Air Date: 8-1-2026

Today we investigate how the argument moved from what the Supreme Court decides to whether the Court should be rebuilt. Only about one in five Americans has strong confidence in the Court, and the proposals on the table would end lifetime seats, set fixed terms, and add judges across the federal bench. We're arguing that these reforms are necessary for a functioning democracy.

Full Show Notes

Welcome to this episode of the award-winning Best of the Left podcast.

Today we investigate how the argument moved from what the Supreme Court decides to whether the Court should be rebuilt. Only about one in five Americans has strong confidence in the Court, and the proposals on the table would end lifetime seats, set fixed terms, and add judges across the federal bench. We're arguing that these reforms are necessary for a functioning democracy.

For those looking for a quick overview, the sources providing our Top Takes in about 45 minutes today include

All In with Chris Hayes

Democracy Now!

Amicus

5-4

and Stateside

Then, in the additional, Deeper Dives half of the show, there'll be more in 4 sections;

Section A, THE RULINGS

Section B, THE CHARACTER OF THE COURT

Section C, ORIGINS, HOW WE GOT THIS COURT

And Section D, REFORM, WHAT DO WE DO

And now, on to the show.

Writing for the majority, Roberts stated, "The 14th Amendment clearly means what it says." Quote, "Citizenship then and now was the right to have rights, to freely participate in our political community. The framers of the 14th Amendment extended that promise to every free born person in this land. We keep that promise today."

That was always what the court should have said to the Trump administration. Their case against birthright citizenship was always just an, an unconstitutional shot in the dark. A, a bad faith, crankish reading of the 14th Amendment motivated by racism and xenophobia. 

The idea that you can have a country where you just set foot on US soil, and any child you have gets to be an American citizen and vote in our elections, collect our welfare, sit in our juries, sit in judgment of our fellow men and women, is such an outrage to the idea of having a country.

It defies description. I don't know what they're gonna do, but here's what I can say. If this country doesn't, one way or another, end birthright citizenship, this country doesn't have a future. Citizenship has to be sacred and precious. 

I- I really, struggle to accurately convey just how extreme, how unhinged, and how, frankly, racist that position is.

But let me try. Stephen Stephen Miller's reading of the 14th Amendment had already been repudiated by the Supreme Court more than a century ago. It's a famous case. It was in 1898, the case of Wong Kim Ark, who was born in the US to Chinese parents. That court then, operating in 1898, said, "If you're born in the US, you're a US citizen."

They looked at the plain text of the law, and they found that. And they handed down that decision, get this, two years after upholding racial segregation in Plessy v. Ferguson. Those justices, the ones who enshrined Jim Crow in the laws of the United States, they cemented separate but equal, but even they upheld birthright citizenship in a 6 to 2 vote because the language of the 14th was plain as day.

That is how racist Stephen Miller and Donald Trump's argument is. It is more racist than a racist reactionary court, the infamous Plessy court, was almost 130 years ago. Think about that. And the other thing is, there hasn't been any real legal or historical shift away from birthright citizenship since then.

There were a few, again, anti-immigrant cranks on the right, which you'll always find, right? Churning out diatribes against anchor babies. But didn't matter. Naturally, Donald Trump courted them, and then last year, remember, he finds himself back in office, and he's got his handpicked 6-3 Supreme Court majority where three of the justices were the ones that he elevated.

And so he went to work pressuring them to reimagine the Constitution. In fact, to rewrite it, to essentially amend the Constitution by fiat in collusion with him and five votes. Remember that he even went to oral arguments to physically intimidate them, to glower at them. It was a, a first for a sitting president.

Now, it didn't quite work. He lost today. we all, as Americans, won. The Court still did the right thing, but barely. by a shockingly narrow margin, by one vote. In 1898, the margin was four votes. Today, by one vote, this court rejected what would amount to rewriting the Constitution on the fly. In, in, in some senses, overturning the victory of the Union forces and the multiracial coalition that refounded the country after that victory in the 13th, 14th, and 15th Amendments.

Essentially just taking white out to an amendment that was bought with the lives of hundreds of thousands of Americans in the Civil War It's jarring to think that the very right to have rights in America hinged this week on John Roberts and Amy Coney Barrett. The lesson here is Donald Trump lost, thankfully, but this court, phew, it has to be addressed.

It has to be dealt with. A- and this movement, the movement that brought us to this point, has to be defeated thoroughly and completely because the goal is nothing less than uprooting the very foundational principles that make this country so special and so worth fighting for. Sherrilyn Ifill's the Vernon Jordan Chair in Civil Rights at Howard University.

She's also the founding director of the university's 14th Amendment Center for Law and Democracy. She was in the Supreme Court gallery during oral arguments in this case. Sherrilyn, it's just an honor to have you on the program. and first let me just say I feel somewhat sheepish giving a little spiel before you because you've forgotten more about the 14th Amendment than I've ever known.

So let me just turn it over to you and say what is your takeaway from today's decision? 

Chris, first of all, thanks for having me, and second of all, that was an excellent spiel, on the 14th Amendment. you, you hit the high notes. Yes, the decision in this case came out the way it should have come out, but first of all, it came out the way it should have come out last year when this case was Trump versus Casa.

As you'll recall, the Supreme Court then used the, that case to address the issue of district courts, granting and ordering nationwide injunctions, something they've long wanted to get at. and that required- ... the refiling of a new case as a class action that became Trump versus Barbara. What I mean to say is that the court has slow walked this.

this was a case grounded in the actual words, not the penumbra, nothing that they had to interpret, the actual words of the 14th Amendment and an over 100-year-old precedent by the Court itself, which as you pointed out, has never been, uh, broken or undermined in any way, and they took this long. this is not just the Court deliberating and going back and forth and taking this long.

This is the, the Court allowing space to develop for the idea that this was a legitimate argument, for the idea- ... that this was a legitimate claim- ... when as you say, this was a bit of constitutional gaslighting. But every time they do that, they give strength to the idea that they are making legitimate arguments on the right about things like birthright citizenship.

So first of all, to sit there today and have the decision come out the way I wanted it to come out in terms of the, the judgment, but have it come out after over a year is just absurd, a year and a half of leaving the country, confused- ... about the most important thing. Who's an American? So I just thought that was grossly irresponsible.

secondly as, as I think you also were pointing out, th- this case was not unanimous. This was, should have been a 9-0 decision. This was a slam dunk. It wasn't. it was a, 5-4, maybe 6-3, decision, and it matters. It matters that this was a split decision because once again, it gives legitimacy to the idea that birthright citizenship can be overturned.

the fact that there was th- there are these dissenting opinions from Justice Alito, Justice Gorsuch, and Justice Thomas, some of whom joined one another, but each of whom felt they needed to write their own dissenting opinion, and then a concurring and dissenting opinion from Justice Kavanaugh, who agrees with the judgment, but, and this was very obvious at, oral argument as well, Justice Kavanaugh, who loves the world of politics, believes that Congress has the right to do what the president tried to do.

The president can't overcome birthright citizenship by EO, but Justice Kavanaugh believes that by statute Congress can. And that little space was important for him to leave to the political process, and of course, earlier today, we heard Trump already in, announcing his intention to exploit that space.

I think it’s important for people to understand just one big-picture point here, which is that we have before the Supreme Court this decision about trans athletes’ participation in sports, and the court is making a ruling on both Title IX, which is the federal law that prohibits sex discrimination in education, and the Equal Protection Clause. And, of course, this is a precedential legal system. if the court is offering a constrained reading of these statutory protections and constitutional protections, it’s going to impact everyone, not just trans people. And I just want to start with that.

And then, on the Title IX piece of the ruling, with sports, Congress passed an additional statute called the Javits Amendment, which does give a lot more leeway when it comes to the ways in which sports can be regulated. And the court confined its Title IX ruling to the context of sports and, in essence, said that if we accept the premise that sex means sex assigned at birth, that this is a potentially reasonable way to manage the context of sports, which are zero sum. It’s a very narrow Title IX ruling.

On equal protection, we have the split in the court, in essence, saying that it doesn’t violate the Equal Protection Clause of the 14th Amendment — again, we’re dealing with the 14th Amendment before this court — to exclude categorically trans women and girls from women’s sports. And that is obviously a devastating ruling, but, again, very much cabined to the context of sports.

Put this into the broader context of intensifying attacks against the trans community and other decisions by the Supreme Court.

Yeah, I think we have to understand the way in which sports, in particular, was being used as a way to vilify trans people, with two ultimate objectives, both from the Trump administration and from states around the country. The first is that there is an effort, that we’re seeing escalate, to push trans people out of public life, out of our schools, out of our workplaces, and sports was hopefully going to be the wedge that conservatives used for a broad legal ruling that legitimized those efforts. And also, especially from the Trump administration, we’re seeing attacks on trans people and on immigrants as part of the administration’s central goal of expanding executive power and increasing the legitimacy of the Trump administration’s authority over every aspect of our bodily autonomy and everyday life.

I want to turn to one of the plaintiffs in the case. This is Becky Pepper-Jackson of West Virginia speaking when she first filed her lawsuit. At the time, she was just 11 years old.

I first tried out for a school sport my sixth grade year for cross-country. Everyone in my family is runners. So it was nice to get, help from them. I originally wanted to try out for the long-distance team, because that’s what I had known and love from cross-country and running with my family. But my coach told me that if I were to just go for long distance, I wouldn’t have made the team, because it was much more competitive during track season. So she encouraged me to try shot put and discus, which, as it turned out, I really loved.

Being able to compete alongside my peers was really fun for me, because it taught me teamwork, I made a lot of friends, but, most of all, I just had fun. And that’s all I wanted to do. When my mom told me about the fact that I wouldn’t be able to play the sports that I love, I was devastated. I asked my mom what my options were. And they said that we could talk to the ACLU and Lambda Legal. And that’s when we filed our lawsuit with them.

Becky Pepper-Jackson is now a 15-year-old high school sophomore. She recently won first place in the shot put at the state high school track and field championships and came in fourth in a discus competition in May. The state governor criticized her win, writing on social media, quote, “The state track and field Championship confirms the fundamental unfairness of letting boys co to. If you can respond to who Becky is and the significance of this, and this issue of the focus on going after trans athletes? I heard Illinois Governor Pritzker yesterday saying about the Supreme Court ruling, “We have three trans athletes that this a

Yeah, we’re talking about an incredibly small number of athletes. There is Becky in West Virginia, and there’s one athlete in Idaho. So that’s two people. And again, Becky was 11 years old when she filed her lawsuit. She transitioned before she ever went through puberty. In 2021, when that lawsuit was filed, the rhetoric was very much about this unfairness was about going through an endogenous, typical male puberty. guess what: Becky never went through that puberty. Becky has all the typical characteristics of someone assigned female at birth. And she was terrible at running. She could not make the team and was told, “You s her friends.

And as we wrap up, can you talk about the other athlete, Lindsay Hickox in Idaho?

Lindsay Hickox also — she wanted to play on a club intramural team in college. We’re talking about the least competitive context you could imagine, and she just wanted to be a part of her collegiate experience. Both Becky and Lindsay just wanted to be part of teams, and here we are, demonizing them, when we have serious problems in this country.

where do you go from here, Chase, with your work?

We continue — we continue to fight. Look, these are devastating rulings from the Supreme Court, both this term and last term, and yet, in the lower courts, we’re still achieving important victories that are delaying some of the most egregious harms from the Trump administration’s attack on trans people. in and out of the courtroom, we keep fighting.

But we need people to understand that their freedom is bound up in ours. These rulings will affect them, too. And if we aren’t mobilizing together, then we’re going to get these constrained interpretations of our civil rights protections, and ultimately that’s going to serve the Trump administration’s objectives to ultimately make all of our lives more constrained and less free.

what Justice Alito and this really radicalized right-wing majority did was say, “Because we think that we shouldn’t be able to say anything about partisan politics, we’re not just going to create a loophole. We’re going to create the sunken place where, essentially, any politicians who are controlling the politics of a state can just say, ’We’re not discriminating. We just want to win. And we will win if Black people can’t have a district where they have the ability to say who leads them,’âsolve — create solutions to problems we all share, they’d rather just figure out a way to stay in power. That means state house races. That means school board races. But it also means who leads us in this country and whether or not we have a Congressional Black Caucus, who makes arguments for civil rights, but also for things like access to healthcare, or a Latino caucus, where

Maya, the principal provision in the Voting Rights Act is Section 2, which this ruling has effectively eviscerated. If you could explain what Section 2 calls for?

Yeah, and that’s what I was just summarizing, was basically what Section 2 says. first of all, let me just say this, because especially not just for a global audience, but for a national audience, the context in which Representative Sewell said this is a decadeslong fight to take away our rights and our ability to have leaders who look like us and who represent us, and that is that this Supreme Court said — first of all, took away Section 5 of the Voting Rights Act. This is a section that said, there has been so many shenanigans in blocking people of color — Black, Latino, Native American, Asian — from being able to vote, that we need a provision that says you have to get preclearance. If you have a long history of racial discrimination in this area, you have to have the Department of Justice say it’s OK how you draw your electoral map or how you design other systems around voting, like early voting systems or where you have polling sites. And when this Supreme Court in 2013 said, “You know what? We’re going to say you haven’t — history has changed. We’re doing such a great job in the United States. You don’t habecause we just had barrier after barrier thrown in our way, including on how maps were drawn. That means we have states that aren’t representing the real population of those states.

that has the effect of making it harder for you to have a real opportunity as a Black community, as a Latino community, as a Native American community, to say who leads us, to participate in the process of voting. If it impacts you and it is clear that it impacts you, then we’re going to say it’s not OK. We’re going to say it’s discriminatory.

What this Supreme Court said is, “Really hard to prove intent. In fact, it’s so hard to prove intent, that we’re going to say, even though Congress said you don’t have to show that someone hates you, you don’t have to show that any politicians are saying, 'We just don't want Black people voting,’ we’re going to say it’s fine to prevent large numbers of Black people from being represented, or make it harder for large numbers of Latino people to get access to a poll, or Native Americans. We’

when they did this yesterday, what they were saying, and what Justice Kagan in her dissent said, is, “Y’all just giving them too, and started doing it. But it’s just creating a new kind of civil war about who wants to have our votes. And if you’re 

The New York Times reported, and this is in terms of the midterms coming up later this year, that hours after the ruling, Florida’s Legislature approved a new map that could give Republicans as many as four new seats in the state’s congressional delegation, and other states are expected to follow. If you could talk about the implications of that?

Yeah, this is — this is why this opinion is a devastating blow, because it has literally — states have been organizing around this for a while. And as we know, Donald Trump asked for states, like Texas, other states, to rig their maps to guarantee an outcome for Republicans so they could hold on to the U.S. Congress, to the House. And it was blatant, right? But what that means is you go for people of color. You go to draw maps that we call either packing or cracking communities of color. We’ve got racial segregation. We’ve got communities that are majority people of some kind of color — they’re not without some diversity, but where there really is a large segment of people who live near each other, have shared interests.

And Republicans started preparing those maps — in some instances, were already passing them. That’s why we had this lawsuit in the first place. And then, as we have seen, they were just waiting for permission to say, “It’s politics. It’s partisan

By the way, let’s remember, for many in your audience may not remember this, after Barack Obama won election in 2008 and as we were approaching the 2012 elections, we saw, all of a sudden, claims that there was voter fraud, that undocumented immigrants were voting, that we had to make it much more difficult to prove you had the ability to vote lawfully. And what that did was disenfranchise a lot of people of color.

But we had — we had Republican — Republican Party head in Florida, Republican Party head in Pennsylvania saying that quiet pa or Missouri, any of these states, saying, “Game on. Now we’re going to use this to make sure that large segments of our po

This was very bad. And I think it's important, I actually don't leave out the birthright citizenship case because to understand how bad this term was, you can't just count up the decisions.

You have to also look at the how, how the court decided these cases. what was the split if there was a split, and what were the, the, I can't think of the word, the license that the court took to get to the decisions that they made. And actually, that's what, to me, takes this term really off into the stratosphere.

Some of the decisions are catastrophic and terrible, but much of the reasoning of even the decisions that seem to be okay demonstrate that this court has separated itself from any sense of the need for consistency, for respecting stare decisis, for judicial restraint, for discipline, for unanimity, all of the things that we think of as virtues of judicial decision-making that would cabin, judges from being able to exercise the kind of extraordinary power that they do in an abusive way.

How about you, Niko? 

Yeah, I agree with Sherrilyn that in order to understand how bad this term was, we need to have a sense of, what should the Supreme Court be doing in the first place. And the book that I've written with my colleague Daphne Renan, called Supremacy, goes through the history of the court's power as well as what did people think of it, from abolitionists through the Civil Rights Movement and to the present.

And we drew a lot of inspiration from the Congresses that wrote the 13th, 14th, and 15th Amendments after the Civil War. And one of their arguments at the time was that the role of the Supreme Court is to enforce federal law. It is not to defy federal law. The people who wrote the 14th Amendment wanted federal courts to go out and enforce that amendment against states or Presidents or anyone else who would defy it, but they did not want the court itself interrupting or striking down Congress's legislation.

And I think that understanding, that the point of the federal judiciary is to enforce Congress's understanding of what the Constitution means, is a good way of understanding the cases this term. it actually maps on pretty cleanly because a lot of the cases that, people really like that the Court has done involves the Court enforcing federal legislation.

So the Learning Resources decision end of last year that enforced the federal law governing tariffs and said it did not permit the president unilaterally to impose tariffs on the entire planet, the National Guard statute that the Court interpreted to say the president can't just deploy the National Guard where he sees fit, as well as the birthright citizenship case, which, Congress for years has interpreted the Fourteenth Amendment to say everyone born here basically is a citizen.

And when President Trump said no, he was not just defying the Fourteenth Amendment, he was also acting in defiance of these federal laws. But the real damage that the Court has done this year involves the Court taking federal legislation and just saying, "I don't care." So the Voting Rights Act, the most important civil rights statute in U.S.

history, the Court's saying, "Even though we understand what Congress meant by that statute, we're just gonna interpret it differently and say it can't be interpreted the way Congress thinks." So now we have this crazy system where states are passing laws trying to make it as difficult as possible to vote, and Congress has said, "Don't do that," but the Court's acting as if that statute doesn't exist.

Same with statutes protecting federal officials from being fired, statutes that prevent people from just spending billions of dollars in elections. The Court has just torn all of these really important federal statutes down. And so we're entering the midterms this fall in a really dangerous place where all of these laws Congress has passed to protect democracy, laws that Congress has thought was constitutional, laws that date, hundreds of years, all of these laws are just now sitting in the library stacks as if they don't exist because five or six justices this term said they don't like them And the constitutional interpretation that the court is applying is not consistent, it's not objective, it's really policy-driven.

and that's the real danger of judicial supremacy that this court has really unleashed this term. 

Steve, anything to add? 

Just really quickly, I think the common themes in what both Niko and Sherrilyn said, first, denominators matter. And so for all of the folks out there on the right and who try to defend the court who say, look at birthright citizenship, look at tariffs, look at the National Guard case," that's three in a term in which, I can count 25, 30, 35 rulings that I think were deeply problematic from a institutionalist perspective, from the perspective Niko mentioned.

one, let's do basic statistics again. But two, to pick up on Niko's last point, there's a shamelessness to how the court behaved this term that, I'm sure lots of folks thought they felt in prior terms, but that I, you know, almost like they weren't even trying to persuade people who weren't already persuaded anymore.

And, the best example of that to me is the sort of Complete lack of humility in Chief Justice Roberts' opinion in the Slaughter case about just how big of a hole the Cook case handed down at the exact same moment blows in the Slaughter case. So in Slaughter, the court says the president has to have all of the executive power, period, full stop, end of story.

Therefore, he can fire everybody. And at the exact same moment, the court says, "Oh, but the Federal Reserve is different for all of these interesting, questionable, dubious historical reasons." you don't have to be a law professor to understand the logical tension there, and yet John Roberts really didn't try very hard to persuade anyone that was a reasonable distinction.

So you multiply that, right? One other flashpoint, just to show where we are, the Texas redistricting case, which got run over by Callais and Alabama, the court writes five paragraphs in November or December to justify freezing a Trump-appointed district judge's 200-page decision about why Texas had acted with, racially discriminatory intent in how it redrew its maps last summer.

And the Supreme Court, first of all, pauses that with five paragraphs, only two of which were analysis, and then on the merits in April says, "Oh, now that we have the full case before us, we're just gonna summarily reverse the district court for the reasons set forth in our, five-paragraph scribble in December."

it's the hubris of this. It's the shamelessness of this. And, it's not the bottom lines. It's really just the behavior of the justices after Callais rushing to put all those decisions into immediate effect. That to me is what makes this term different from the immunity term or the Dobbs-Bruen term or other catastrophic terms of the last 15, 20 years, because it's almost like they don't think they have to try to convince anyone anymore that there are principles behind these decisions.

you talk about this calculation within John Roberts, and there is a calculation, you call it an orchestration that's happening external to John Roberts, but he's a part of this ecosystem, and that's the orchestration of specific and strategic Supreme Court cases getting to the Supreme Court in the first place so that the conservative legal movement can get these Wins at the Supreme Court from the federal judiciary that they are not able to attain politically.

You give an example, multiple examples. One example our listeners will be familiar with is Loper Bright, the case that of course did away with the Chevron doctrine that said courts should defer to federal agencies when agencies are interpreting the power that is given to them by Congress. the John Roberts-led conservatives at the Supreme Court doing away with Chevron doctrine in Loper Bright and saying, "No, the court actually can step in and define and limit federal agencies and their power to do this."

I bring up this example because you don't just talk about the holding in Loper Bright, but you talk about the orchestration that brought Loper Bright and many other cases to the Supreme Court in the first place so that John Roberts can give the argument a big kiss on the lips and the green light and all of this stuff.

And so again, John Roberts, a calculating person in his own right, but can you talk about his role or his participation or his relationship to the actual case orchestration as well? 

Yeah, that is a really great question, and there are so many layers to it. And so what you have is a situation in which, just to call back to this period before John Roberts was nominated, there had been this effort within the Federal Society, which was led and co-led by Leonard Leo back then and still is co-led by it now, where they wanted, quote, "No more suitors."

No more suitors. What does that mean? It means that they thought that they had made a mistake in appointing someone who was gonna follow precedent to the Supreme Court, and they didn't want any more suitors. They wanted ringers, people who were going to be on that court and use that power to advance this right-wing agenda that the Federalist Society was being funded by billionaires like Charles Koch and others to advance.

And so when you look at that decision in Loper Bright, the decision to take down the Chevron doctrine, that Chevron doctrine was something that was embraced by a Republican-dominated court in the 1980s- That's right ... for the Reagan administration to say that it is the job of judges to defer to the agency expertise of these federal agencies on matters unless, certain conditions were met.

Because under our governmental system, we have Congress passing statutes that the administration is supposed to execute, and then it ha- we have agencies that have developed deep expertise, particularly scientific expertise- Yeah ... that the courts d- just don't have. And then they propose rules that there's public comment on based on those s- scientific findings, for example, and then those rules go into effect.

And in this instance, this precedent was at, Chevron was around for more than 40 years. But starting in the, about 10 years ago, there was a particularly concerted effort to try to take down Chevron that was just as, the court's still at a five-four majority. Scalia was on the wrong side of this issue, surprisingly, because he had been in the Reagan administration, had supported this precedent.

And a really telling thing happened, which was reported by ProPublica, which is that at right around the time of Scalia's death, you have Justice Thomas going to an all-men's retreat, the Bohemian Club, where he was at this retreat with David Koch, who was then alive. It was at Harlan Crow's, perch within that Bohemian Grove meeting, and he was telling the men there that he thought he had won Scalia over to overturn Chevron.

So he's telling billionaires that they were about ready to overturn Chevron, basically. Yeah. 

Why would that come up in conversation? 

Yeah. Imagine. 

Yeah. 

That fireside chat, right? Yeah. And so that's happening. And so at that moment, there was a guy who was a law professor. He basically said, "There's no way the court is going to be overturning Chevron.

It's been cited tens of thousands of times. It helps maintain the consistency of the law." And He didn't say this, but he thought it was impossible. But it wasn't impossible because the right-wing legal movement was poised to take advantage of this change. And then when this orchestration happened to block O- Barack Obama's nominee to the Supreme Court, install Neil Gorsuch, who c- hails from this same, quote, "tradition"- Yeah.

Yeah ... 

to push through Brett Kavanaugh, to get Amy Coney Barrett on, as people were voting Trump out of office, suddenly they really do have the votes to take down Chevron. And of course, these groups emerge to make this case, to make these claims. And in the case of Loper Bright, both aspects of that litigation were bankrolled by Charles Koch's fortune.

Of course. So there were two main cases that were teed up for the court to decide which case to take, took them both, and the other case was called Relentless. Both cases were fueled by lawyers where Charles Koch had spent millions of dollars to fund this litigation and presented as fishermen, you know, who didn't wanna have a fishing inspector- Yeah

on their boat. Yeah. But it was really about much more than that, and we know that in part because of the impact of the decision, but in part because Charles Koch's own law firm, Quinn Emanuel, talked about the previous decision Which had created the major questions doctrine, which again, was funded by Charles Koch, that decision against the EPA among others.

And they talked about how it was a sea change to allow industry to attack any major changes, but they couldn't attack them all. Chevron's still, Chevron was still in the books, and so they needed to take down the Chevron doctrine and this deference. And so when we calculated how much money has gone into these, this amicus flotilla, as Senator Whitehouse has described it on the floor and in hearings, it's millions of dollars have gone- Yeah

into building up this network to bring cases to court. And this court, as and your listeners know, almost its entire docket is discretionary. Means it doesn't have to take those cases. Supposedly, it, would take cases where there's a circuit split and has to clarify the law, but that's not what's happening.

The Roberts Court is creating sort of its own legislative agenda on an annual basis of which cases it wants to destroy, which precedents it wants to destroy, and this was a case that it wanted to destroy that precedent. And it, in some ways, that amicus, what I call it kind of an amicus racket. It's not illegal what's happening, but a lot of these law firms are getting very rich, sometimes directly from money from nonprofits.

So the billionaire funds a nonprofit. Yes. The nonprofit hires the big right-wing law firm. The law firm gets paid hundreds of thousand do- dollars per brief. They get to declare victory, but when the case is accepted, almost in every instance they're gonna win. So it's a done deal. It's the fix is already in.

When they take the case, they have the votes to destroy that precedent, and you can see this play out. So for example, when Scalia died, there was a case pending before the Supreme Court. It was called Friedrichs versus California. It was an attack on labor rights, and it resulted in a four to four decision.

So it meant that the court did not overturn the 37 or so years of the Abood precedent, which allowed unions to negotiate for all the workers in their workplace and not have free riders who would benefit from being part of those benefits and wages without paying any fees. And so the court rules there's, four-four decision.

So then a year later, they take up another case- ... that was just conveniently in the wings waiting to come forward. Yeah. the Janus case, and which then by the time Gorsuch was confirmed, they had the fifth vote to destroy almost 40 years of legal precedent protecting those union rights and the power of unions.

So they just waited till the next time so they could take that case up again. that in affirmative action. At certain point, they don't have the votes to do it, so they wait, wait until they have the votes, then they take it up, and then that time when they have the votes, they take out affirmative action in college admissions.

And the related point is when John Roberts was trying, in my view, to stop the United States Senate from subpoenaing Harlan Crow And Leonard Leo investigating what the newspapers, what ProPublica and others had uncovered about the gift to Clarence Thomas. Roberts announced on the eve of that subpoena vote, this was just a few years ago, "Oh, no, there is a ethics code for the court," and all the justices have signed it and said that they comply with it.

Which is absurd given the fact that if that's what it means, it allows Clarence Thomas to take all these gifts. But when you read that code, it's lower. It sets a lower standard than for all the other federal judges in the entire country, including a provision in there that says that they can sit on a case even if they have a conflict, if the vote is needed to resolve it.

And so I don't- there's no exception for that in the rest of the world. oh, you have a huge conflict- So 

if you have a particular incentive to- Yeah ... decide one way or another on a case, then you can be and should be the deciding vote, actually. 

Yeah. 

Yeah. 

Yeah. Versus just- It's 

wild ... 

leaving, yeah, leaving the law as it is.

And so I think that's a big tell of John Roberts and his agenda. 

Yeah, it's been quite of terms and quite a fi- a, a five years, since Amy Coney Barrett replaced Ruth Bader Ginsburg.

That's really when I start the era of this current sadness, and oppression, and that is the word that I would use especially for this, about to be completed term. It is oppression. It is the Supreme Court becoming the enforcement body of the Trump White supremacist regime. What we have seen over and over again is that Trump lacks the muscle to force his views upon an unwilling country without the courts.

That's actually not new for authoritarian regimes, right? They seek to control the courts in order to give their policies the imprimatur of legality. Hitler did it, right? Like this is a thing that constantly happens, and so we shouldn't be surprised. We shouldn't be, hopeful that the courts are some kind of last line of defense.

They are actually often the first over the wall, when it comes to oppressing people, and the Supreme Court has done that repeatedly, this term, not just in its big decisions. 

I want to talk about a specific example of that 'cause we just got a ruling that, that really stands out in this regard.

The... So this is Mullin v. Doe. This is a landmark immigration decision that came down last week, and it essentially allows the Trump administration to strip hundreds of thousands of Haitians and Syrians of their, who are currently legally in the US, of something called Temporary Protected Status or TPS it's called, and this is a policy that grants people safe harbor in the United States if they can't safely return to their country of origin.

The details of the case a- are worth talking about in, in, in the vein of what you're, what you've just said is, 'cause the plaintiffs had argued, among other things, that the administration revoked TPS specifically for Haitians because of their race, which is an unconstitutional thing. And I am struck by the argument that seems to be playing out between Samuel Alito's majority opinion and Elena Kagan's dissent.

Explain what they're arguing about. 

Yeah, so to get something out of the way, just because, some of your listeners, might have Republican family members or friends, and those family members or friends, the first thing that they will say is, "But temporary means temporary, so of course we can get it rid of, 'cause it's temporary.

What does- Temporary protected status is a temporary thing. 

And, look, yes, temporary means temporary. If law was easy enough that all you needed was a dictionary to understand it, then all these law schools should shut down, right? yeah, I unders- I can Google temporary too. I know what it means.

Yes. The law is actually more complicated, and the, at the heart of the issue, there is a process for ending temporary protected status- ... that the Trump administration didn't follow. And then there's this other argument that even if the administration followed the correct process, he still can't revoke it, because you can't make policy based on unwashed racial animus, right?

using racism as a motivating factor for your policy is unconstitutional. And that is the heart of the debate between Alito and the majority and Kagan in dissent. Alito says, "You can't prove Trump is racist, and since you can't prove that he's racist, we can't say that his policies were motivated by racism."

And Kagan says, "Interesting, Sam. This man you're claiming cannot be proven to be racist, you can't even quote him because it's too disgusting. the things that he's actually said are so disgusting that you can't even quote him, in your opinion, defending the man. But you know what, Sam? I can." Yeah. Right?

Yeah. And then Kagan goes through everything Trump has said about Haitians and their, protected status. And for most of your listeners, you're gonna remember these as some of the lowlights of the Trump administration. This is the Haitians are eating dog stuff. This is the, the they're dirty, filthy people.

This is they live in an S-hole country, and they're poisoning the blood of our country. And then he revoked their immigration protection. So that's at least, to use a turn of phrase, a colorable argument that the president was motivated by unconstitutional racial animus. and that was the basis of Kagan's dissent.

And so when you lose that case, what the Supreme Court is essentially doing is not just affirming Trump's racism, but actually endorsing it. Because if you're saying that the kinds of things that Trump says, that even this level of vitriol and hate does not trip the constitutional prohibitions against racial animus in policymaking- then what does?

I ask the question to, to Republicans all the time. Does the man literally have to come out here and say the N-word? is that the... Is it lit- Do we literally live in a world where there is one and only magic word? And even if he says it, is that enough for Sam Alito? Because I don't think it is.

And that just brings me to, it feels like the latest in a long series of things that this court has done, as you say, over the past five years, that just how far they'll go to paper over whatever it is Donald Trump wants to do. 

So I fight with people on the left about this all the time, Kai, and the way that I put it is y'all still think that arguments matter There are people on the left, there are institutionalists, there are good liberals who still think that having the right facts matters in front of this Supreme Court, and there is absolutely no evidence anymore that arguments matter.

There is absolutely no evidence anymore that law matters. There is no evidence that precedent matters. in the Louisiana versus Cali case, in the voting rights, case that was just c- cited earlier this term, the Court overruled a precedent that the Court made two years ago. And until liberals and Democrats get that memo, they will stay losing.

The only way to change the opinions of the Supreme Court are to change the people on the Supreme Court, because making a good argument to them no longer matters at all. 

 

We've just heard clips starting with

All In with Chris Hayes warning that the one-vote margin in Trump versus Barbara lends dangerous legitimacy to a case that should have been a unanimous slam dunk.

Democracy Now! detailed how conservatives used sports as a wedge to push trans people out of public life and shrink Title IX and 14th Amendment protections that guard everyone's civil rights

Democracy Now! also spelled out how the Supreme Court gutted Section 2 of the Voting Rights Act, letting states discriminate against Black and Latino voters as long as they call it partisan politics.

Amicus counted 25 to 35 problematic rulings this term, arguing the court has stopped even trying to persuade anyone that principles guide its decisions.

5-4 described the "amicus racket," where billionaires fund nonprofits that pay right-wing law firms hundreds of thousands per brief to bring cases the conservative justices already planned to win.

And Stateside traced how the Supreme Court, since Amy Coney Barrett replaced Ruth Bader Ginsburg, has become an enforcement body for Trump's agenda

And those were just the top takes, there's lots more in the deeper dives sections.

We're still going through a tough time financially so, if you haven't signed up yet but are thinking about it, just know that the emergency hasn't passed and we could still really use your help. Don't worry if you can only afford a few bucks a month, it's the collective contributions of people stepping up that has always gotten us through tough times like this.

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We're also working on reincorporating audience feedback into the show. If you want to encourage others to leave messages, start by becoming the change you want to see in the world.

So, here's today's question.

When and where did you learn what your rights actually are in some particular category, or generally? At work, in a rental, in the voting booth, over your own body?

Tell us about a time somebody set you straight on one of those. Who was it, what did they say, were they right? If nobody ever did, you can tell us that too.

We don't have a voice message today, but we do have a comment that CuisineQueen left on Patreon, responding to the question we asked about making the harder choice and stepping away from the default option when something else lines up better with your ethics, or the quality you want, or both.

CuisineQueen writes,

"Bookshop.org, pick your local bookstore to benefit,"

On that note, we partner with Bookshop.org and support their mission. You can use our affiliate links to both Bookshop for physical books and Libro.fm for audiobooks, found in our show notes. Continuing...

"or any other bookseller app, Libby app for libraries, all you have to have is a local library card to get books not available where you are."

I'm also a big fan of Libby and get most of my books from the library that way.

Continuing.

"And you can use Amazon search if you can't find items you want by search engines, try to avoid going directly to the first page fed to you by Google, all ads.

Then, go direct to manufacturers website or Etsy AND finally the Original seller online, eBay, has so much direct purchasing!! Go there as much as possible, but check reviews and analyze sellers, it is truly a self-correcting system, higher stars of verified buyers is not as likely to be a scam as Amazon's paid reviews are."

I very rarely purchase anything on Amazon but am always amazed at what a festival of scams it looks like whenever I land on that site. How is this the best experience they could come up with? Interesting to hear that eBay might now be less scammy than Amazon.

"I also try to use duck duck go mostly for searches."

I used to use Duck Duck Go but recently upgraded to the paid search engine, Kagi, K-A-G-I, that breaks the ad-revenue business model/search quality problem at the source. Finally, she concludes...

"Steer your own buying power to people that operate online, and locally wherever you can, with ethics.

Local farmers matter a LOT for food, support local markets and small storekeepers where you live. It's YOUR economy, not Walmarts' welfare-dependent employees filling the Walton's money hoarding. In my opinion, resist all of them."

Thanks to CuisineQueen on Patreon for that message. I have also been posting our discussion questions on our socials and community spaces like Patreon and Discord so join us there and weigh in with comments if leaving voice messages isn't your thing.

But, if you have a question or would like your comments included in the show you can record a voice message - re-recording until you're happy with it - by tapping the link in the show notes,

As for today's topic,

There's a lot of energy building behind the idea of court reform. Elie Mystal has been making waves with his recommendation to expand the Supreme Court to 29 justices and Democrats have been introducing bills to apply term limits and regulate the nomination cadence. One every two years, every presidential term gets two appointments. It's simple, widely supported, and doesn't encourage anyone to wish well-timed death upon any sitting justices. These are all ideas geared toward turning down the temperature on the partisanship of the court, and roughly two-thirds of Americans already back term limits so this is a real movement, it's not a fringe conversation.

Nor is it the only conversation worth having because the conservative stranglehold is interlocking across the government. The fig leaf the court uses when blatantly disregarding the intent of Congress in their rulings is that Congress itself can always choose to write new legislation to supersede the court's ruling which would come back around for another review. That's how the system is designed to work but in our era of hyper-partisan gridlock and the wild overuse of the filibuster, this is little more than a wink and a nod.

There's a seed of truth there. Congress could, in theory, write and pass new legislation and that's what used to happen about a half dozen times a year under both parties several decades ago but it's since slowed to a trickle.

But it's not for lack of trying, Democrats continue to reintroduce legislation they have on the shelf to do exactly that on some of the most important issues for democracy. The John Lewis Voting Rights Advancement Act to boost the robustness of elections, and The Disclose Act aimed at rolling back the billionaire-corrupting of elections.

These bills don't fail on the merits, and they aren't blocked by the Supreme Court. They're blocked by the filibuster and the Republican Party wielding it in a way completely out of step with historical norms.

It used to be rare and dramatic, then it was reformed back in the early 70s so that it could still operate to block a bill but be less of a nuclear option by allowing other Senate work to proceed while the filibuster was being invoked on a given bill. This was the two-track strategy that invented the silent filibuster where a senator can basically just send a memo to invoke.

After that change, the use of the filibuster certainly went up, but it didn't get wildly out of control until the hyper-partisanship of the modern age fully gripped the Republican Party. The GOP started using the filibuster as a completely routine act during the Obama administration in an explicit attempt to sink his presidency by not allowing it to function.

To give a sense of their mentality, John Boehner, the GOP leader in the House in 2010 said about Obama's Affordable Care Act, â€nd Mitch McConnell was quoted the same year explaining the Republican governing strategy in the senate, "The single most important thing we want to achieve is for President Obama to be a one-term president." McConnell then hedged that if Obama turned out to be a moderate like Clinton then they could work together but that was amid the loudest voices in the party calling Obama a communist so there was never really any threat that he'd feel obligated to compromise.

It was during this era that the political media started talking about Senate votes as though it was by law or constitutional design that everything required 60 votes in order to pass. That's only true due to abuse of the system. This new normal is less than 20 years old and should be thought of and talked about as the undemocratic aberration that it is.

Between the Supreme Court having been stacked with ideologues and the Congress having been crippled by the misuse of a Senate rule intended to encourage debate, not act as a minority veto, the Republican Party has put our democracy in a vice and continues to crank the handle.

If you agree that we need court reform but worry that it would never pass the Senate filibuster, you're right, which is why filibuster reform will inevitably have to come first. In the past, this discussion was mostly had in black-and-white terms, keep or abolish, which could feel extreme or even dangerous in an age of rising fascism. There was also the idea to carve out specific areas where the filibuster wouldn't be allowed, like with judicial appointments. But the idea that's been gaining steam and, I think, deserves more attention, is to go back to the old talking filibuster.

I think there would be a lot of benefits to this strategy, but we can start with a basic one. Any average person in the country who wants for both our democracy to function and for the traditions of the country to be maintained, not necessarily my perspective but one many people hold, should be able to support re-implementing the talking filibuster. So that lowers the bar by making the reform feel far less radical than outright abolition.

The more obvious benefit is attaching attribution to individual people or a party as a whole when they decide to block something. Right now, the filibuster costs nothing and is carried out invisibly. Forcing people to get up and speak changes that dynamic entirely and brings attention to both the policy being blocked and the people blocking it.

The old talking filibuster also blocked all work in the senate from proceeding which brings an even brighter spotlight and intense scrutiny, like a mini government shutdown. It's possible that they could bring back the talking requirement while maintaining the two-track system to keep the work flowing but either scenario is better for democracy in multiple concrete ways.

There are two things consistently true about U.S. politics, people hate when Congress is broken and the general public is notoriously bad at knowing who is actually at fault for Congress not getting anything done. I think the talking filibuster would help with both by making obstruction something tangible that people could see on their news feeds with the faces and names of people attached.

This is a simple rule change that can be implemented by the party controlling the senate so this is the lowest bar to reform that exists right now and Democrats nearly did it in 2022 so supporters should keep the pressure on for the next opportunity.

And, obviously, this change would be applied to both parties, so there's not a blatant partisan benefit to this. It would merely favor whoever is blocking something that the general public would want to have blocked and disfavor anyone blocking something that the general public would want to pass. If the talking filibuster has a partisan effect, it'd only be because, in this day and age, the favorability pattern mostly runs in one direction. Democracy is popular and only the Democrats are supporting genuinely pro-democracy policies like voting rights, reducing the corrupting impact of money in elections, and court reform. Not to mention progressive policies like taxing the wealthy and providing universal health care that are also wildly popular.

But that partisan advantage need not always be the case. If the path to blocking legislation requires making oneself identifiable, it would have the effect of forcing politicians to more closely align with the actual desires of their constituents which would be good for democracy.

Imposing term limits on the Supreme Court is strongly popular. Attempting to pass a law to bring that about would require filibuster reform. Re-implementing the talking filibuster would invite all the Republican objectors to explain why they object to term limits, in addition to the rest of the court reforms that are needed.

If they're able to continue their obstruction silently and anonymously in the dark, they will continue to do just that in perpetuity. If they are made to show their faces and speak publicly in the light of day, highlighting to the country exactly what they oppose, then the people will again have a fighting chance to know who deserves their support at the next election and who's been actively blocking progress and needs to be shown the door.

And now, we'll continue to dive deeper on 4 topics today. First up;

Section A, THE RULINGS Followed by Section B, THE CHARACTER OF THE COURT

Section C, ORIGINS, HOW WE GOT THIS COURT

And Section D, REFORM, WHAT DO WE DO

Congress has traditionally created agencies with some measure of independence, not total independence from the president or other parts of government, but with some measure of independence where they thought it was particularly important that the agency have some measure of impartiality, some l- level of insulation from the political process.

Even though they will ultimately be accountable to a political official, they need some level of insulation to perform what have been called quasi-judicial or quasi-legislative functions in which they're exercising some kind of expertise or some sort of quasi-judicial function. 

The court also did push back on presidential authority in the tariff case, though, correct?

Yes. It's not a matter of the president's independence so much, but they did limit the president's really incredible authority to exercise certain emergency powers. In the tariff decision, the question at issue was whether under the International Emergency Economic Powers Act, which, known to its friends and family as IEEPA, the president could impose tariffs on foreign imports.

What IEEPA does is says that during a declared national emergency, then the president has really broad authority to do a long list of things to any transaction which involves a foreign national or foreign country. He can regulate, he can prohibit, he can void, he can compel, he can direct, do any of these long list of verbs to any transaction involving a foreign national or foreign country that's part of the emergency.

Just a really broad authority, and it's in part so broad because it r- has this emergency angle. So what we have in, with President Trump's IEEPA tariffs is he declared an emergency with respect to, I don't even remember exactly how he cabined it, but apparently with respect to the economy and international trade generally and then proposed these broad tariffs across the board.

That seems like it could be a problem, by the way. We've seen this tactic over and over again, dec- the administration declaring some emergency on very flimsy grounds and then claiming all of the emergency powers that go along with that. 

Absolutely. and I draw the court's willingness to draw a line here- they don't review the emergency.

They don't say it's ridiculous. They accept it at face value. But I gotta think at least a partial motivation here is the emergency declaration process has become so flimsy. That's in part also the court's fault, of course, right? That traces back to what I like to call the Supreme Court's original sin in INS versus Chadha, where they struck down the legislative veto.

IEPA originally allowed a single house of Congress to pass a resolution that would have overturned a president's declaration of an emergency under IEPA. Supreme Court said, "No, you can't do that with a single house of Congress. If you're passing a law like that, you have to go through both houses of Congress and present it to the president."

And the Supreme Court struck that down because it didn't comply with the bicameralism and presentment requirements of the Constitution for Congress to pass a law. And instead of striking down IEPA overall, it just removed that congressional check on the president's power. so the president can now, declare an emergency indefinitely, and unless Congress can go through the entire bicameralism and presentment and override a veto, then that emergency is gonna stick until the president says otherwise.

So that's how we got here, of course. But now with this incredibly flimsy declaration of emergency, with the president exercising those IEPA powers in the broadest way possible, even if they're really broad authorities, the, the court was not having it. 

So let's get into a few of the key decisions from this term.

We'll start with campaign finance. So this was a decision that I think flew under the radar a little bit. Why are legal experts paying so much attention to it? 

Sure. the Supreme Court had previously ruled that a political party has a right to make unlimited independent expenditures during a campaign, meaning without coordinating with the candidate of that campaign, and had previously upheld, the idea that they could restrict expenditures in coordination with the candidate.

By a vote of 6-3 in the recent decision, the justices struck down the federal law that limited the amount of money that parties can spend in coordination with a candidate for office. That overturns precedent from 20 years ago, and in many ways just takes the brake off any remaining fundraising limits for a candidate, because even if someone cannot contribute directly to a candidate, they can contribute to a party, and the party can spend an unlimited amount of money on any individual candidate, including by coordinating with that candidate in the expenditure.

Now, money in politics is just, is, an old story in many ways, and this is just an expansion of the problems created by Citizens United and by other cases, in which increasingly any ability by Congress or by states to limit those expenditures are being limited. 

So in terms of the impact on democracy, what we're talking about here is those with the most wealth and the corporations who are seeking future benefits for themselves can give almost unlimited amounts of money to their candidates of choice, and then we can expect that they will have far more influence, in the whatever administration results from investing all of that money in the campaign.

And when we're living in a country with increasing amounts of wealth disparity, it just means that there's even more of a distinction between people who have power and influence in our government and people who don't, which is unfortunately the majority other than the right to vote in the first place.

Yes. I agree with all of that. The amount of money, the, the extent to which money determines who can run for office is just becoming more and more stark. And people without, not just without any money, but people without access to billionaires to fund them are not gonna have the capacity to run for any sort of statewide or national office.

The Supreme Court ruled Thursday in a 6-to-3 decision that the Trump administration can turn back asylum seekers at the border,immigration officers at border crossings to block asylum seekers from setting foot on U.S. soil. The policy is not officially in effect. In fact, it was rescinded in 2021, but the Trump administration asked the Supreme Court to overturn the 2024 appeals court ruling that found the practice unlawful. And the Supreme Court then agreed to hear the case.

The case is Mullin v. Al Otro Lado. Erika Pinheiro is the executive director of Al Otro Lado, the lead plaintiff in the case. She joins us from Mexico City. Talk about the significance of the Supreme Court decision, and talk specifically about the case your organization brought, Al Otro Lado.

first of all, thank you so much for having me today.

We originally brought this case because we documented hundreds of asylum seekers being turned away from ports of entry, and also documented many individuals who were assaulted, raped, trafficked or killed because they could not access protection in the United States. This particular case is so important, and I think that the importance was really minimized by the justices.

iduals cannot set foot on U.S. soil, that they do not have the right to ask for protection at the U.S. border. this was really not about the text of the statute. It was to reach the political goal of ending asylum access at the border reach the political goal of ending access to asylum at the U.S.-Mexico border. He uses a few analogies in the decision, but I think the most apt analogy would be if a police officer were standing outside of a polling place, and the Supreme Court decided, even though he’s pointing a gun at you, and you couldn’t go inside the polling place, you still have the right to vote. it’s just ridiculous. But that, unfortunately, was the decision the Supreme Court.

The practical effect right now is not going to be a huge change, because, like you mentioned, the policy has not been in place since 2021, but the broader effects are really significant. First, it undermines international cooperation around the Refugee Convention. It legitimizes turnbacks for other countries that are engaged in this practice, of which there are many. And it really just solidifies the idea that human beings cannot cross borders to seek safety. And in a time of increasing conflict and climate catastrophe, this will result in many more deaths.

 

And, Erika, can you talk some about how this closure of the border, really, that’s happened, especially in the last few years, has impacted Mexico and people and migrants or refugees arriving in Mexico?

like I mentioned, the Trump administration, starting from the first Trump administration, and continuing into the Biden administration, have hardened the border infrastructure, so that individuals who are in Mexico trying to reach the United States cannot set foot on U.S. soil. They are turned away by U.S. officials at the border. When the Biden administration created the CBP One system, which gave hundreds of thousands of individuals appointments to seek asylum in the United States, there were many — they were all waiting in Mexico. That system was canceled by the Trump administration, and approximately 300,000 individuals who had already registered in the system were then stuck in Mexico.

here in Mexico City, we’ve worked with a very diverse population of refugees who are now applying for protection here in Mexico. Many have received it, but there is a rule in Mexico that you have to apply within 30 days of entry for asylum. a lot of people were already waiting for longer. There’s also very limited capacity here for third-language speakers, those who do not speak English or Spanish, so we’ve been helping those individuals. But I would say that the Mexican asylum system has been overwhelmed, and there are serious safety concerns for individuals forced to wait in more dangerous parts of the country.

And there are also, however, still many people who cross back and forth across the border every day, Americans going to work in Mexico, Mexicans coming to work in the United States, or to shop or to go to school. How has that affected the general transfer — comings and goings on the border?

I would say, after years of living on the border, that it has become more burdensome for people who are crossing for economic or educational reasons. Whenever the United States, or even Mexico, implements a policy that keeps asylum seekers away from the border, it generally will result in longer lines for people who are crossing for other reasons.

But I do want to say that the San Ysidro Port of Entry, which was the initial focus of our litigation, is the largest land border crossing in the world. I think between 50- and 100,000 people cross that border every day. the Department of Homeland Security saying that they don’t have capacity to process asylum seekers, in addition to those tens of thousands of individuals, is really, I would say, laughable, but obviously the consequences are dire.

The court issued a 6-3 decision last week. Their rulings stem from two cases that were argued before them in April. Can you give us the overview of what was being argued and also the role you played?

Yes. As you said, it was two cases involving about 350,000 Haitian TPS holders and about 7,000 Syrian TPS holders, but the question was really a broad one that affects all TPS litigation. It was does the court have authority to stop an illegal TPS termination? No one in the opinion claims that the administration has been following the rules about TPS. They very clearly are acting illegally, but what the Court said, that 6-3 majority, is that it doesn't matter, that courts don't have the power to stop an illegal termination, don't have authority to review the kinds of statutory claims that the plaintiffs had raised in that case.

They said maybe a constitutional claim can be reviewed, but they found, which I think you might have to be a lawyer to work your mind around how you could find this, but they found that the statements that President Trump has made about Haitians are not racist. They're actually policy statements. When he said, for example, that Haitians are poisoning the blood of this country, that was a policy statement.

Wow. Just to put a fine point on that, Jessica, one of the issues that was raised in the Haiti case was constitutional concerns over whether the TPS termination was racially motivated because of statements like that. I think people often also think about comments he made about Haitians in Springfield, Ohio, eating cats and dogs, completely unfounded and certainly found to be racist by many people who heard them. Can you explain what the arguments were for that dimension of the case and why the court rejected those claims?

The court said, which is a real divergence from normal equal protection jurisprudence, that because there was a non-racist reason also provided for ending TPS in this case, that President Trump has made ending Temporary Protective Status program a goal because he doesn't want immigrants to have that protection, that's a non racist reason.

Also, the immigration context in which all these statements were made should lessen the normal way you would look at a statement like that and led the court to the conclusion that these statements that I think the dissent really powerfully called out as very standard racist tropes about filth and disease and criminality, that such statements are not racist. I'm struggling to explain it because I really think for a layperson, it's obvious. What the court did is-- actually, the majority did not mention the statements. They don't quote any of the statements, and they just give a sanitized version of what happened and then conclude that it wasn't racist.

Jessica, it is hard to wrap the mind around how one could hear so many of those comments and hear them as policy statements, but from a powers point of view, was some of what the court was, this conservative majority, deciding simply around expanding the powers of the presidency and what the role of the president has when it comes to determining who is legally able to be in this country.

Yes, certainly, but the normal presumption is, if Congress makes a law, as it did when it created the Temporary Protective Status Program and sets up certain rules for the government to follow, that if the government violates those rules, a court can review it. That's the normal presumption. By turning that on its head and reading the statute instead, really broadly to prevent the courts from considering even whether former Secretary Noem followed the rules, that greatly expands the power of the Department of Homeland Security when it comes to this humanitarian program that was actually designed to restrain the Department of Homeland Security's discretion.

Macollvie, I want to bring you into this conversation because you wrote, I think, for listeners who are looking to get some of those basic questions answered about "What does this mean to me? What does this mean to my friends and neighbors?" a really helpful Q&A about this decision for The Haitian Times. You noted that the Trump administration had actually already ended TPS for Haiti, with an end date anticipated for last February, but lower courts had blocked that move. How did the lawyers you spoke with explain this latest ruling?

Brigid, this is something that, honestly, the community has seen coming. The lawyers and advocates we spoke with weren't that surprised. They were very disappointed, but given the line of questioning during the oral arguments, they weren't as shocked as you would expect that the court actually-- The court's ruling removes the postponement that the district judge in DC had put in place for that initial revocation on February 3rd.

A lot of what they've been focusing on is the legislative route at this point, where they're really pushing people to call their senators, call other members of Congress to get them to pass this bill in the Senate that would extend protections for three years for Haitians. Their concern right now is to find a way to make Temporary Protective Status not temporary anymore. They're really pushing for a path to citizenship or permanent residency for a lot of the people who've been relying on TPS to live and work.

This bill, S. 4814, is what we've seen a lot of them just trying to tell the community and outside of the community, because we need people who are not Haitians who actually engage in this, particularly folks who are in Republican-led states, is what they've been saying to try to join on this bill, so it has bipartisan support to get through the Senate. That's where the focus is, obviously, in addition to responding to the critical needs and questions that people are getting about how they might continue to live their day-to-day lives.

, I want to go back to some of the reporting that you have been doing and what kinds of concerns are you hearing on the ground about what this decision means for how people, as you said, can go about their daily lives. Particularly within the Haitian community, how are people with TPS changing their daily routines?

A lot of the immediate concern is around employment. A lot of people were asking, "Can I still go to work? Is my work authorization that's tied to TPS still valid?" Some people had gotten notices from their employers that they should not return to work as of July 1st, which is tomorrow in some cases. Not just in Brooklyn and New York, but different places around the country, employers have made these different decisions.

When word gets out that some people are getting notices not to come back on a certain day, that just creates more anxiety in turn, and people are just calling and asking service organizations and their lawyers, "Can I still go to work? Is deportation going to start right away? What should I do with my kids? Can I still travel and go to different places?" It really just has this domino effect on decisions people have to make every day, from leaving their house in certain areas and not really knowing whether they'll be met with agents or whatnot, to continuing to drop off their kids at daycare or going into their jobs.

We've seen just the quality of life changes are also coming into effect. One of our reporters in Ohio and Columbus reported to us today that this one gym that's become a gathering spot for a lot of Haitians in that community was just completely empty over the weekend because people are just-- They don't know. On top of the immediate day-to-day piece, there's the need to save as much money as you can. Spending on things that might seem unnecessary, like going to the gym, is taking a hit.

People are just on pause, if you will, until they can get some clear answers about what it means for them as individuals, because each one, each family, has a specific individual case that needs to still work through the immigration system.

Next, Section B, THE CHARACTER OF THE COURT

The idea that a presidential executive order could overcome an explicitly written constitutional provision that has been upheld by a more than 100-year Supreme Court precedent was so preposterous that obviously the Supreme Court should have summarily affirmed the findings or the decisions of multiple district courts that had thrown Trump versus Casa out.

But in my view, the Court took up Trump versus Casa because they were so hungry to get at the issue that's been bothering them for years, the issue of district courts issuing nationwide injunctions. And so once again, I wanna be clear that the Court is not, 'cause they frequently say, "What can we do? Cases are just coming to us, and we just...

Then we have to try to figure it out." No, they are quite intentional, quite aggressive, and this was an example of that. They wanted that case because of the posture in which it came to them. So we have now waited more than a year around the question of, as Mark says, who is an American, right? While the Court played around with an issue that matters to them and probably not to, how many Americans are there?

350, probably 300 and, 45 million Americans don't care about nationwide injunctions, but they did. And so they took this case up, then they came out with this whole idea of the class action piece, which, by the way, don't think this Court is going to continue to broadly look at class actions, nationwide class actions.

So the Court then, this had to go back, then it came back up. It comes back up. The Court takes all of this time to decide this case that should have been summarily affirmed more than a year ago And when it decides the case, it decides this case of whether or not the president can overcome this explicit constitutional provision with an executive order.

And so they come down six-three on that, but five-four on whether or not it's possible to actually carve out from birthright citizenship. Justice Kavanaugh says, I think Congress can do it," right? he wants to weaponize the enforcement clause of the 14th Amendment to allow Congress not to enforce, but to subtract from the protections guaranteed in the 14th Amendment.

I think it's catastrophic. I think this is the kind of case in which, and you've heard all of the talking the last couple weeks, Trump picked up on it immediately, and said, "Now we're gonna try to do it by legislation." It is to create this environment of legitimacy around the idea that people who are born in this country can be shown not to be citizens, and that is the political gain, that they're playing with.

Kavanaugh mentioned it at the oral argument, and I said at the time, he's always looking at the political angle because he's an, a political actor. And the idea of saying, "Yes, but I think Congress can do it," is to keep the issue alive, and it has kept the issue alive for the right. So I don't even really give them the kind of credit that they should have on birthright citizenship.

It should have been a unanimous decision. Maybe it should have been 7-2. But this idea that Congress has the power to do it is profoundly alarming, and it has given aid and comfort to those who have been trying to press this lunatic idea for a very long time. And that's what they do. They do that until they can mainstream the idea.

But there are real people who are involved in this question. The more that you create this idea that maybe some people born in this country are not citizens, the more you feed an environment, a very dangerous environment in this country in which individual citizens are deciding for themselves who belongs and who doesn't belong.

And so the Haitian TPS decision, the green card decision, the asylum decision, all of those decisions are not just decisions where we evaluate what the court said, but it's what is the message that the court is sending to the American public. And the people who will face the consequences of those messages are ordinary people trying to live their lives, trying to be safe, who came here believing that this was a place where they could protect their families.

And we never should lose sight of that. 

In some ways, Sherrilyn, a lot of what you're describing is the culture war just creeping into everything that the Supreme Court does. I think in a lot of ways, Callais and Milligan were culture war decisions, right? There were also a bunch of other culture war issues on the docket this term that we are not even gonna have time to fully flush out: guns, abortion, religion, LGBTQ rights.

And I think it really shows you how urgently important the race and nationalism agendas are that these became like B-roll, even though they almost universally went badly. So Steve and Nico, I know this is a tall order, but I would love if each of you could pick out like the worst of these culture war decisions and, and talk about them.

Dealer's choice. They didn't get as much spotlight as we think they deserved, and, we would be remiss if each of you didn't have an opportunity to rant about how bad at least one of them was. 

I think any of these could get their own dissertation about what the court's doing and why it's bad. But I guess one that stands out right now is the court's decision in Wolford, which involved a Hawaii law that basically set a default rule that you can't bring your gun into a supermarket or a coffee shop unless you have the permission of the owner of the supermarket or coffee shop.

The court said that violates the Second Amendment as, incorporated through the 14th Amendment. It illustrates just how discretionary all of these tests the court is making up are. So a few years ago in Bruen, the Supreme Court said the way we are now going to evaluate gun restrictions for the first time is you have to point to a historical analog.

You have to show how the modern gun restriction is analogous to an older gun restriction, a tradition of gun restrictions. And in the Hawaii case, Hawaii had a really great way of approaching that. They said, guess what? When Hawaii was a kingdom in 1833, we banned all guns. Just no guns in Hawaii." And the court looked at that and said, that, that looks like it was an exception.

it's kinda out there. It's not part of the American tradition in the same way as, let's look at Pennsylvania." And, it's like you can do your best to abide by what the court has said it is looking for And yet the Court can manufacture an exception to its own rule so that when you're back before the Court with your new thing, the Court can say, "Oh, you really missed this footnote in some opinion from the '30s that we said this is not okay, and therefore you lose."

And so it does not feel like a fair tribunal to rigorously apply even what the Court is saying. Sherrilyn talked about the voting cases. the, the Court had struck down state laws as violations of the Voting Rights Act only a few years earlier, had it upheld on the shadow docket this year.

What's the difference? Three years have passed. The inconsistency makes it just hard to move forward. It's hard to predict as a legislator or as a voter what are we allowed to do. If we want to change something bad that the Court has done, how can we do it in a way that complies with the Court's vision of the Constitution?

For some policy decisions, whether it deals with trans kids or guns or voting or anything else, I just don't think there is any way that Congress or a state can comply with whatever the Court has said to the extent that it leads to a policy outcome that the Court is upset about. 

So I just wanna piggyback on that with my vote for probably the sleeper case of the term, which is a case called Landor v.

Louisiana Department of Corrections. So this is ostensibly a religious liberty case. Damon Landor is a Rastafarian Louisiana state prisoner who didn't wanna have to shave his dreadlocks as the Louisiana prison policy required him to. He literally had a copy with him in prison of the Fifth Circuit ruling that said he had a right under a statute called the Religious Land Use and Institutionalized Persons Act, RLUIPA, to not shave his dreadlocks, and the prison officials literally took the ruling and shoved it in the trash and then shaved his head.

And what did the Supreme Court say about all that? They said, because the Religious Land Use and Institutionalized Persons Act was enacted under Congress's spending power as opposed to any of its other enumerated powers, the statute has to elicit consent, not just from Louisiana, which consented by taking the money that it gets under RLUIPA, but from the individual officers who had to consent to the possibility that they would be subject to individual damages liability, for violating the statute.

That is based, Mark and Dahlia, as you guys know, on such a tendentious reading of the spending clause, one that a, wild district court adopted in two thousand and one, and then law professors and circuit judges spent twenty years laughing at. And yet the Supreme Court adopts it in a six-three majority in a way that doesn't just screw over people like Damon Landor and lots of other members of religious minority groups in prisons, but Mark, in a way that's gonna disempower Congress, because this is one of its most important enumerated powers, and the Supreme Court has now made it much, much harder for Congress to pass these kinds of statutes in a way that will subject people who violate them to accountability for violating them.

And that's just completely insane. So that's my pick for the culture war sort of disaster that we haven't paid enough attention to yet. 

does John Roberts read his decisions and think about the inconsistencies between them?

does Brett Kavanaugh read his own concurrence/dissent and the opinion that he joins? there's a lot of dissonance between these two. So here is the Kavanaugh concurrence/dissent in Trump versus Barbara. Quote, "The Constitution is an enduring document, and its principles were designed to and do apply to modern conditions and developments.

The original constitutional principles do not change absent a constitutional amendment, but the relevant principles, both the rules and exceptions alike, must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution's Framers."

Big if true. Also, how does this now relate to the rest of your concurrence? 

he, he's a living constitutionalist in the right circumstances, Melissa, and he's now told us that 

a- and your other decisions. just again Yeah. 

and specifically the Second Amendment- ... because here in Barbara, he is inviting himself to make open-ended judicial exceptions to the Constitution based on policy considerations, saying there are changed circumstances when in the Second Amendment, the Court's jurisprudence, including Kavanaugh's, fails to account for how firearms look a lot different today than they did 200 years ago.

And on that point, the Court just granted cert and will decide next term whether the Second Amendment allows governments to prohibit owning an AR-15 or other semi-automatic rifle. 

James Madison had an AR-15, so I'm sure it'll be fine. 

Basically. 

I- I mean, you're talking about the Second Amendment. I think you could also say the same thing about his 14th Amendment jurisprudence, like if you took an originalist view of the 14th Amendment and the 15th Amendment in the voting rights cases, it is race-conscious.

It's explicitly race-conscious, and Coach Kavanaugh is always about race neutrality. So it's super selective, it's super itinerant, and whatever. Here we are. We need to talk about the girls are fighting, so in particular, Justice Jackson and Justice Thomas are fighting again some more. And Justice Jackson's concurrence here takes Justice Thomas, who wrote the principal dissent, to the woodshed.

and separately, we are going to need to talk about Justice Thomas. Oh, we will. Okay, great. so Justice Jackson writes, quote, "Despite his long-standing endorsement of a colorblind Constitution," yes, girl, "Justice Thomas- Got Real personal, real fast. "Despite his long-standing endorsement of a colorblind Constitution, Justice Thomas now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure relating only to freed slaves, such as Dred Scott, and those who shared with them certain characteristics.

Justice Thomas' telling elides the entire point of the Second Founding," and she could have just stopped there, but she continues, "The Reconstruction Amendments were an anti-caste, anti-subordination reset for the nation, not a mere spot treatment for the dark stain of slavery." KBJ The 14th Amendment is not a Tide pen, you tools.

Like- ... this is a real thing. Like oxy- f- like, not OxyContin, but oxy, oxidant. I love that- Okay ... she pointed out how Thomas, again, is always ready to invoke race when it suits him, and always ready to be race- Yeah ... neutral when he wants to. 

Yeah. Yes. She also has a couple of just, savage footnotes. She basically says, "Justice Thomas," agree- thinks and says, and is right, "that the Court has not always," "made good on the promise of equal citizenship gu- guaranteed by the 14th Amendment" And then she writes in a footnote, "I suspect that Justice Thomas and I disagree about when and how that promise of equal citizenship has been denied by this Court.

My list is long and sadly only getting longer." And she offers a very long list, the most recent installment of which is Louisiana versus Callais. 

A list that begins with civil rights cases and Plessy versus Ferguson. Yes. This is the through line she draws. 

Students for Fair Admissions is in there, too. Yeah, it's really- Milliken- She, she- Korematsu

she wants- All the bangers ... she wants every- Yeah. and, and I just, I, I love this. this is the kind of anti-canon that she is- Yes ... willing into being. It's gonna take a long time. no, beating around the bush about that, but I really think that she is, starting to lay the foundations.

And anyway, there's one more footnote, footnote 53. There are a lot of footnotes in the Jackson, separate concurrence. she joins in full, but she writes a lot also. and she says, "There are myriad ways in which the Court's adherence to colorblindness is mistaken, some of which I have addressed in other opinions."

and she says, "One wonders how the outcomes in the above cases," that long list of, terribly misguided opinions, "might have differed had the Court, like the government and the principal dissent today, relied upon the fact that the 14th Amendment was enacted to ensure that Black Americans are not treated as second-class citizens."

So where was the energy you're bringing today, Justice Thomas, in Students for Fair Admissions or Callais or any number of other cases? 

So in light of the vote count, I was left wondering what the vote count on cert was. Specifically, was this the chief justice thinking, "I am going to grant cert and get an easy layup and win for the Supreme Court's PR," or was it the dissenters granting cert because they wanted to bulldoze birthright citizenship?

I don't know. I 

love the idea of Chief Justice John Roberts thinking that he is the Jalen Brunson of the Court, and he's gonna do this. No. And I, I think it might've been the dissenters. 

In light of the vote count, it could have been. 

Justice Thomas's principal dissent, ooh-wee, wow, we need to talk about it.

So the dissent ends with this quote: "I am not sure that today's opinion will stand the test of time. The Citizenship Clause added greatly to the dignity and glory of American citizenship. Today's opinion devalues that citizenship." So first of all, let's go back to the idea that the Citizenship Clause only applies to Black Americans and their descendants, and therefore rank xenophobia is anti-racist.

that's basically the energy here. And going forward, that's where w- we've got to come back. This will not stand the test of time. This is an invitation to keep pushing on this and to- Yeah ... make this happen again. let's recycle our shitty arguments about same-sex marriage and use them against birthright citizenship.

We should also say a word about the Alito dissent, which no one joins, and which really is- He's 

on the way 

out ... a Fox News s- may- maybe, it's very hard to know where he, what, what is happening this week, so maybe we'll know more by Thursday or f- by next week. But in any event, it really reads as a Fox News segment in Century Schoolbook font.

That is the Supreme Court opinion font. truly. The second sentence is like sneers about, quote, "birth tourists." It then launches this screed about, quote, "A long period during which a coterie of actors, executive branch officials, states and cities, and a variety of private groups sent the message to would-be immigrants that our immigration laws would not be taken too seriously.

This message, coupled with ineffective or unenthusiastic enforcement, spurred massive illegal immigration." it also goes, full great replacement theory, talking about the grotesque results of a child born here to a birth tourist being automatically a citizen, and warning about the intensifying trend of, quote, "the overall foreign-born population of the United States."

it's really a shocking document. 

It's actually a real take for someone who is the descendant of Italian immigrants 

Indeed 

I, just again, just I didn't... I was actually shocked by this, again, recognizing the real politic here. this man, his father, wasn't his father in, came from Italy?

He's not that far removed from coming over, and yet, we're talking about birth tourism. I mean- 

Yeah ... 

everyone came from somewhere else, my guy- Yeah ... except the Native Americans, my guy. 

So I expected that in today's episode we would have to talk about the fact that even though the court told the president he can't unilaterally nullify birthright citizenship, we would have to remind people that the court created the need for this decision, staging the media fawning over them by basically drawing this out and then insisting that the federal government bring it back to them.

I thought we'd have to situate this case alongside many other cases where the justices told the president what he can do, including his racist immigration agenda, including the decisions we talked about last week, canceling TPS or giving the president a giant loophole to evade all of asylum law, or racial profiling in immigration enforcement and so on.

I thought we would have to spend time situating this case along the many cases that did nullify provisions of the Reconstruction Amendments, like the courts of voting rights decisions out of Alabama, the one we are about to talk about, nullifying the 14th Amendment's equal protection guarantee for trans people, at least in the context of sports, nullifying equal protection principles applicable to, to the federal government, allowing the president to smear Haitian nationals with vile racist statements, saying the president isn't subject to provisions in the 14th Amendment barring insurrectionists from office until Congress says he is.

And instead, the focus is how they came within one vote of nullifying the edifice of the post-Civil War constitutional order. And the world I was envisioning was already bad enough, but now there are four votes against the 14th Amendment. And again, for all of the Democratic-elected leaders who still are not on the Supreme Court reform train, it cannot be up to the court which provisions of the Constitution get enforced, which groups have constitutional rights.

It shouldn't be up to the court whether to give the president a hall pass from the Constitution, federal laws. am I supposed to be grateful that the court, in its benevolence, would enforce the 19th Amendment and not allow a state to tell me I can't vote tomorrow? No, and we shouldn't do the same when they do that for birthright citizenship by one vote.

The Supreme Court is corrupt. You might hear that and think, Jamal, you just disagree with the rulings. They're not corrupt. They're doing their jobs." But I want to posit to you that they're not doing their job, that they're in fact doing something very different. They're acting as a super legislature, an unelected group of people who have taken it upon themselves to correct Congress, not when Congress has overstepped its bounds, not when Congress has overstepped its powers, but when the court simply doesn't like what they're doing.

Typically, when we use the word corruption, we are thinking about monetary corruption, bribes, and the like, and it should be said there's some of this. Clarence Thomas, in particular, is known for taking large sums, large gifts from his wealthy benefactors. Sam Alito has also been the beneficiary of wealthy friends.

So there is that kind of corruption as well. But corruption also has a broader meaning. It can mean the malign use of power, the substitution of the public trust for your own private will, your own private interest, and that is more than anything else what is happening with the Supreme Court. You can see it in many different ways.

The Roberts Court is quite fond of simply ignoring the plain text of the Constitution whenever it gets into the way of their particular political and ideological projects. The Roberts Court wants to do a few things. It wants to gut the Reconstruction Amendments. It wants to aggrandize presidential power.

It wants to free corporate speech. It wants to allow the wealthy to interact with the political system in any way they choose, and it wants to pursue the particular partisan interests of the Republican Party. And so when the text of the Constitution gets in the way, they change the text or they ignore it.

The text of the Constitution clearly gives Congress the power to handle racial discrimination in voting, and when it came up to the court in 2013 in Shelby County, the court simply made up a new doctrine, state sovereignty, all states have to be treated equally, in order to undermine a provision that subjected states with histories of voting discrimination to stricter scrutiny by the federal government.

When the court wanted to protect its special boy, Donald Trump, from criminal prosecution, it invented a doctrine of criminal immunity for core duties found nowhere in the Constitution and frankly contradicted by the text, history, and theory behind the Constitution More recently, rather than just shutting down Trump's efforts to unravel birthright citizenship, the court has taken them seriously despite the clear text and history of the 14th Amendment.

Where the text interferes with partisan political goals, this Supreme Court says, "To hell with the text." The other manner in which the court demonstrates corruption is by not having any particularly consistent jurisprudence. Despite grand claims of being originalist or textualist, this court often decides not based on any particular theory of jurisprudence, but simply on whether they have a decided interest in the case in question, a partisan or political interest.

Consider two days in 2022 back to back. On the first of those days, the court held that because you cannot find gun regulation in the annals of American history, therefore, there's no history or tradition supporting New York state's attempt to regulate individual gun ownership. And then the very next day, the court releases an opinion stating that despite the fact that you cannot find very much evidence of abortion regulation in the American past, that doesn't mean states can't regulate abortion or ban it outright.

On one hand, gun rights, which the court likes, history is an obstacle. On the other hand, abortion rights, which the court does not like, history is no limit. In Trump v. Hawaii, the court held that, yes, the Trump administration can use race, can use religion in determining its travel bans. There's nothing against the Constitution involved in that.

Just last year, the court held that you can use race in immigration stops. That's why we're calling them Kavanaugh stops. Brett Kavanaugh wrote that opinion. But as it comes to voting, as we've just seen, states can't use race to remedy past discrimination. States can't consider race to ensure fair minority representation.

States can, however, engage in racial gerrymandering as long as it's done under the guise of partisan gerrymandering. What's the difference? the court likes the president's nativist policies. It likes the fact that Republicans can try to gerrymander themselves into permanent majorities. And so if it needs to use race to do that, the court has m- no particular problem with it.

Only when it comes time to hamper discrimination to protect rights is race impermissible. The other manner in which we see the court acting in a corrupt way is in its clear preference for Republican presidents, for Republican power. Under Trump, aggressive assertions of executive power were given deference.

They were allowed to move forward. Aggressive reinterpretations of existing congressional statutes, reinterpretations that may cut against Congress's intent were given deference, allowed to move forward Broad policy changes such as ending agency independence against the clear text of the law and against ninety years of precedent are given deference under the idea that the president needs to be able to pursue his priorities.

But Barack Obama wants to use the EPA to reduce carbon emissions? that's a major question. Congress has to deal with that. Joe Biden wants to forgive student loans? that's another major question. Congress has to deal with that. Under this court, presidential power when held by Republicans is broad and expansive, and under Democrats, it's cramped, barely legitimate.

I could go on like this, but the last point I'll make, the last example of the corruption I'll give is the total absence of regularity by this court. What makes a court is that there are well-defined procedures, processes. They're predictable. Courts pay attention to precedent. They have the same rules for all plaintiffs, and they explain their decisions.

Not so much this court. There's the shadow docket in which this court issues broad and important rulings with no explanation, shoots down district court decisions with no explanation, and then insists that those courts hew to its new precedents, which it has offered, again, with no explanation. In cases where the justices have clear political or ideological interests, they will make up fact patterns to support their case.

A religious liberty dispute where a coach says that he is having a private prayer, but in fact, he's having a large public prayer pressuring other students. Neil Gorsuch will simply pretend that the private prayer is what was happening, not the actual public prayer. A plaintiff sues not because they have any particular injury because of a law, but because they hypothetically might have an injury because of a law, despite the fact that they're not even engaged in the particular business that would bring them that injury.

the court says, "Hey, no problem. We'll still give you standing, and we'll still decide your case because we have a vested interest in making sure that religious liberty means you can discriminate against LGBTQ people." And again, there is the shadow docket. Major decisions made without a whiff, an inkling of reasoning.

Congressionally mandated agencies disrupted, tens of thousands of livelihoods destroyed, all without a single bit of explanation, simply deference to the president's desires and decrees. It is capricious and arbitrary. It is the essence of an anti-democratic action, of an anti-constitutional action. It is abundantly clear that as long as John Roberts has his majority, nothing the left of center in this country wants to do is safe or stable.

Everything can be killed by the court. We can have democracy and self-government in this country, or we can have the Supreme Court as it exists, but we cannot have both. We cannot have both. 

I wanna just emphasize it, is because at the end of the term when commentators crunch numbers and are- Yeah

"Oh, the Roberts Court doesn't overturn precedent at a higher rate than other courts. They o- only overturn like one or two cases this term." Callais didn't technically overturn any of the earlier cases about the Voting Rights Act. This case doesn't technically overturn Sosa, but that doesn't actually tell you much ju- about how radical this court is, and I think that's an important point to remember.

Absolutely, and this case had the same look what you made me do- Yes ... energy as the court's decision overruling Roe versus Wade, and some other cases have had. Namely, the court says, "Look, we left the door open in Sosa to recognizing new causes of action." Yeah. "But guess what? We haven't recognized one." And it's okay, that's your choice. Yes. That doesn't mean you shut the door. Yeah. And also they say, Sosa didn't take account of the fact that we would announce this rule that federal courts can't fashion causes of action." It's like, that's also your fault, right? Yeah. these are not kind of- It's never their fault when-

these independent developments. exactly. I forget. So- Yeah ... second case in this grouping we wanted to cover is ExxonMobil versus Corporacion Cimex. Exxon is the plaintiff here, so that's a clue about who won. Here, the Supreme Court said that plaintiffs could sue arms of the Cuban government, like basically entities that are operating as part of the Cuban government, and that- Decision is going to benefit a group that is probably going to include a large number of oil companies- who want to sue Cuba and arms of the Cuban government for appropriating and taking their oil, during the kind of Castro takeover and aftermath. And that same group also probably includes some oil companies who don't want to be sued for human rights abuses, and now Cisco cannot be sued. 

Yeah.

So this is implicit in what Leah just said, but if you're keeping track at home, after just these two decisions, if you want to sue a corporation for, say, facilitating a foreign government surveillance and torture, federal court's not going to be able to help you. But if you are a US corporation wanting to sue a foreign government for, appropriating your property like many decades ago during the Cuban Revolution, US courthouse doors are wide open.

And we won't get too deep into this just on this quick, conversation, but the court engages in some pretty tortured reading of a statute- Oh, yeah ... in order to say, "Eh, this sovereign immunity, this thing that usually protects foreign governments from being sued, that's been waived here in a statute that doesn't say anything about it.

But because we would really like to allow US corps to sue the Cuban government, we're gonna just try our best to find that this unwritten language is somehow discernible in a bunch of other statutory text." Curious, in contrast to the court's unwillingness to read things that aren't in statutes into them in other contexts.

Okay, so that's the first two. Third decision we wanna talk about is Landor versus Louisiana Department of Corrections. so this is a case involving e- a Rastafarian prisoner who had his dreadlocks cut off by prison officials in violation of his religious convictions and religious practices, and even after he gave prison officials a document that said they could not cut his hair.

This is an individual who was doing, a, a sentence just like in the number of months for a marijuana offense, was in one facility where prison officials respected that he had a legal document involving a case, it was a case involving another Rastafarian prisoner, but that said prison officials cannot cut the hair of religiously observant Rastafarians.

So when he was transferred to another facility, he showed them the opinion, and officials took the opinion, threw it in the garbage, held him down, and shaved his head. and so he filed a lawsuit, and the court here held six to three that the prisoner could not sue prison officials for damages. And so a, an awful result in this particular case, and more broadly, the opinion possibly renders all federal Spending Clause statutes unenforceable against individual officers who are responsible for carrying them out.

So Spending Clause statutes are statutes where the federal government gives money to states and says, "If you take this federal money, you have to agree to certain conditions." here there was an explicit condition to respect the religious rights of incarcerated individuals, but Landor says that these conditions are unenforceable against the individuals who are supposedly bound by them.

And this is hugely consequential given how prevalent Spending Clause statutes and programs are. And as Kate was saying, this ruling potentially makes it impossible for the beneficiaries of all of these programs, many of these programs, to vindicate their rights under the programs. This decision was 6-3.

It also vindicated a position that had been advanced by Scalia, Thomas, and whatnot. And if you're thinking, "Wait, I thought this Supreme Court liked religious liberty," here's what I'd say here. I think this gets at the issue Kate mentioned up top, which is this is really about government power. And here, the right-wing Republican project of curbing Congress's power to help people through Spending Clause programs, public benefits programs, which is what spending programs are, that desire to curb Congress's power, to curb the government's power to help people, won out over any substantive commitment they might have to religious liberty.

Probably didn't help that the plaintiff here was a Black Rastafarian, but I think that was the kind of cross-pressure and what they chose here. 

Yeah. And in addition to really gutting the enforceability of meaningful provisions in Spending Clause statutes, there is, this, it's about power, but there also is this kind of individual sort of culture war thread, I think- Yeah

to a couple of places in the opinion. And one place that jumped out to me, I think this also was a question that Gorsuch, posed in the oral argument. He basically says, "On the plaintiff's theory, the federal government could regulate all kinds of third-party conduct." And Gorsuch gives an example. He says, quote, "Congress," again, under the plaintiff's theory, "could require coaches at universities that receive federal funds to permit transgender athletes to play women's sports or face personal liability in suits for damages."

so that is clearly what is driving them. This- Yeah, I know. You- I just wanna say like- you're, you're gonna, you're gonna explode out of the screen. Please go. Yeah. 

I'm sorry. I'll let- 

No. no, no, no, go ... I won't explode. no, no. Go. Mic is yours. 

Fuck you. This is literally what spending programs civil rights- Yeah

do. Yes. They offer conditions, and they say, "If you take these money, you have to respect civil rights." Yeah. This is literally just describing how programs like Title VI and Title IX work. 

Yeah. 

Like- He's like, "But you can't use that to protect trans- transgender athletes and require coa- coaches to do so."

What? 

Right. A- And if we, yes, and if we allow the protection of religious liberty here, like all of a sudden this, for Gorsuch, this is a parade of horribles, which is that there's a world in which a Congress could actually require college coaches to permit transgender athletes to participate, and this is like the most horrifying kind of end of the slippery slope that Gorsuch can conjure up.

So anyway, it does feel like that's somewhat driving him. And there is a Jackson dissent. This is an issue, kind of the court's evisceration of statutes passed under the Spending Clause, or at least the kind of enforceability of the rights guarantees in these statutes, has been something that Jackson has been really focused on- Yeah

for basically her whole time on the court. and she also is really, I think, like deeply offended by this kind of analogy that underlies what the court is doing. We're not gonna get like too far into the weeds, but basically what the court says is- Under, a spending program under the spending clause, the kind that Leah was just describing, is like a contract between two parties, the federal government and the states that take the money.

And so contract principles have to inform whether we decide that a provision like this k- rights guarantee provision can be enforced. And because these guards never agreed to the specific condition, they can't be sued. it's ... If it sounds like a hard theory to really follow, yes, it doesn't really make any sense, and she's just both, unconvinced but profoundly troubled by, what underlies this idea.

So she says, quote, "Today's decision magically transforms a federal statute into an invitation to be accepted or declined, binding only if each particular defendant has explicitly agreed to be penalized, no matter that laws as opposed to contracts don't ordinarily work this way." And then here she says, "The court reduces some of Congress's greatest legislative achievements, federal laws that secure civil rights, environmental stability, healthcare, and more, to nothing more than the wheelings and dealings of an especially wealthy private party.

I would not so trivialize a federal statute or the constitutional powers pursuant to which it was passed." And anyway, I thought that was quite powerful. 

So there's sort of four cases where the court doesn't let Donald Trump just do whatever he wants to do There's the tariff case where they strike down the tariffs. There's the birthright citizenship where they invalidate the executive order, although very narrowly. There's the mail-in voting case where people are allowed to, they're allowed to count ballots after election day, which doesn't directly involve Trump, but he, of course, is obsessed with this.

and the Fed case where the Federal Reserve Board of Governor member Lisa Cook, can't be fired summarily even though you can fire everyone else, not the Fed. So those are the four kind of places where they step in. Maybe I'll start with you, Melissa, just is there a through line there? Is that a useful way to think about...

We all think about it because the way the news covers it, but is there a through line there, or is it just are these sort of different issues that we should just think about in different terms? 

So I do think there's a through line. I don't think it's helpful to think about this in terms of winners and losers because whenever you're talking about this court, the ultimate winner is the court itself.

the court usually- that's well said ... aggrandizes power to itself, even as it expands the power of other branches and diminishes the power of Congress. So I think that's just a baseline. I think the through line that I've identified with regard to what appear to be two irreconcilable cases, Slaughter on the one hand, and Cook on the other, and you gave a great summary.

Slaughter is the one about being able to remove the heads of administrative agencies for whatever reason the president concocts, and Cook is about not being able to remove a governor of the Fed unless you can concoct some kind of plausible reason, and you give her due process in doing so. I think I would weigh those two cases in tandem with the tariffs case.

I think the through line that unites all three of them is the fact that this court is a very corporatist court. So- ... all three of these cases had something that corporations and their presiding oligarchs would love. So obviously in Slaughter, getting rid of bipartisan control of administrative agencies makes for a more pleasurable regulatory landscape for most.

That's a great adjective. 

I, I think the afterglow of Slaughter was huge, for many- Yes ... of these tech giants, Not 

all of them. Yes, they're laying back and smoking cigarettes. 

Yes. No, not all of them. Indeed. there, there are some places where regulation is actually great for corporations because it- Yeah

limits barriers, or it limits new entrants to the market and whatnot. But I think for the most part, they would prefer a more deregulated environment in which to do business. but at the same time, they want global policy, global economic policy to be stable. They want markets to be stable and not in turmoil, and that, of course, depends on the Fed being independent.

They've talked about that quite explicitly. And with regard to the tariffs- They hated the tariffs as much as the little guy did because the tariffs upended global supply chains, it made the cost of doing business much more expensive, diminished profit margins. So for all of those reasons- Yeah ... there was something for the corporate giants to love about all three of these cases, and I think this is a court that is not unlike the court post-Reconstruction, the Gilded Age court, that was very much corporatist- in its outlook and bent. 

Yeah, that's really well said. look, just to zoom in, Leah, for a second on the, a lot of people have pointed this out, the... So you've got these two independent, quasi-independent agencies, right? The Federal Trade Commission on the one hand, and the Federal Reserve Board.

And, they're not at the same time, they're not created at the same time, and they have slightly different structures. But there's a whole set of agencies where we don't want it, we want it to have a little bit of distance from the executive authority for a whole bunch of reasons, and in one case, the court says that's constitutionally impermissible, like you can't do it.

And then everyone thinks, "Whoa, they're gonna destroy the American Central Bank and the pillar of global capitalism." They're like, "But except for that one." Is there any good faith argument here? they try to make it, and I've read parts of the opinions where they do. Is there anything we should credit here about how they hive off the Federal Reserve from the rest of these independent agencies?

So there is something I think we should credit, and that's Brett Kavanaugh's separate writing, where he just had big OMG, I admit it energy, and basically said- ... we need to resolve this issue because otherwise we are threatening the United States' economic stability." So I think he offered- Yes ... the real rationale.

He's so dumb- Consequentialist reasoning ... I don't think he realized what he was admitting to, but- Don't 

say it out loud, 

the first rule- He did it anyway ... of 

Fight Club. 

Yeah. Exactly, but I think the comparison between those two cases is instructive because the wins for Trump and the court were monumental, even if he lost on particular policies in narrow ways.

So in the tariffs case, for example, they said, "You don't have the authority to use those statutes to impose tariffs." What did he do? He came back and tried to impose tariffs under another statute. In the Cook case, they told him, maybe you can't fire this one particular person for now in the way you did, but we're giving you plenary unfettered authority to decide whether you wanna fire everybody else."

And it also inures to the court's benefit because they get to decide who he can fire, and they've decided they just care more- 

bring it back to us, and we'll- we'll just weigh in from time to time. Yeah, 

Yeah, and like we care more about a functioning Fed than we do about any other functioning regulatory agency.

The case in Slaughter, which overrules a case called Humphrey's Executor, which is, why is it the funny, most comedic name, e- there's just something so funny about that name. 

there's a tra- there's a tragedy, right? that Humphrey passes away while the case is pending, and his executor continues it.

I learned it from an early dra- from you. From, from- Okay ... something that you wrote. You've been spending a lot of time thinking about the sort of independent agencies and civil service. These e- entities that we want that are in the executive that they're placed there for a reason, right? 'Cause we, there has to be some democratic accountability.

You want, th- they're not just some free-floating, they draw their power from Congress and the executive. But you also just don't want it to be the case that it's just, whims of one man. how big a deal, the court upholds this form of government structure in Humphrey's Executor Can you maybe give us a quick what was Humphrey's Executor- Yeah

why it was important, and why it matters that it was completely overturned 90 years later? 

Sure. So it's a 1935 decision involving another president who is frankly unhappy being saddled with- Yes. ... regulators not of his choosing, right? So Trump is not the first president to bristle against having independent regulators who aren't folks he chose.

So Franklin Delano Roosevelt, the president in 1935 when Humphrey's Executor comes down, actually, when he's first elected, he takes office and, starts trying to respond to the Great Depression and rebuild the economy via the New Deal. And one of the things he wants to do is to get control of independent agencies, some of whom are staffed by people who don't actually share his vision.

So Humphrey is this stodgy Hoover holdover who's on the Federal Trade Commission, which was actually a really important regulatory body, and FDR wants him gone. So he first asks him to resign politely, and then asks him again less politely, and then finally fires him outright. And Humphrey, first individually and then via his estate when he passes away, challenges this firing as unlawful because there's a statute that says you have to have some cause before firing a commissioner on the Federal Trade Commission and other similar independent bodies.

And the Supreme Court unanimously rules against FDR and upholds the statute, and just basically says, or at least what it's come to be understood as saying, is there are sometimes good reasons to design agencies and to give their heads a degree of insulation from the president and the political process.

Independent expertise, merit, sort of insulation from the kind of political whims of one person, those are all important values that Congress can express through the creation of these agencies and the insulation of their heads. so that's like kind of the ethos of- that's Humphrey's Executor, but also the ethos of the era.

Two notes. One is that Humphrey dies between getting fired and the case going to the court, so it's his estate, basically. That's why it's Humphrey's Executor, which is by the way, what a pain in the ass for the executor of that estate. it's enough of a pain in the ass to be executor of an estate, and generally now you gotta go do a SCOTUS case?

My God. Anyway, but also the point also I feel like it's just worth stressing here is like King George didn't create the FTC. Jesus Christ and Moses didn't create it. Congress passed a law, the president signed it, and it was- Yeah ... it's like it doesn't come out of nowhere. Yeah. The democratic process produces the legislative body and the executive that make the law that create the body.

They can also pass a new law that says, "We're gonna change the way people are appointed"- Correct ... or getting rid of the FTC. So like this is such an obvious point, but I feel like it just gets lost in these conversations that like- These things were made by democratic institutions of governance.

and the reason that I think is so important is because a key through line of both the Roberts opinion in Slaughter, which overrules Humphrey's Executor, and fully, bear hugs the unitary executive in a way that I don't think the court ever fully has in quite the way it did in Slaughter.

The president is the sole repository of democratic will. The people select him. He has to have control over every subordinate in the executive branch who executes the law, but the Fed, not the Fed. But that I think is so willfully blind to the democratic kind of provenance of these agencies. they are the product of democracy too, and it's this very blinkered conception of a presidentialist democracy that I think- Yes

is at play in Slaughter. but, I do think in terms of how big a deal it is, just to wrap this up, I think it's a huge deal in way more ways than just the kind of now end of independent agencies as we have known them for, over a century. I do think that the general ethos of there are independent actors inside the federal government, both the heads of agencies, but also, civil servants who don't just have allegiance to the president, but have allegiance to statutes passed by Congress, and are bound by ethical norms to follow the Constitution and the statutes and, regulations and other kind of conventions and practices.

and all of those things I think are in real tension with the vision of kind of power and authority that- Yeah ... gets expressed through the Slaughter opinion. So I think it's much more than just these agencies that this opinion upends.

Now, Section C, ORIGINS, HOW WE GOT THIS COURT

When we talk about this era, when we talk about the Reconstruction period, we talk a lot about, the Supreme Court's role in then what comes after Reconstruction, which is Jim Crow full on.

And we talk a lot about how, to what degree- Did the Supreme Court play a role in green-lighting that, in ushering in Jim Crow, in creating the conditions at least in which, the South could in earnest create this kind of system? So I just wonder, what you think about the degree to which the Supreme Court, how big was the role the Supreme Court played in that?

I think the Supreme Court's role was pretty big in some ways, in that it, it is playing this legitimating function. It is relieving tension that might otherwise lead to progress in the direction of racial equality. But I think it's also important to understand that, the Supreme Court here is pretty much doing what it's supposed to do, I think.

you've got Supreme Court justices who are basically representing the political coalition that appointed them. You got a whole lot of Republicans on the court at this point, but the Republican will to support Reconstruction has gone, and they're not doing it. And a lot of these decisions are pretty lopsided.

So Slaughter-House, that's five to four. But Dred Scott is 7-2, the civil rights cases is 8-1, Plessy's 8-1. And what the court is doing here is really representing elite consensus. It's representing what the national powerful people want. And, as long as the Supreme Court is doing that, that's what it's supposed to do in our constitutional scheme, I think.

I get really upset about the current Supreme Court because I think it's out of step with the national majority. Yeah. A lot of what's going on in Reconstruction is just that's what America wanted, like the people in power- ... at least. We wanted to give up on racial equality. We wanted reconciliation.

The Supreme Court is helping that along. now I think it's really bad what the Supreme Court is doing. It's going against the majority of Americans because the appointments process has given us a court that's way out of line with national popular sentiment as reflected in presidential elections.

Like the Reconstruction Court, the Plessy v. Ferguson Court, for instance, is exactly where it should have been if each president gets to appoint two justices- ... per four-year term- ... which is what I think the system should be, right? Now we're way off of that, and that, I think, is why our current Supreme Court looks political and extreme.

But, in Reconstruction, they're doing what the powerful people want. 

Which is what the court does. Oliver Wendell Holmes, who's the author of Giles v. Harris, says, "I am a supple tool of power." That's what judges are. 

Oof. 

I don't wanna say something really inappropriate.

No. I, look, you shouldn't be saying "supple" in The Reporter. Yeah. I'll just say that. 

Oliver Wendell Holmes also thought that the Southern white man was genetically inferior. 

Hits and misses with Oliver. 

So he had some good ideas. He, he- Oliver Wendell Holmes 

fought in the Civil War. Yes. And, got shot twice, and I think that's- Yeah

in the background of his opinion- ... in Giles v. Harris, 'cause he knows what it takes to make the South do what you want, and he's like, "When I was on the battlefield, maybe I had a shot at that. Now I'm in the Supreme Court just writing an opinion. I can't do it. I need the US Army." Yeah. 

Yeah. I do, I think there's something to that. you could argue, I think, that they could've at least been the better angels on the shoulders of the elite and been like, "You know what you're doing here is abandoning this pro-" 

That's exactly the point about the tension release, right?

Yeah. 'Cause if the Supreme Court says this is unconstitutional, if the Supreme Court upholds the Civil Rights Act of 1875, which wasn't being enforced very much, but if they're like, "Yes, Congress can do that," then there's still conflict, and the conflict can move- ... in a good direction. But instead, the Supreme Court is saying, "This is fine."

"

This is the way things should be." 

And the way that the Supreme Court acts, there is no one speaking up for the real material validity of the Reconstruction Amendments, or at least all of the Reconstruction Amendments, right? You have a sort of political system that basically subjugates them to various other principles, largely non-constitutional principles.

In Plessy, equality, which is, explicitly called out in the 14th Amendment, equality under the law becomes subjugated to, some sort of vague idea of reasonableness or something like that. You have this sort of almost century-long period where no political institution is taking the Reconstruction Amendments particularly seriously.

You can't talk about this time period and not think about what could have been, if the political will had maintained, if there hadn't been a violent overthrow of the, the Reconstruction governments in the South. And I do think, w- if we're thinking about America 250, that's something that should be on your mind, listener, about different points of history, how things could have gone differently.

But I do think that relates a little bit to, Kermit, your book, The Nation That Never Was. Maybe you can talk a little bit about your thesis there. I think you more focus on the national mythos and how we view American identity, but I think that it relates very well to what we're talking about here. 

Yeah. So I have two ideas there. The first, which is the basic idea of the book, is we really underplay Reconstruction and we overplay the Founding as the source of our American values. So the idea of equality that's there at the Founding, I think this is true about the Declaration, maybe people disagree.

It's very clear about the Constitution that's written in 1787, and really no one disagrees about this. There is no idea of equality as a national value that we are committed to as a nation, no matter what the states want. There's no idea of democracy as a national value- ... that we are committed to, no matter what the states want.

All of that comes about through Reconstruction. It comes about basically because Black people fight in the Civil War, and that gives them a path to citizenship, and once they're citizens, their rights have to be protected. That's why we need the 13th, 14th, and 15th Amendments. And this really changes both The constitutional structure and our sort of self-understanding, because it's Reconstruction that makes us into a nation rather than a union, and a nation that has certain values that the states have to follow no matter what they want.

Now then, we lose Reconstruction. We have this thing called Redemption, where the White supremacists take back power. We have Jim Crow and segregation, and how could things have been different? I think it's a really interesting question. one answer is, the American people should've had more fortitude in the 1870s and stuck with it.

Another answer might be the Supreme Court should've stood up more for the principles of Reconstruction. But honestly, I think the realistic thing is we should have treated the Confederates differently after the Civil War. Yeah. Because we had a really divisive war before, and one-third of the American population maybe was on the wrong side, and that was the Revolution.

But the Loyalists didn't cause us a problem afterwards because we drove a lot of them from the country, and we took their property, and we distributed it to loyal people, and we kinda wrote them out of the American story. So no one said, "Hey, Loyalists, your perspective is valid. You fought for what you believed in.

We're gonna take you back. You can be one of us again." But we did that with the Confederates, right? We did exactly that, and they were one-fifth of the white population. They were a smaller percentage than the Loyalists at the Revolution. But instead, we were like, "Welcome back. You're not traitors. You fought for what you believed in."

"You did what you thought was right, and maybe you are the real Americans." And, part of my thesis is they are the real Americans- ... because they're standing in the shoes of the signers of the Declaration of Independence. They're declaring their independence, right? They're fighting the national government, just like the Patriots did.

But in Reconstruction, we made a choice against that vision of America, and that's what we need to see, that the Confederacy really was illegitimate- ... that this is something we've turned our back on. Yeah. Accepting all of them back, giving them political power again, allowing for this sort of pride in history as a legitimate thing, that I think has really harmed our ability to fulfill these values of equality.

I think that's right. You're speaking, you're, you're singing my song here 

And you've convinced me people in the South shouldn't vote at all. Forget the voting rights act. it's, this is... You have to break a few eggs to make an omelet, folks. 

No, but we are, we are living in a, an era where, it's been 130, 150 years, and one of the political parties essentially represents the ideals of the Confederacy in a- in a very real sense. Oh, yeah. They, 

they absolutely do. They absolutely do. 

one of the things that I observed back in the Clinton administration when I was a career appointee, stayed for a bit to advise John Ashcroft, Don- the first attorney general for George W. Bush, before leaving to go to the courts and then ultimately go to work for Senator Leahy, who was a Democrat elected from Vermont.

What I observed was that the right-wing movement in the country was treating the courts like players on a chessboard. 

Reagan, I used to call it Reagan, Bush. There was this effort to have litmus tests about abortion in particular and other issues as a test for whether someone would get a nomination to the Supreme Court or other courts.

It wasn't a very sort of effective test. In essence, they got some people on the courts who were anti-abortion but were not part of the broader sort of right-wing infrastructure agenda. But after Reagan, Bush, when Clinton came in, he said, "No, we're, that was wrong to have these litmus tests.

We're not gonna have them." And then he eventually started facing a Republican-controlled Senate, which was blocking anyone who had any progressive credentials basically for the bench. They blocked a judge on the Ninth Circuit named Richard Paez for, I think, 1,532 days. He had dared to work for legal services as a young man, and they did not want him on the Ninth Circuit.

So Clinton ended up appointing a bunch of federal prosecutors and big firm partners, didn't go and appoint a counterweight to 12 years of Reagan, Bush. And I think the notion was judges should be fair. We shouldn't be appointing extremists. We should be appointing moderate people who are going to be fair, and that was their view of the federal prosecution of the big firm partners.

personally, I think that was not the right call, although I was- ... involved in the vetting in that process. I think that we needed to have a counterweight to what was happening. But there has been this discomfort in terms of the right wing really actively pursuing this ca- effort to capture the court and put- people who are super young and devoted to this extreme agenda on the court. And you've had, for most of this, 40 years, Democrats appointing people who are much later in their career, who've been, big firm partners, who've defended a bunch of corporations or been prosecutors, not public defenders or not public- interest group leaders and the like. And the t- two parties have been playing an en- two entirely different games, basically. And the effect is that the right wing has captured the courts, and they did so- ... in order, as you said at the outset, to accomplish things that they could not accomplish with the vote, that they did not have the votes to do, like overturn abortion- or, block voting rights and the like. And so you have Only in recent years, for example, the Biden appointees, do you have this broadening of the perspective of people being put on the bench, that you need to have a broader perspective. Even within that perspective, the objective has not been to put ringers on the bench- but to put people who they think will be fair. And I can tell you, looking at these Trump appointees, they are not appointed to be fair. That's right. They are appointed to advance his agenda, and they right now, in this second term, will not and cannot even admit that Joe Biden actually won the presidency.

They will only admit that he was certified the president in 20, 2021- ... because they're so devoted to this MAGA agenda. And so to the question of the, criticizing the institution, I believe in having a fair Supreme Court. I think we had a fair Supreme Court under Earl Warren, who was trying his best to interpret the law as it was written, equal protection of the law, right to counsel, no establishment of religion.

But that was attacked by this right-wing movement, similarly to this attack on government, on the New Deal, on having these agencies. And so we're in a situation in which there was very significant reluctance to criticize the court as an institution. That's in part because there's so much investment in litigation- to try to protect us, and the lower courts are, for the most part, with the exception of some Trump judges, holding the line in following precedent. Yeah. So people don't wanna criticize sort of what they perceive as the only check left, the court. But the reality is that this court, the Roberts Court, is out of control.

It's not acting like a court. It's acting like a partisan weapon of Donald Trump, with few exceptions where the business community dissents, like with tariffs, and the plain language of the Constitution makes clear. And so I feel like there's a moral imperative to speak clearly about the court, that it's not an institution that we can defend in the way that it's acting because it's acting in a way that is deeply destructive of our rights.

And although I have been alone or, one of the few voices in the wind early on in making this criticism, more and more people are coming on board to recognize that the s- the Roberts Court is on a path of destruction and unless and until we reform it and limit its ability to damage our rights, it is going to continue to dismantle our rights.

Mm-hmm. All right, Lisa, we also get this question all the time. What can be done? What is there to do about a Chief Justice John Roberts, about a Supreme Court that is acting this way? 

I didn't mean to tee up that question. I didn't know you were gonna ask it at the end. But I'm delighted to answer it because there's a lot of reasons to be hopeful despite what's happening, despite this destructive ruling in Callais and the related rulings around Tennessee and Virginia and the like.

What's happening is more and more people understand that this court has to be reformed, and it's not just ethics reform, although that's necessary. 

If we are gonna pass a John Lewis, a voting rights amendment or restoration act, we need to limit the ability of this court to destroy it because John Roberts has shown quite clearly that they will reinterpret the law like blue is pink or whatever, just- 

in order to advance this agenda. We've seen this time and time again, and the Constitution specifically in Article 3 says that Congress can set limits on the jurisdiction of the court, and I think we have to consider that. As my colleague, Alex Aronson, over at Court Accountability, he said, like if you think about the Star Wars analogy, you can't reform the Death Star.

Like- you have to actually address what the Death Star is doing. Mm-hmm. You can't just send in your emissaries and be like, "Please, Death Star, have an ethics code," Yeah. 

Yeah. 

But we do need an ethics code, right? We do need to have a enforced ethics code. We do need to have term limits, and I think we need term limits up and down the judiciary so that people aren't gaming these circuits, so that Republicans replace Republicans, and they, once they've gained control of a majority of a circuit, they hold it forever and ever.

Yes. 

people should not be able to pull that trigger to advantage their party. We should have those rules in place. But we also need substantive changes. We need rules that apply to disclosures of where the spouses and the kids of the justices are working. 

Who's paying their salary, whether there are any conflicts there, but we substantially need changes in addressing the jurisdiction of the court, particularly on voting rights and other issues where, like climate change.

This court- ... has sought to put its hand on the scale of justice to block our ability as a nation to mitigate climate change. 

It knows in a real politics way that with the filibuster in the Senate, that the Republicans who are fossil fuel funded will stop any really meaningful climate change legislation from going forward, despite what we saw with Biden's effort to get investments in renewables.

Then we saw Trump claw those back to basically stop those renewable investments. The only way we can really move forward on climate change, for example, is by having agencies- That can use the laws on the books in order to try to mitigate the climate changes that are underway. And that's the very thing this court has claimed the agencies cannot do.

That only Congress can do. And it, and that means the Senate, which is now more and more anti-majoritarian, where we know Wyoming has as much say as California despite having- ... so many fewer voters. So the Senate is a problem for having progressive reform in almost every way. And so the Senate has to be reformed, too.

So- 

... 

what can people do? Support the reforms. Call for the reforms. The, the other side is counting on us thinking it's hopeless, thinking that we can't change it, that we're just stuck, but we're not stuck. And certainly the right wing doesn't ever think that it's stuck. It has such a bold and regressive agenda for us.

If we do not counter it, they are gonna prevail- ... and turn America into a further dystopian situation for most of the people living here, including for our liberties. And so I think we have no choice but to embrace reform and to say, "If you want voting rights restored, you need to reform the court.

If you want abortion- ... access to be protected at the federal level, you have to reform the court. If you want to do something about climate change for real, you need to reform the court with that." And call your members of Congress, call your senators, demand that they support meaningful, real, bold, robust court reform along with the robust changes we need to help our economy thrive, to protect our families, and protect our liberties from not just a president who's out of control, but from a court that has acted like the king maker- and is furthering this decimation of our, American society in the 21st century and try to drag us back to that robber baron era that was so hard for the vast majority of Americans. 

And Finally, Section D, REFORM, WHAT DO WE DO

Public trust in the court right now is at an all-time low. One of the most recent polls, conducted by NBC in the beginning of twenty twenty-six has shown that only twenty-two percent of voters have strong trust, strong confidence in the court. And the court's, ability to issue decisions, to enforce decisions rests on public trust.

So we can't have a court functioning when so many people are skeptical. court reform can help fix this, help reinvigorate this incredible institution with the trust that it needs in order to function properly. 

whatever one thinks the court ought to be doing, you need it to have trust from the public to do it- Yeah

because it has no army, it has no in-i-in-intrinsic ability to enforce its writ. Yeah. It really depends on the rest of us and on the political branches to take seriously what it says. So one of the, one of the first things, and i-is something we've been working on and we've all talked about, which is term limits for justices.

and it is striking how wide a consensus there is in the country for term limits. Yeah. It's, the... Not to

just end with- There was a recent Fox News poll- Fox News ... showing seventy-eight percent of Americans support 18-year term limits for justices. 

And so that's obviously a lot of Republicans and independents as well as Democrats. How would term limits work, generally, and how would they work as a statute as opposed to a constitutional amendment?

That's, of course, one of the big questions. 

Sure. So I'll start, and then please feel free to- yeah, yeah ... jump in. so the idea would be that every justice would sit on the court fulfilling the role that current justices fill for 18 years. After 18 years, justices would assume senior status, and they would still be making their same salary, they would still be considered Article III judges, but their role would be different.

And for the non-lawyers or the non-judges watching, senior status is a thing. 

Yes. 

It's been upheld by the courts. A lot of judges become senior status. They still do work, but they, but, and they're paid, but it's not the same as their earlier role on the court, and that would be the way to do it.

And we believe, we have argued, that you can do this not only, of course, by constitutional amendment, but by statute. this is something you've thought about and maybe I- Yeah ... as I understand it, your views have evolved over time, or what is it? Yeah, 

I mean, when I- 

Do you think it's doable?

So when I sat, on the Biden Supreme Court Commission, the, the whole way that was structured was just to investigate a set of questions around Supreme Court reform, including ethics and term limits, and it wasn't-- I didn't come in with a particular view on term limits.

I didn't have a lot of expertise on it. It really was hearing from experts, ordinary people. hundreds of people submitted, comments, maybe thousands, submitted comments. and so my views really evolved on term limits in that I didn't really have any. And one of the things I think to really emphasize that's, that, Miriam, you started with trust, and I think, term limits are a good idea.

Even if we like what the Court is doing and even if we trust what the Court is doing, they're just... They make sense from the perspective of any kind of constitutional system. my students, who helped with some of the research, they're credited in it, they researched globally and then in the States.

no system, virtually no system, has, they either have a retirement age or they have term limits. And 18 years would be if you're concerned about courts being too politically accountable or in the sense of, or too much like politicians. I don't think you have to be concerned with that with an 18-year term limit 'cause it's still quite long in comparative- Yeah

context, right? 

I think it was- Yeah ... the median length of a justice's tenure for the first 200 years- 

Yeah ... of the court. So it's, that was the other argument that really... so one is about the, is, trust and legitimacy in this moment, but also just good, a good, system for thinking about how the highest court of the land should operate, something that's had wide bipartisan consensus.

in terms of scholars, it wasn't progressives who first, recommended term limits. I mean- Oops ... there were a lot of conservatives who thought it... Yeah. 

Steven Calabresi, the- 

Steven Calabresi ... the, 

one of the co-founders of the Federalist Society. 

yeah. So it just, it seems like one of those things that's a, a good idea.

The 18 years also has the potential... We've seen these horrible conflicts around judicial confirmations, and I think you should probably talk about the other piece of this is which how you get confirmations to, move forward. But, the, one of the ideas behind 18 years is that you would have more regular appointments by presidents.

So you wouldn't have these, justices sitting, waiting for to retire based on who's going to appoint their successor, or appointing super young justices. Youth is a great thing, but you also- ... want wisdom and experience, and, 

The older I get, the more I- 

Yeah ... 

agree with that.

Yeah. Yeah. Yeah. And then at the same time, I think, all of us who have served in public life for a long time or have done a particular role also have to think about making way for younger generations. That's a kind of legitimacy too. So all of these things I think come together, the regularity of appointments, issues around trust, what it means to have a Supreme Court that is well-balanced with the other institutions, the executive branch and congressional branch.

All of those speak to it's a good idea not to have nine people on for so long with so much power. 

Miriam, you, the, the proposal in the Six Solutions paper, it would have a regular appointment. Every two years, a president would get to make an appointment. How would that work, and how would that- We hope, at least expect, drain some of the toxicity out of the confirmation process.

I think that, so much of the composition of the court is left to luck, in addition to an incentive to have, strategic retirements when there's a president in power that a certain party or a certain justice might want to be the one nominating the next justice. When there's a knowledge that every two years the president can nominate a justice, there's less fear of bad motive, there's less fear that a death or luck will change a court's composition for up to 30 or 40 years.

And so the temperature for each appointment is lowered because there'll be another confirmation in two years, another one in four years, another one in six years. I think that a message that really resonates with Americans is that no one person should have power for so long, and that's why Washington implemented two terms for president.

Why should a Supreme Court justice not be, following that same ethos? 

I've spoken to you about this before that you are most passionate about, and this is court packing, or adding justices to the court What is your court packing plan, Elie Mystal? 

Ultimately, to change the decisions on the Supreme Court, you need to change the people who are making the decisions.

The easiest way to do that is by expanding the number of justices on the Supreme Court. Again, I start with the Constitution, and I just want people to notice that every single one of these reforms I have started, I have grounded them in what the Constitution says or doesn't say. And you know another thing that it doesn't say?

Doesn't say how many justices are on the Supreme Court. We started with six justices on the Supreme Court, we expanded it over time to 10, we came back down to nine. Nine is where we've been for a bit, but that is not written down anywhere. You can change the number of justices on the Supreme Court through simple legislation.

Don't need a constitutional amendment, don't need a super 

majority- Congress just passes, just Congress writes a law, says, "This is how many justices are now in the court." 

218 votes in Congress, 51 votes in the Senate, unless we do the filibuster, which is also not written down, but whatever. a majority of the Senate, however defined, and signed by the president, and then you can have as many justices as you want.

I want- How 

many justices is the right number of justices? 

I want 29. 

Why 29? Now, 

why 29? let's start here. The Ninth Circuit Court of Appeals has 29 judges, and works just fine. 29 is not too big of a number. We'll find enough chairs. 20... If 29 is enough for California, 29 is enough for the entire, country.

So that's 

number one. But why does that make anything better that there are 29 of them? 

So the biggest benefit that I get with 29 is what I call the law of large numbers, right? Laws are complicated. The issues that the Supreme Court decides are complicated. We see even with six Republicans on the current court, they can't always keep themselves in line, right?

the idiosyncrasies between Amy Coney Barrett and Neil Gorsuch, right? The idiosyncrasies between how many beers Brett Kavanaugh had before he heard the case. these things- Okay, 

there's no proof that Brett Kavanaugh, I have to say, The Guardian has not reported anything- ... that says Brett Kavanaugh has too many beers before hearing the case.

that is factually true. the intri- the, the idiosyncrasies between these people mean that they can't always keep themselves in line, right? And so when we think about having 29 justices, when we think about a majority needing to be 15 people, do you know how hard it is to get 15 lawyers to agree on anything?

That's difficult. How many 15, 14 decisions do you think we'd really have on a 29-person court? 

And so it becomes a moderating force, 

is that the point? And so it becomes this amazing moderating force. The things that 15 people are gonna agree on are gonna be much, much more Center mass. much more moderate, much less extremist, right?

And that, I think, most people want. We want the big arguments to be handled in Congress through our elected representatives. we want the Supreme Court to do the easy things, and the more people you have, the harder it is to get a majority for extremism. And then there's this other issue, more of a technical issue, but super important.

Once the Court gets big enough that all of the justices can't sit on the same case, every lower court in the country runs their, uh, hearings by the panel system, which means three judges are chosen at random to hear a case and issue a ruling, and that ruling is the ruling of the court unless a majority of the Court vote to sit, what's called in the jargon, en banc- to overrule that three-judge panel. And while that's a lot of jargon, the upshot of it is that I want people to take away from this, it would mean that you wouldn't know who was gonna judge your case before you filed it. 

They're chosen at random. 

They're chosen at random, and that means that even in your legal argumentation, it has to be more moderate.

It has to be more mainstream 'cause you don't know who's gonna hear it. You don't know if it's gonna be a panel two to one of Republicans or two to one of Democrats. Again, this is not... None of this is theoretical. Look what happened in the actual abortion case. Look what happened in actual, uh, Dobbs v.

Jackson Women's Health, right? Mississippi came to court at first when Ruth Bader Ginsburg was alive and did not argue to overturn Roe, just argued to have its 15-week abortion ban upheld, right? And then Ruth Bader Ginsburg dies and gets replaced by Amy Coney Barrett, and Mississippi immediately changes its argument to overturning Roe v.

Wade outright. 

It went from a moderated argument from its perspective to a more extreme argument because it knew the court that it had. 

That is bad. You shouldn't get to pick your judges, right? And so you can imagine in this 29-person court with, be- hearing cases in three-judge panels, that you have this uncertainty of who you're gonna see, and thus you are encouraged to make more moderate, more mainstream, more center mass arguments without knowing who's gonna hear them.

You have had, multiple opportunities in the course of this conversation to talk about your lack of faith in the political will of the Democratic Party. 

what, so th- this is the reform that you're like, "This is the one that actually would work." How, what does the political fight for that look like? d- is that a realistic political fight?

what do you mean by realistic, Kai? When I s- When I started... I like to put it like this. When I started talking about court reform in 2015, I could not get a poll, I could not get a poll to see how that issue was polling. They wouldn't ask the question. that was the level of whatever. Now, it's polling at 42%.

The problem with moving the Democrats on this, and they're, again, they're scared of their own shadow, they're weak, and they're unwilling to swing big. But the real wall, I always say, comes from the voters, right? If you look at the Republican Party, they have trained their people to care about the court, not over the past five, six, seven years, but over the last 30, 40, 50 years.

Yeah. So the Republicans will lose primaries for being weak on the court. If you can tag a Republican senator especially as somebody who's weak on the court, as somebody who is not gonna, confirm, anti-abortion, justices, that person loses a primary. I can go all the way back to 2016. Donald Trump running for office, coming down the escalator, "He's a crazy man.

Mexicans are rapists. I hate these people. I, and here is my Supreme Court list as provided by Leonard Leo. It is to-" That's right. "And then I'm back to the crazy man." 

That's right. 

It was the one thing in 2016 that Trump was like, "Nope, not messing around with that," because he would lose. Yeah. Because Republicans would make him lose on the Supreme Court.

That has never happened to a Democrat. 

Why do you think Democrats don't take up court reform in the way that Republicans made, the Supreme Court so important to their politics and their primaries? 

Current establishment old Democrats grew up during a very brief time in our history where the Supreme Court was the progressive force in American politics.

They grew up during the Warren Court. They grew up during, that era between 1954 Brown v. Board of Ed, and, I would say which ended with the, elevation of Justice Rehnquist, to chief justice, right? They grew up in a very small period of time where the court was out there taking punches, taking one for the team, doing the things that were maybe too hard to do politically.

And they want to go back to that time, right? Remember, one of the real Benefits of the Supreme Court, depending on which party controls it, is that the Supreme Court can do politically unpopular things because they don't have to stand for election. So Democrats love the Supreme Court in the '60s and '70s when they are forcing racial equality down the throats of white people who do not want it.

And Republicans love the Supreme Court right now when they are forcing guns and death down the throats of people who do not want it, right? These are... The Supreme Court can take some heat, can take some weight that the political branches can't, and so there is a desire, I think, even from the political branch out of power, to prop up this institution that is the Supreme Court so it can one day take the shots again- Yeah

that they don't have the political will to muster. yeah. And I think that explains a Barack Obama, a Chuck Schumer, people who are super smart and totally understand everything that I'm talking about but don't seem to have the will, to champion reform. 

I saw yesterday that President Trump confirmed his 50th Article III judge of his term, this one to the Sixth Circuit Court of Appeals.

This is a lifetime appointment, and the guy is 39 years old. 39 years old, and seems to be one of the worst chuds imaginable. Anti-birthright citizenship, anti-abortion, anti-trans rights, has a conception of the Constitution that essentially grants no rights to anyone but the right of wealthy men, and wealthy white men in particular, to do as they please, however they please.

Perfect embodiment of Trump and everything he stands for. And did I mention this guy was 39? 39 years old. He'll be on the bench for decades. And there's obviously a lot more where that comes from. He's confirmed 50 people. One response to this is to say, you just have to impeach them all." But impeachment, you have to remember, is a two-step process.

You impeach in the House, and then you remove in the Senate, which is the sentence. It takes a simple majority in the House to impeach, and it takes a two-thirds majority in the Senate to remove. And sure, you can impeach these people, sure, and that, that's meaningful, right? It's a sanction. It's saying, "This person is unacceptable.

This particular guy was unqualified, just a, a toady, a stooge for the president, no reason he should be there." But you're not gonna remove them. That's basically implausible. You're not gonna get enough Republican votes to do a removal, and the odds of winning 67 seats in the Senate, I mean That hasn't happened since the 1930s, if I have my political history correct.

So what do you do? What do you do about all these Trump judges? Here you should take a page from the conversation around the Supreme Court. Now, the case for expanding the Supreme Court in political terms is just that the Trump judges, the Republican justices, are engaged in lawless, essentially anti-constitutional behavior, overturning precedents

With embarrassingly thin reasoning, making up doctrines to get the results that they want. And because removing them is not really feasible, the next best option is just to put more of them on there. Drown them out, essentially. Dilute their influence. And you can take a similar approach with the entire federal judiciary.

A thing to remember is that the only thing the Constitution says about the federal judiciary is that there shall be a Supreme Court and such inferior courts as Congress creates. Basically everything about the federal judiciary is structured by congressional statute. The number of district courts, the number of circuit courts, the number of judgeships on circuit court.

Everything is structured by Congress. Even much of the Supreme Court is structured by Congress, right? Other than saying that there shall be a Supreme Court and giving some, thin description of what its jurisdiction is, the Constitution doesn't have all that much to say. It used to be that Congress would routinely expand the size of the entire judiciary to keep pace with the population In the same way that it used to be Congress would expand the Supreme Court to keep pace with the number of circuits, number of states, the population.

The last major court expansion was in nineteen seventy-nine under Jimmy Carter. I believe the judiciary was expanded by more than a third. Hundreds of new judgeships created. Carter filled most, if not all of them, and many of those judges still sit on the bench. It's a huge part of Carter's overall legacy.

part of Carter's overall legacy Since that expansion, the population of the US has grown by a third. We got three hundred and forty million people, and we're still growing, and there hasn't been much in the way of change in the size of the courts. In fact, the US Judicial Commission, the body responsible for governing the courts and keeping an eye on things, is constantly writing about the fact that actually we need more judges.

Caseloads have grown too high. Individual judges have too much work. Cases move too slowly. So how do you deal with Trump judges in the federal judiciary? The same way you deal with them on the Supreme Court, you just drown them out. Any Supreme Court expansion plan should include a plan for the massive expansion of the federal judiciary.

Expand it by a third in keeping with the overall population. Create new circuits if necessary. Create new district courts. All of this is within the power of Congress. You can even take those districts and those circuits where Trump judges pre-predominate and split them up, break them up, reassign responsibilities.

Congress can't take away a judgeship, but there's nothing in the rule book that says you can't just assign the judge somewhere else. So many Republican plans for political dominance rest on the fact that the system has been static for decades. We have fifty states. We have a hundred senators. We have four hundred and thirty-five House members.

We have nine Supreme Court justices, so on and so forth. And the fact that things are static, that they haven't changed, means that if you can game the system, if you can lock in an advantage within that static system, then you win. It's hard to dislodge you. Sure, an exogenous shock might do it, but other than that, you're in good, you're in good shape The solution to this has to be to add dynamism back to the system, and the quickest and surest and constitutional path to adding dynamism is just to create more stuff, more judgeships, more states. Expand the federal judiciary, give at least DC statehood, and look for ways to add dynamism back to the system to make control of a static environment unviable. It's not a panacea, but I do think it's the first step in actually trying to come back from this miserable moment.

That's going to be it for today.

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Stict Scrutiny

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Why Is This Happening?

5-4

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