Shelby County, you couldn't. You had to run everything by the Justice Department, but now preclearance is over so you can do whatever you want.
And yes, the legislature can change the rules just before an election, but the judiciary can't step in to block them, even if they're patently unconstitutional.
SAM SEDER - HOST, THE MAJORITY REPORT: Wonderful. Um, Uh, let's talk about, um, uh, Sam Alito. Um, the, uh, back in the [02:26:00] day when Scalia was still alive, we used to call Alito, Scalito. And uh, one of the hallmarks of, uh, Anthony Scalia was that he like particularly towards the end of his, uh, his, his career was writing his opinions.
More or less sound like he cribbed him from, uh, right wing talk radio. Yeah. And, uh, it seems like, uh, skeletal is really, really worthy of the name at this point.
MARK JOSEPH STERN - WRITER, SLATE: Uh, I would say that Sam Alito has always been worse than Scalia. You know, Scalia had a period from like the eighties through the sort of mid aughts when he had this strong judicial philosophy and included things like deference to administrative agencies, by the way, that was coherent and didn't necessarily exclusively tow the Republican line and jurist to watch.
I think starting around 2005, he started to sort of lose his mind or get brain Poisoned by Fox News. And late stage Scalia was indeed [02:27:00] an embarrassment. Um, but he had that phase where he had a real philosophy. Sam Alito has never had a real judicial philosophy. His only philosophy is whatever Republicans want to do, they get to do whatever Democrats get to do.
They can't. He has always been a partisan hack. I mean, by far, he has the most partisan voting record. And so I'm not surprised that he and his wife, Martha, and by the way, is a big, anti abortion advocate and very big in the sort of conservative Catholic circles in D. C. that the two of them run in. I wasn't surprised that they did this thing.
flag upside down thing. I think they were entirely aware that it was a symbol for stop the steal. I think both of them absolutely believe the 2020 election is stolen. And I think there's a direct link between those personal views at home and Alito's own judicial writings and decisions, which are consistently attempting to call into question the integrity of the 2020 election.
And we'll probably try to call into question the 2024 election as well.
EMMA VIGELAND - CO-HOST, THE MAJORITY REPORT: I mean, you read the New York Times article on it, and it's, it's unambiguous as you say, Mark, right, this is [02:28:00] involving a dispute that, uh, he allegedly had with one of his neighbors because they had a sign that was critical of Trump that had an expletive on it, and then he responded in this manner, but like Dick Durbin is now saying, NBC News reporting today, Okay.
that they're not going to take up the matter and look into it in the Senate Judiciary Committee. Like, why does it stop here? Is it, is it politicking? Is it an election year? Because there should have been even more robust probes into Clarence Thomas, and now we're not even going to look into this, even though we're talking about How democracy is on the ballot.
It's pretty, pretty bad politics at a base level.
MARK JOSEPH STERN - WRITER, SLATE: And I don't even need to ask, like, what if Katonji Brown, Jackson's husband did something similar to this, like Republicans would actively march to her house with pitchforks. There's a huge double standard here. And I think it shows that even well over a year out from the Clarence Thomas.
bombshell reporting by ProPublica about his billionaire benefactors and donors and all that stuff. Uh, Senate Democrats are still not playing [02:29:00] hardball at all when it comes to the judiciary. They're not even playing softball. They're not even playing. They're not playing. They're not playing at all. They just packed up their toys and went home.
They are scared of these justices for no good reason. Right? Like the Democratic base is not exactly a fan of Justice Alito or Justice Thomas, but senators are, for some reason, terrified of the repercussions of, say, calling them before the Senate Judiciary Committee, asking a few basic questions like, do you think the 2020 election was stolen?
Um, or did you accept a huge amount of money to rule in favor of your best friend? They are, uh, I think not up for the job. They are not the, the men and women for this moment. It's specifically the men, people like Dick Durbin, I'll say. Um, and, uh, it's hopefully a lesson for future Democratic Senates if they exist, don't put moderate squishes who are into conciliation in charge of the Senate Judiciary Committee.
This is about the worst place that Dick Durbin could be in the Senate. [02:30:00] If someone like Sheldon Whitehouse were in that seat, it would be a lot different. But Democrats decided they wanted to be conciliatory. Right. And so this is the path they've chosen the path of doing nothing.
SAM SEDER - HOST, THE MAJORITY REPORT: We should also say that, um, there was a report, um, to yesterday that, uh, that Alito sold Bud Lightstock as a, in the wake of, um, uh, of the, um, the, the, I guess the, the hullabaloo over Dylan Mulvaney.
Um, He sold his stock and bought cores or something like, you know, um,
MARK JOSEPH STERN - WRITER, SLATE: by the way, it should not be owning individual stocks, owning, selling, whatever it's like he, he and Roberts are the only ones who do that. The other ones have it in a blind trust. He and Roberts are the only ones who can be like, yes. Bud Light, they have a transgender spokeswoman on Instagram.
Time for me to sell [02:31:00] off this stock and buy some court. Like the fact that that's even possible for a Supreme Court justice is in itself pretty insane.
SAM SEDER - HOST, THE MAJORITY REPORT: Um, it is amazing to me that we're not having hearings on this. I mean, it is so obvious, uh, from the reporting and the hearings should just be like, we're just going to invite the reporters.
We will invite the justices to come and defend themselves if they want. Uh, they won't come, but let's hear this story. Because Clarence Thomas clearly basically said, I'm going to quit the court unless, uh, I get some type of financial support. And then all of a sudden, He's introduced by, uh, Leonard Leo, uh, to a billionaire and now they're best friends.
Um, that's a great story. And I mean, I imagine, you know, the Alito is probably not best friends with a billionaire, but there's a couple of billionaires who like him and, uh, you know, [02:32:00] subsidizing his flagpoles or whatever it is. This is just, it is. Crazy how the Democrats, Dick Durbin in particular, and Leahy was the same, are refusing to acknowledge what's going on there.
It's almost like It's, it is, it's, it is the highest form of denial that I think could possibly exist. I mean, they're on
MARK JOSEPH STERN - WRITER, SLATE: the judiciary committee. That's what their job is. I think that the dream of an impartial court that majestically dispenses equal justice to all is a narcotic. And these guys are still addicted to it.
After all these years, they're still addicted and it's gonna take something even bigger. bigger to shatter that. Honestly, if Bush v Gore didn't shatter it, I don't really know what was. Maybe we just have to wait for a new generation that doesn't have the scales on their eyes. But I truly think that these, these senators have just grown up and built their identities around this notion that the Supreme Court is so majestic it can't be touched.
And even as it corrupts itself [02:33:00] and falls into disarray and shame, These senators are essentially propping it up through their inactions rather than launching real investigations that they have power under law to do.
Will These SCOTUS Justices End American Democracy - Thom Hartmann Program - Air Date 5-31-24
THOM HARTMANN - HOST, THOM HARTMANN PROGRAM: It's what, what to do about Sam Alito is the question here. Jamie Raskin published a piece in the New York Times yesterday, uh, suggesting that there are a couple of things that can be done about Alito and Thomas refusing to recuse themselves. Uh, the first is, and he points out, is that there is a law which applies to the Supreme Court.
It says, you know, it, it, it refers to all federal judges, well all judges in fact, and, and it says, and I quote, any judge, any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Now the law says any justice.
The only federal judges who are called justices, and this is a federal law, [02:34:00] are on the Supreme Court, so this clearly refers to the Supreme Court. So, if Alito and Thomas impartiality can reasonably be questioned by, for example, having their wife involved in an insurrection attempt against the United States, or flying the flag of the insurrection attack, uh, attempt, excuse me, then, These justices are in violation of the law, so what do we do about that?
Merrick Garland, the, uh, the, uh, Attorney General of the United States, can prosecute them. He can charge them with a crime, with a violation of this law, and he should. Now, you know, Raskin is saying, oh yeah, he can do this, I'm, you know, of course you and I both know that, you know, Merrick Garland has the spine of a jellyfish, this, this ain't gonna happen.
He's, he's terrified of Republicans. Or he's one of them. I mean, who knows? When, when [02:35:00] Barack Obama wanted to put somebody non controversial on the Supreme Court, he went to, to the, uh, senator from Utah, Warren Hatch, and said, you know, who will be acceptable to Republicans? And Orrin Hatch said, well, Merrick Garland's a good guy.
And Orrin Hatch is a hardcore right winger. So, you know, there you go. But, so, number one, that could happen. And number two, Jamie Raskin's other suggestion is that the other seven justices on the court could simply get together and say, hey guys, knock it off. You guys, you have to recuse yourselves. We're not going to put up with this.
Chief Justice Roberts could order it. But again, you know, That would require a majority of the right wing justices on the court who, uh, you know, and, and three of them are on their, on their inappropriately at the very least, illegitimately at the most, to take on their two right wing colleagues, and that ain't gonna happen.
I mean, we can dream, [02:36:00] I'd love to see Alito and Thomas prosecuted. You know, have, have, uh, have, uh, the DOJ appoint a special prosecutor. But I'm not holding my breath.
SECTION D: SCOTUS IS A FLAWED SYSTEM
JAY TOMLINSON - HOST, BEST OF THE LEFT: And now section D SCOTUS is a flawed system.
Delegitimize The Court Part 2 - Contempt of Court with Elie Mystal - Air Date 8-22-23
ELIE MYSTAL - HOST, CONTEMPT OF COURT: What does it mean on the ground? to delegitimize the court, to strip the court of its supremacist function, right? Because a lot, let's put it like this, a lot of this podcast, a lot of my work is focused on court reform and specifically court expansion, right?
Yeah. And that's great. That's fun. I think that that would work, but it fundamentally, you know, Kind of presupposes the idea that these nine, or in my case, 29 or 30, however many you want, justices do have some kind of overarching, controlling role of our society, and I'm trying to kind of change the kinds of people who get to make those decisions.
But that's not really delegitimizing the court. That's rearranging the deck chairs so they stop stabbing me in the face on the way down. Right. One of the reasons why I like [02:37:00] your work is that even as simple as like, you, you don't talk about these people in the kind of genuflecting tones, um, that a lot of us have been trained to kind of talk about the justices.
But beyond kind of rhetoric, what does delegitimization mean? actually look like when it's applied to this court?
RHIANNON HAMAM: Yeah, I have two thoughts and I think both of them come from my background and readings as a prison abolitionist, right? In prison abolition, when we're talking about abolishing the prison industrial complex, we are talking first, you know, people ask, well, how do you get rid of prisons, right?
How do you de legitimize the Supreme Court? It's a co equal branch of government in the constitution, right? What, what you're thinking about actually in terms of at least in the short term, um, is shrinking its power. You know, court expansion does not abolish the Supreme Court, right? But what it does is shrink individual justices power.
So it's not only about changing who is making the decisions on the court, which is extremely important, but [02:38:00] it's also about making sure John Roberts, Sam Alito, Clarence Thomas, Amy Coney Barrett, right? That they don't have the outweighed Disproportionate massive amount of power that they have over the institution right now.
So that that goes to shrinking power, right? Other structural reform proposals, things like jurisdiction stripping, right? That also shrinks the power of the Supreme Court. That is towards a what I would call sort of an abolitionist goal that is towards a delegitimization process structurally of the Supreme Court as we have it now.
Now, another idea that I have that really comes from prison abolition as well, and I think speaks to your question about like, what does this look like on the ground? Okay. So for normal people in my community, right, teachers and doctors and bus drivers, right? How are they thinking about the Supreme Court and how do we de legitimize the Supreme Court in their minds and in their lives?
You know, something I've learned from prison abolition also is [02:39:00] about, The power of imagination, the system that we have does not have to be this way, we are capable of imagining a legal system that is truly about equality and justice for all. And we have the power to think about how we want that structure to look right.
So it's about building people power, but I actually have a few examples of this happening. Already. Okay. One example is in the reproductive justice space. So Dobbs, of course, overturned Roe v. Wade last year. Many states across the country soon, uh, banned abortion, but there are a few things that people are doing on the ground that, uh, basic.
Can we curse on this podcast? Yes. We
ELIE MYSTAL - HOST, CONTEMPT OF COURT: have the
RHIANNON HAMAM: explicit tag
ELIE MYSTAL - HOST, CONTEMPT OF COURT: all ready to fucking
RHIANNON HAMAM: go. Right. Okay. But there are a few things, massive impact that community organizations are having right now that say fuck Dobbs. Fuck your Supreme Court, [02:40:00] right? In state legislatures, five states, including Colorado and Massachusetts, I believe, have passed SHIELD laws to protect healthcare providers in their states who provide any healthcare that is legally protected in that state, which includes prescribing and sending abortion pills to anyone in the United States, right?
That's an example of state lawmakers acting, saying, You know what? Okay, Dobbs says what it says. We're going to do what we can do that circumvents that is around and outside the scope of that awful ruling and then community support networks. I talked about people power, right? They are now providing free abortion bills to people living in states with abortion bans.
You know, dozens of companies offer abortion pills now at low cost online, some less than 50. Delivery is within a few days. That is because groups said, fuck the Supreme Court, we don't care what they say. We're going to support people making reproductive choices for themselves, their families. their communities, no matter what [02:41:00] the law says.
We operate outside of this. The Supreme Court does not speak for me, right? Um, I think there's another example in the case of student loan debt. There's a great organization called the Debt Collective. I read a wonderful book published by them called Can't Pay, Won't Pay, The Case for Economic Disobedience and Debt Abolition.
Ooh. They're, they're, yeah. Um, you know, their stance, they have written the model, uh, executive order for President Biden, their stance, even after the student loan debt case where the Supreme Court said, um, that 10,
ELIE MYSTAL - HOST, CONTEMPT OF COURT: 000 for everybody. Yeah.
RHIANNON HAMAM: Stole 10, 000 from everybody. That's right. Uh, the debt collective says President Biden could cancel all student loan debt today with an executive order.
He could do that today. And then what? Right. What's the Supreme Court going to do about that? Right. I don't accept your decision, Supreme Court. Thank you so much. We are operating outside of the scope of power, the scope of authority that you think you have. [02:42:00] Labor organizing, I think, is another really good example of this people power delegitimizing the Supreme Court.
The Supreme Court has played a massive role in weakening unions. You know, ever since the passage of the NLRA, right? But you get workers acting collectively, you know, uh, I'm just thinking about the recent UPS workers threatening a strike, right? You get workers acting collectively. Corporations do not have a choice.
The people's power Is way too massive, right? Our economic power together outside of the legal system outside of the structure of judicial supremacy is where the power lies and is where I think we would do well to connect that we are delegitimizing the power of the Supreme Court when we are organizing in these ways.
Way Too Close Insane SCOTUS Case Could've Sunk The Country w Mark Joseph Stern Part 4 - The Majority Report - Air Date 5-26-24
SAM SEDER - HOST, THE MAJORITY REPORT: Okay. So walk us through for people to understand how our federal judiciary works. Because I said 200 judges, you said not the circuit court because we were talking about the federal district courts. Um, and what, what's the difference?
Just walk [02:43:00] us through the different hierarchies and how a case makes it to the Supreme Court.
MARK JOSEPH STERN - WRITER, SLATE: Yeah, so for the vast majority of cases, a lawsuit or complaint is filed in a federal district court. The federal district judge in that court gets to oversee the case, issue a decision. In theory, cases are supposed to be randomly assigned to these judges.
By law, in fact, cases are randomly assigned to one judge on the court. So even though it's called the Northern District of Texas, for instance, that's one court, it has a bunch of different judges who sit on it. But what these judges have done is put themselves in what are called single judge divisions.
So they'll set themselves up in places like Amarillo, Texas, or Wichita Falls, Texas, where they are the only federal judge in that geographic area. and they will invite litigators to walk into their courthouse and file a case, which is then not randomly assigned to any judge within that district court, but assigned directly to them.
That is what Matthew Kaczmarek keeps doing. He just recently, by the way, blocked the new [02:44:00] law that Congress enacted and directed Biden to implement that closed the gun show loophole. Um, so this is still very much happening. whatever that judge does, it then gets appealed to the court of appeals that oversees those courts.
So here for texas, Louisiana and Mississippi, that is the fifth U. S. Circuit Court of Appeals. The vast majority of cases, something like 99 percent of cases, they End at the Court of Appeals, right? The Supreme Court is lazy. The Supreme Court only takes like 60 cases a year. Even Brett Kavanaugh says that that is a ridiculously low load and he's right.
So most of these cases are just ending at the circuit courts and the circuit courts therefore get to make most of the law in the country. Even if a circuit court gets it wrong, it might not be a decade, even 20 years until the Supreme Court steps in to reverse it. The Supreme Court can take its sweet time.
So this is how we just to be clear.
SAM SEDER - HOST, THE MAJORITY REPORT: You could have one set of laws, essentially, in the 5th Circuit, and another one in [02:45:00] the 8th Circuit, or, uh, the 4th Circuit.
MARK JOSEPH STERN - WRITER, SLATE: Correct. And that is when the Supreme Court's supposed to step in. We call that a circuit split, but again, the Supreme Court has gotten kind of lazy, or gun shy, or something, and it hasn't been resolving those splits.
So, we have very different law in different parts of the country, and that is It's especially true when it comes to immigration law because the Ninth Circuit oversees California and it's very liberal and the Fifth Circuit oversees Texas and it's extremely conservative. So basically migrants who come in through Texas have a much lower chance of being able to vindicate their rights under law, like the right to seek asylum and have a credible fear of persecution hearing if they come in through Texas than in California.
SAM SEDER - HOST, THE MAJORITY REPORT: And we should say the reason why, uh, the Fifth Circuit. Texas, Louisiana, um, uh, Mississippi and Mississippi versus, um, uh, the, the, the circuit, uh, the California circuit is because the senators nominate from these states [02:46:00] nominate these people to the, uh, that court. And if they don't want, um, if they have a problem or, or they suggest, I should say, Uh, to the white house, the white house then nominates those people.
But if they have a problem with it, they withhold their blue slip. And of course, only Democrats now when they're chairing the judiciary committee recognize that tradition. When the Republicans come in, blue slips are no longer effective.
MARK JOSEPH STERN - WRITER, SLATE: That's exactly right. For, for circuit court judges especially. And so when Trump came in, uh, McConnell was like, we're not doing this.
We are stacking the courts of appeals because Mitch McConnell better than anyone understands that you don't have to win elections if you can just capture the courts. They will do everything for you. Um, and so McConnell held open or directed Texas as senators to hold open seats on the fifth circuit under Obama.
So when Trump came in, it wasn't just that some judges strategically retired that they did. It was that there were vacancies awaiting Trump [02:47:00] because Republican senators had used the blue slip process to keep those seats open and ensure that a democratic president wouldn't be able to fill them. That's why.
Today, the Fifth Circuit has this lopsided majority of sort of, I call them judicial arsonists, judicial nihilists. They're a combination of Trump appointees and insane appointees of previous Republican presidents who have sort of banded together to be the vanguard of the new conservative rights.
SAM SEDER - HOST, THE MAJORITY REPORT: And they're, they're, uh, I mean, It's likely it seems to me that if Donald Trump gets into office and, uh, has a, um, uh, a seat or two available on the Supreme Court, the Fifth Circuit's going to have a, uh, uh, there's going to be a nominee from that, that circuit, right?
MARK JOSEPH STERN - WRITER, SLATE: Yeah. So that's the other thing that's going on here. A lot of odd things. Judges on the Fifth Circuit appointed by Trump all think they're going to be the next Supreme Court appointee under a Republican president, probably Trump 2. 0. So we have people like Jim Ho, who is, uh, going [02:48:00] out there doing this tour, talking about how So Judge shopping is amazing.
It's the best thing ever that it's horrible that anyone would ever oppose it. He talks about abortion as this moral tragedy. He condemns like abortionists all the time. He talks about how liberals want to bring the woke constitution into effect and we need like these brave conservative warriors for the judiciary to stop them.
I mean, he's like a Fox news talking head, similar thing with Andrew Oldham, similar thing with Kyle Duncan. These are the Trump appointees who go out there. They are the ones. Boycotting Columbia. They say they won't hire law students as clerks from Columbia because of the protests. They're the ones who go on TV, go to sort of student groups and shout at them and say things like, you know, you're all woke liberals.
Uh, they are auditioning to get a seat under the Supreme Court and the Supreme Court might. Try to send these signals to them too subtly, in my view, that they should rein it in. But to them, that just proves they're doing a good job because universally, I think at this point, like the thought [02:49:00] leaders of the Republican legal right think that Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch were all mistakes and that they need to do better next time.
Delegitimize The Court Part 3 - Contempt of Court with Elie Mystal - Air Date 8-22-23
ELIE MYSTAL - HOST, CONTEMPT OF COURT: I want to jump right in to the question of The Supreme Court's power. How is the Supreme Court so powerful? How did we get here and how do we ever get away from it? I think
NIKOLAS BOWIE: one way of getting at the question is thinking about when has the Supreme Court disagreed with Congress about the constitutionality of one of its laws.
And so the way in which a lot of law professors have answered that question is by looking at Marbury versus Madison in 1803. And that case is often cited as. It's the origin of the Supreme Court's power of judicial review, and the Court said it's emphatically the duty of the Judicial Department to say what the law is.
But one funny thing, there are a few funny things about that as an origin story. I think the most interesting thing is the Court wasn't actually disagreeing [02:50:00] with Congress about anything. Like, the case involved a federal law that someone invoked and asked the court to enforce it. And the court basically was like, this law does not apply in this context.
And we don't think it can, because that would be unconstitutional. But so the first time the court actually took a law that Congress passed, And said, we just think that law is not constitutional and we just disagree with Congress is Dred Scott versus Sanford in 1857, in which the court said that Congress doesn't have the power to abolish slavery in federal territory because it violates the property rights of slave owners.
And when the court announced that, this is the first time the court disagrees with Congress about the constitutionality of a law. You know, most people, when they read it, were like, what? Really? You really just said that, like, you know, the entire platform of the Republican Party, which is calling for the non extension of slavery, is unconstitutional?
We can't decide this important question for ourselves? And [02:51:00] so, the Republican Party responded to that case by basically just running against the court. Like, where did this power come from? It certainly has never been used before. We don't think it should exist. We think that, you know, the American people can decide this.
And when Abraham Lincoln, you know, was inaugurated president in 1861. You know, he's like, we can have a system in which the Supreme Court decides all these really important questions, but the candid citizen must confess that we would cease to be a government of the people if we handed all of that power to this eminent tribunal.
And so it wasn't really until after the Civil War, after Reconstruction, and the rise of the labor movement when the American people as a whole started to accept this idea that when it comes to the most important constitutional questions, The Supreme Court should be able to have the last word. And so it was very much a part of a cultural counter revolution to movements on the left, to, you know, create multiracial democracy, to create [02:52:00] safe and healthy working conditions, uh, an empowered labor movement.
And the court basically grabbed on to striking down these federal laws, and a lot of social conservatives signed on, thinking, I like what they're doing. Uh, let's keep it up.
ELIE MYSTAL - HOST, CONTEMPT OF COURT: I would argue as well that one of the, the big expansions of the Supreme Court's power in this country happened in direct response to the reconstruction amendments.
So you're kind of talking about the first time the court. openly, I don't want to say defied Congress, openly disagreed with Congress's interpretation of the Constitution. But when you look at some of their Reconstruction era cases, the slaughterhouse cases, for instance, and then certainly leading up to Plessy v.
Ferguson, what we have is a court that is not just disagreeing with the President or Congress, it's disagreeing with the amendments. foisted onto the Constitution, arguably over their objection, [02:53:00] to cable those amendments, to cable those Reconstruction amendments, to weaken them, to lessen them, to make them less robust than perhaps even the writers of those amendments thought they should be.
And the country just went along with that. Just was like, Oh, yes, of course, the 15th Amendment shouldn't actually apply to anybody. Oh, yes, of course, the 13th Amendment only applies. to the freed slaves. That, that wasn't what was in the text of those amendments. That's something that the Supreme Court kind of did on its own.
Yeah, so I think
NIKOLAS BOWIE: it's important to be precise about what is wrong with the court. Like, what is the real source of the problem? And for me and my colleague, Daphne Renan, the source of the problem Is the Supreme Court's power to invalidate federal law, to say there is no institution in the country capable of interpreting the Constitution better than us.
And that even if Congress writes the 14th [02:54:00] Amendment, gets it ratified, and then starts enacting laws to enforce the 14th Amendment, We are better than them at interpreting that amendment and deciding what it means. And so, you know, when Congress proposed the 14th Amendment, it did so in a context where all of these southern states were actively resisting it.
Like, Congress had to deny representation to, like, representatives from southern states until their states adopted multiracial constitution, and then those new state legislatures ratified the 14th amendment. So Congress knew states were going to be super hostile to enforcing all of these new reconstruction amendments.
And so what they attempted to do was like, try to enforce These new amendments, any way they could, they created new agencies, like the Freedmen's Bureau, and said, go enforce this. They told the military, like, if you see the Klan, stop them, arrest them. Uh, and they told federal courts, you know, enforce the Constitution [02:55:00] against hostile state actors.
If you see a state actor violating the Constitution, enjoyed them. And the problem began not just because the court had like bad opinions about what these amendments meant, which was certainly an issue, but that even when Congress went ahead and said, and here's what we think the 14th amendment means. So in telling you to enforce it, here's some guidance.
The court responded to that by saying, I don't know, that seems really aggressive, Congress. Do you really think the 14th Amendment empowers you to pass an anti discrimination law? Do you really think the 15th Amendment empowers you to pass a voting rights law that affects, you know, private citizens? We don't think so.
And so Congress passed all these laws in the Reconstruction era. They passed a Civil Rights Act, they passed a Voting Rights Act, they passed laws to prevent lynching. And the Supreme Court struck those down. And so it was only because the court disagreed with Congress about its own power, that Plessy versus Ferguson or cases like it were even an issue.
[02:56:00] Because when Congress was passing civil rights laws, Louisiana couldn't adopt a segregation ordinance because that would have been unconstitutional. You know, it would have been illegal to segregate, but it was only after the court struck that down that states like Louisiana and Virginia and the rest of the Jim Crow South said, Oh, it looks like we have this ally in the court we can get away with a lot.
And then when people invoked these federal laws saying, Hey court, aren't you supposed to stop these constitutional violations? The court's response was, Oh, you know, that's a lot of work. I'm not really sure that we have the power. Besides, you know, slavery ended, you know, 20 years ago. Surely black people can stand up for themselves.
And so it's, it's the real, it's the disagreement with Congress that like, begins the rest of the issue and remains the root of the problem today.
Credits
JAY TOMLINSON - HOST, BEST OF THE LEFT: That's going to be it for today. As always keep the comments coming in. I would love to hear your thoughts or questions about today's topic or anything else. You can leave a voicemail or send us a text at [02:57:00] 202-999-3991, or simply email me to [email protected].
The additional sections of the show included clips from Amicus with Dhalia Lithwick, 99% Invisible, BOOM! Lawyered, The Majority Report, The Thom Hartmann Program, and Contempt of Court with Elie Mystal. Further details are in the show notes.
Thanks to everyone for listening. Thanks to Deon Clark and Erin Clayton for their research work for the show and participation in our bonus episodes. Thanks to our transcriptionist quartet, Ken, Brian, Ben, and Andrew, for their volunteer work helping put our transcripts together. Thanks to Amanda Hoffman for all of her work behind the scenes and her bonus show co-hosting. And thanks to those who already support the show by becoming a member or purchasing gift memberships. You can join them by signing up today at bestoftheleft.com/support, through our Patreon page, or from right inside the Apple podcast app. Membership is how you get instant access to our incredibly good and often funny weekly bonus episodes, in addition to there being no ads and chapter markers in all of our [02:58:00] regular episodes, all through your regular podcast player. You'll find that link in the show notes, along with a link to join our Discord community, where you can also continue the discussion.
So, coming to from far outside the conventional wisdom of Washington DC, my name is Jay, and this has been the Best of the Left podcast coming to you twice weekly, thanks entirely to the members and donors to the show, from bestoftheleft.com.
