Factually! with Adam Conover - What the F did the Supreme Court Just Do with Leah Litman and Kate Shaw of Strict Scrutiny

Episode Date: July 10, 2024

The latest round of Supreme Court decisions will radically reshape America as we know it. From overturning the Chevron decision and stripping federal agencies of their ability to do their job...s, to giving presidents broad immunity for actions that would otherwise be considered criminal, it can be hard to fully grasp the impact of these rulings, both immediately and in the future. This week, Adam speaks with Leah Litman and Kate Shaw, law professors and hosts of the podcast "Strict Scrutiny," to make sense of how the Supreme Court has sold out our future and what, if anything, can be done to restore the court to its proper function.SUPPORT THE SHOW ON PATREON: https://www.patreon.com/adamconoverSEE ADAM ON TOUR: https://www.adamconover.net/tourdates/SUBSCRIBE to and RATE Factually! on:» Apple Podcasts: https://podcasts.apple.com/us/podcast/factually-with-adam-conover/id1463460577» Spotify: https://open.spotify.com/show/0fK8WJw4ffMc2NWydBlDyJAbout Headgum: Headgum is an LA & NY-based podcast network creating premium podcasts with the funniest, most engaging voices in comedy to achieve one goal: Making our audience and ourselves laugh. Listen to our shows at https://www.headgum.com.» SUBSCRIBE to Headgum: https://www.youtube.com/c/HeadGum?sub_confirmation=1» FOLLOW us on Twitter: http://twitter.com/headgum» FOLLOW us on Instagram: https://instagram.com/headgum/» FOLLOW us on TikTok: https://www.tiktok.com/@headgum» Advertise on Factually! via Gumball.fmSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Discussion (0)
Starting point is 00:00:00 This is a HeadGum Podcast. Hello and welcome to Factually. I'm't know anything. Hello and welcome to Factually, I'm Adam Conover. Thank you so much for joining me on the show again. You might have noticed that the Supreme Court has lost their motherfucking minds. In the last few weeks, our nation's highest court handed down a boatload of extreme decisions
Starting point is 00:00:39 that radically reshape American government, handing massive power to corporations, judges, and the president. They made it harder for the SEC to try people for securities fraud. They stopped a rule the EPA used to curb air pollution and most importantly, they overturned the Chevron decision, a rule with 40 years of precedent and in so doing, essentially gutted the federal agencies ability to do their job and regulate corporate America. Now, experts from just about any federal agency who ability to do their job and regulate corporate America.
Starting point is 00:01:05 Now, experts from just about any federal agency who want to issue rules related to science, technology, the environment, or the economy, you know, the thing that they're supposed to do under law, will have their decisions reviewed and possibly overturned by judges who cannot possibly be experts on those topics. It is a huge judicial power grab, and it means that anytime a giant corporation wants to stop the government from regulating it, all they have to do now is find a on those topics. It is a huge judicial power grab and it means that anytime a giant corporation wants to stop the government from regulating it, all they have to do now is find a friendly judge to overturn a rule they don't like. And finally, the court decided that the president of the United States has an immunity from prosecution so broad that he or she cannot be tried or punished for
Starting point is 00:01:40 basically anything they do in office, up to and including persecuting their political opponents trying to overturn an election or ordering literal assassinations, turning that office from a president into essentially a king. In other words, shit is fucked up. If you care about climate change, corporate power, or frankly democracy itself, you should be pissed off and extremely worried. And all of that is on top of the disastrous reversal of Roe versus Wade in 2022, which, as we have covered on this show, has led to medical crisis and death for countless women and others across this country. And all of this has happened because the Supreme Court has undergone an intense shift to the
Starting point is 00:02:19 right in recent years. The liberal feminist icon Ruth Bader Ginsburg died in late 2020 after refusing to step down earlier in Obama's second term despite her obvious and serious deterioration in health. And after Republican obstruction in the Senate, she was replaced with anti-abortion radical Amy Coney Barrett. Two more hard right justices, Neil Gorsuch and Brett Kavanaugh, the guy who committed a drunken sexual assault in high school, have also been added to the court for life, solidifying a 6-3 conservative supermajority. And you know, it's difficult to overstate what a radical shift this really is.
Starting point is 00:02:52 These justices serve for life, and shifts like this in the court's partisan makeup only happen every half century or so. And because the courts operate on such a long time scale, it was kind of hard when Barrett and the rest of them were appointed to gauge what their impact would be. It's kind of like climate change, right? It was clear that the appointment of these justices locked in bad outcomes far into the future,
Starting point is 00:03:15 just like emissions do, even if we can't immediately feel those changes today. Well, guess what? Now we're starting to fucking feel them. And these same people, these same justices, are going to be deciding many, many more cases for decades into the future, continuing to create a world where judges, companies, and presidents have more power and we the people have less. So what the fuck can be done about it?
Starting point is 00:03:41 How can we the people reign in the power of an unaccountable supreme court run amok? Well, to answer that question today, we have an incredible pair of guests. But before we get into it, I just want to remind you that if you want to support this show, you can do so on Patreon.
Starting point is 00:03:55 Head to patreon.com slash Adam Conover. Five bucks a month gets you every one of these episodes ad free. We'd love to have you join our online community. And if you want to come see me do stand standup comedy on the road, and I know you do, head to adamconover.net for tickets and tour dates.
Starting point is 00:04:09 Coming up soon, I'm heading to Phoenix, Arizona in late July, and then later next year, I'll be in Toronto, Canada, and I'm gonna have more dates on that site very soon. adamconover.net for tickets and tour dates. And now, let's get to this week's episode. To break down this radical shift at the Supreme Court and what can be done about it, our guests today are a duo of law professors who run one of
Starting point is 00:04:28 the very best legal podcasts out there, Strict Scrutiny on Crooked Media. Please welcome Leah Litman and Kate Shaw. Kate and Leah, thank you so much for being on the show today. Thank you for having us. Well, let's jump into it. Just how impactful was this Supreme Court term on the scale of, I don't know, every Supreme Court term ever? I feel like I should use weather metaphors like earthquakes, tsunami, like it was enormous.
Starting point is 00:04:54 I mean, it's the biggest Supreme Court term in recent years in terms of the consequences for the operation of government as we know it and the office of the presidency. It's hard to think of a term that even comes close to this one. I would just add that, you know, while this term's big cases might not have involved the major social issues, such as reproductive rights and justice,
Starting point is 00:05:14 or gun control, as some of the prior terms did, I think what Kate is saying, and I agree with, is the important decisions this term, like fundamentally alter the landscape of American government, and the role that Congress, the courts, the president and administrative agencies have just to name an issue. I mean, where do we even start with this?
Starting point is 00:05:36 Because between presidential immunity, Chevron, those are the two big ones that jump out to my mind. There's other decisions as well that haven't even been had as much attention drawn to them. Which is the largest in your mind? I mean, I do think that the, you're right, those are the top two. So I think reasonable minds could probably differ
Starting point is 00:05:53 as between them. I mean, the immunity decision came in the very last minute of the term, into July, which is unusual. The court typically doesn't go into July and handed just an enormous victory to Donald Trump. We think an enormous body blow to democracy and the idea of the separation of powers and checks and balances in providing this broad immunity to even ex-presidents for crimes they
Starting point is 00:06:20 commit in office. That's what the decision did so the impact on the January 6th prosecution of Donald Trump is that it is probably indefinitely delayed. If some part of the case could go forward if he doesn't win in November, that'll be years from now, if ever. It also throws into question the other pending prosecutions against Trump. It might even throw into question the New York State
Starting point is 00:06:42 conviction about a totally different set of issues. But because some of the evidence introduced at that trial that resulted in his conviction on 34 felony counts might have involved conversations that happened in his official capacity as president, this new rule might throw into question those convictions as well.
Starting point is 00:07:00 So huge impact on Donald Trump and legal accountability. But the prospective effect of that decision is in some ways more important in that it arguably shields all presidents forever from meaningful legal accountability in a way that we've never had. And I don't think most people ever even imagine. We've all understood that even if presidents are immune while they're in office, they become ordinary civilians
Starting point is 00:07:22 when they leave office for most purposes, including for purposes of the criminal law. So as to the presidency, it's huge, but I don't know, Leah. I mean, is it bigger than Loper-Brite, the case that overturned Chevron? That's an enormous one too. So I think it's difficult to kind of overstate the effect of these decisions.
Starting point is 00:07:35 And I would just add kind of like one more beat on the immunity decision in particular, because right now we are kind of in the midst of a presidential campaign in which you have Donald Trump and his surrogates doubling down on their threats to prosecute people in the media of a presidential campaign in which you have Donald Trump and his surrogates doubling down on their threats to prosecute people in the media who had the audacity to suggest that the 2020 election actually wasn't stolen and didn't involve a bunch of fraudulent votes.
Starting point is 00:07:53 And the reality is the immunity decision basically lays out the groundwork for allowing presidents who abuse their office for personal gain or political retribution to get off scot-free. Because it doesn't matter if they are acting for impermissible motives, to punish someone who criticized them or their political opponent.
Starting point is 00:08:12 All that matters is that they are exercising a power of the office. And the court made pretty clear that running investigations and prosecutions is a core presidential power. And I just think that is utterly terrifying in the context of a Donald Trump campaign and prospect of a future term. But the Chevron decision, and I would actually
Starting point is 00:08:30 lump in a few other administrative law decisions into that group, I think are hugely impactful for the amount of power they take away from expert agencies and place in the federal courts. So it's not just that the court overruled Chevron and said that federal courts instead of expert agencies will be resolving the meaning of all of these
Starting point is 00:08:51 hugely significant regulatory statutes in which agencies are involved, like the Clean Water Act, the Clean Air Act, the Food, Drug and Cosmetic Act, just like you name it, consumer finance law, federal securities law, statutes governing, health, safety, just like you name it, consumer finance law, federal securities law, statutes governing health, safety, welfare, you name it. All of those issues are now going to be resolved primarily
Starting point is 00:09:12 by the federal courts who are less accountable than the people in agencies and certainly know a lot less about all of these complex fields than agencies do. But also the Supreme Court handed down some other decisions in which they basically said, well, federal courts get to nitpick what agencies do. But also the Supreme Court handed down some other decisions in which they basically said, well, federal courts get to nitpick what agencies do. So when federal courts are asking whether an agency adequately justified their rule
Starting point is 00:09:35 or regulation or explained it, federal courts can basically ticky-tack, spot-check everything agencies do. And if they, the federal courts are not convinced, based on what the agency said, they get to invalidate what the agency did. And so those administrative law decisions are just so important because they mean that again,
Starting point is 00:09:54 all of these super important complex issues that affect all of our daily lives are now going to be resolved by Supreme Court justices rather than expert agencies. Wow. So let me me just rephrase myself to make sure I'm understanding Chevron correctly and maybe for the benefit of our audience, that the previous Chevron decision basically said that,
Starting point is 00:10:16 hey, courts need to defer to the agencies and how they interpret how laws are written. So the EPA sort of gets to decide, here's what the Clean Air Act means. And if there's a new pollutant, the EPA can say, ah, you know what, this pollutant, we should cover this as well. And the court reversed that decision,
Starting point is 00:10:31 meaning that now all of the lower courts, not just the Supreme Court, but the lower courts as well, will see themselves as having the ability to overturn agency decisions, to micromanage the agencies, basically giving them vetoes whenever they want. And that means that when say a big business doesn't like a new, you know, the FTC puts out a new regulation, the SEC, the EPA, you know, wants to regulate something in finance
Starting point is 00:10:57 and big business, whatever industry it is, that industry can now say, you know what, it's so much easier for us to go to the courts. All we have to do is find a judge who says, you know what, I'm smarter than the people at that agency and I don't think you should do that. And that that's basically going to be the effect of this decision. Do I have it right? I think that's exactly right. And look, large corporations do not like being regulated.
Starting point is 00:11:18 And you know, they have long challenged any effort by agencies, by government to impose limitations on what they can do to pass costs along to them. And the decision overruling Chevron and these other decisions that Leah was referencing in the aggregate make it much, much easier for big corporations to challenge regulations that they don't like, but that are in place for the collective good.
Starting point is 00:11:43 And so I think it's gonna be much more likely that courts will interpret statutes passed by Congress in ways that are advantageous to corporate interests and disadvantageous to values like health and safety and well-being of the general population. It also makes it much harder just for the government to do anything, right? Because, look, the Congress has been unable to pass basically more than one law a year, maybe if we're lucky. We get something like the Infrastructure Act or, you know, criminal justice reform. Maybe we get one of those every two or three years. Apart from that, Congress can't really agree on anything, so nothing gets done. And as
Starting point is 00:12:18 a result, the agency's putting out new rules has been one of the few areas where the government can actually do shit. You know, like the FTC put out a rule against what was it? Non-competed agreements in employment contracts, right? There's no way Congress ever would have passed that. Never would happen in a million years, but the FTC can do it. So by creating this new barrier to agencies being able to make rules, the judiciary has like disempowered the government. It's made the government even more incapable of doing anything. Now this whole swath of the government is gonna be mired in gridlock as well.
Starting point is 00:12:53 Does that sound right? So I think that that's right, but I think I also want to underscore that agencies are not just making all of these decisions and doing these things because of polarization and gridlock, but rather, you know, when Congress was actually passing a bunch just making all of these decisions and doing these things because of polarization and gridlock, but rather when Congress was actually passing a bunch of federal statutes, or even when it still passes major federal statutes, it usually empowers agencies to adopt regulations in order to implement
Starting point is 00:13:16 that statute because agencies have the expertise and the technical wherewithal to write more specific rules. So if you think about a statute like the Occupational Safety and Health Act, Congress in its limited expertise and knowledge cannot write specific rules that govern absolutely every industry and workplace setting. But agencies can. They can act more nimbly and quickly and with more expertise.
Starting point is 00:13:40 And so even putting aside the fact that Congress might not now be passing a bunch of legislation because of polarization and gridlock, hamstringing agencies is, as you say, basically a way of kneecapping effective government because you are putting a roadblock up in front of the very body that has the capacity and the knowledge to actually make all of the complex rules that govern our complex society. And can I just throw one more example in, which is just something people might be familiar with.
Starting point is 00:14:10 It's not about this term's rulings. This is actually an earlier opinion, but the Supreme Court opinion striking down the Biden administration's first ambitious effort to do student loan relief. The Supreme Court basically using, again, a different doctrine than the doctrine at issue in the cases we're talking about, but animated by the same anti-government deregulatory impulse,
Starting point is 00:14:30 basically said this broad statute passed by Congress that gives the Department of Education the power to decide when loan relief is necessary, didn't really do it in a specific and detail enough way to justify the way the Department of Education did the student loan forgiveness. And that's just an example of the way this court and other conservative federal courts will read statutes passed by Congress always to empower agencies to do as little meaningful work as possible. In particular, if they're going to be involving these interventions, that they're going to be money to powerful interests that are hostile to like in the student loan relief effort. I mean, how justifiable is this change?
Starting point is 00:15:08 Because what it looks like to me is that there's simply, you know, an ideological faction in business, in, you know, the folks who are, you know, campaigning to get certain people on the federal bench that just hates the agencies, just thinks the agencies shouldn't exist, that we don't like having these expert led organizations that have power. They occasionally do stuff we don't like. They regulate us in ways that we don't like. And they just, you know,
Starting point is 00:15:36 took a couple of decades to stack the judiciary and the Supreme Court. And that those justices have now disempowered that entire branch of government in because they, they simply don't like it. I mean, is it, is there a reason to look at it less cynically than that, that the forces that hate these agencies weren't able to, you know, deal them a really strong death blow here? No, I actually think there are more specific reasons that confirm that view. Um, specifically like the very specific and explicit things that Leonard Leo, you know, the longtime vice president of the Federalist Society, who was intimately involved in the selection of judges during the Donald Trump administration, things he said, where, you know,
Starting point is 00:16:12 he talked about one of their goals was basically to reign in the administrative state and that that was going to be a kind of primary criteria that they would use to select judges and justices. You also had former White House counsel, Don McGahn, basically saying our judicial appointments, the people that they are selecting as judges, are the flip side of their deregulatory coin, right? Their effort to peel back and roll back regulations. And I think there
Starting point is 00:16:36 is a reason why they have to do these things through the federal courts, right? If Congress was considering, for example, whether to repeal the Clean Air Act or the Occupational Safety and Health Act, there is no way you could get a majority or a super majority in the Senate to do that. It would be wildly unpopular. These are laws that benefit the greater public and public interest. And so instead you have to go through the federal courts
Starting point is 00:16:58 and that is what they did. What I think is interesting here is that they did it so boldly and baldly, right? Like the reason that Congress wouldn't do it is even, you know, deregulatory Republican lawmakers would face some amount of protest. They would get phone calls if they wanted to get rid of the Clean Air Act or whatever. They have to serve for election, but the Supreme Court doesn't. Obviously the justices are appointed for life.
Starting point is 00:17:23 However, there's been lots of talk over the last 20 years about how John Roberts, you know, doesn't want to be seen as an activist justice. He cares about the standing of the Supreme court, et cetera, et cetera. It seems like in this term though, the mask kind of came off there and they stopped trying to not be radicals or not be reactionaries to be a little bit
Starting point is 00:17:43 more accurate, I think. Why do you think that is? Do you feel there's been a change in that way that they've been more direct about what they're doing and less worried about blowback? I do think so. I think that the difference between a 6-3 and a 5-4 conservative court here is kind of everything.
Starting point is 00:18:01 So I actually think that in a 5-4 court, John Roberts sometimes played the institutionalist. So he steered the court towards sometimes compromise or moderate outcomes in at least some cases. He lacks the power to do that with five hard right justices now. And so what he seems to have decided is rather than throwing his lot in with the three Democratic appointees and kind of being in perpetual dissent in defense of the institution of the Supreme Court and American democracy and the rule of law, he's just decided to join forces with the hard right members of the court and exercise a degree of control over the decisions by authoring many of them himself, like in the immunity case. But because of the constituency, the other justices that he needs to keep in line if he is going to play any sort of leadership role among them, he has moved, I think, very significantly
Starting point is 00:18:55 to the right in this term. And so I do think that the kind of moderate institutionalist streak in John Roberts, it was never the full story of John Roberts, but I do think that there were flashes of that version of John Roberts in previous terms, including in big cases where he rejected efforts by the Trump administration to really bend the law, including doing things like adding a citizenship question to the 2020 census and rescinding the DACA program, the Deferred Action for Childhood Arrivals. Those were two really important five, four cases in which John Roberts authored the opinions with the Democratic appointees ruling against the Trump administration. It's hard for me to see that John Roberts anywhere in this term's decisions. You see much more the John Roberts of cases like Shelby County from 2013, the case decimating a key provision of the Voting Rights Act or Rucho versus Common Cause.
Starting point is 00:19:45 This is a case essentially allowing partisan extreme partisan gerrymandering without any federal constitutional check. Those are earlier cases, but I think that's always, again, been one John Roberts in addition to the kind of moderate John Roberts. But I think right now that is the only John Roberts Chief Justice that we have. The moderate institutionalist, I think, is nowhere to be seen. Can I add in one additional explanation for why this is happening, which is I
Starting point is 00:20:08 think that the court's Republican justices took a very terrifying lesson from the aftermath of them overruling Roe versus Wade. You know, after they overruled Roe versus Wade, there's no doubt that public opinion of the court plummeted, and you had people openly criticizing the court. And the following election went better for Democrats than people committed.
Starting point is 00:20:30 On the other hand, absolutely nothing happened to the Supreme Court. There was some additional momentum for court reform and ethics reform. But no one, even when Democrats kind of controlled Congress, did anything to meaningfully challenge the Supreme Court. And they took from that, like, look, we can basically do whatever we want. We can issue a wildly unpopular decision and no one is going to touch us.
Starting point is 00:20:51 And I worry that that is the lesson they have taken from that fiasco. Yeah. The pushback has been non-existent. I mean, you see people tweeting about, you know, the flag over justice Alito's house or like Clarence Thomas's trips. There were some ProPublica articles. But I see from their perspective, you're like, yeah, who gives a shit? I was placed here by a decades long conservative literal conspiracy and out in the open conspiracy to stack the court with me and my ideological allies. And here I am.
Starting point is 00:21:24 And I'm here for life. Like, wait, you're going to take me down with a flag? I flew like it's somebody needs to actually do something concrete. Uh, and yeah, I mean, to see them go from overturning Roe versus Wade, which is the one Supreme court case that most people were worried about in this country. To see nothing happen and then see them give such direct aid to the president who appointed many of them is just so bald.
Starting point is 00:21:52 I mean, compare that to 2000 when people were talking, you know, Bush v Gore, and you know, that was partisan looking enough. This is like 10 times more partisan looking. This is, we're literally protecting the president who appointed us from prosecution and still nobody is talking about doing anything. So I guess let's talk about what could be done.
Starting point is 00:22:21 I mean, what are the steps that you would suggest be taken even at this late date to, you know, prevent the Supreme Court from just, you know, continually being at war with the rest of the federal government? I mean, virtually, you know, the court actually can be regulated by Congress
Starting point is 00:22:38 to a significant degree. So the kinds of cases the court hears, the number of justices who sit on the court, all of these things are simply a creature of statute, right? The constitution doesn't create the size of the Supreme Court, Congress does by statute. So you need to elect to Congress and to the White House individuals who have an interest in regulating the Supreme Court, disempowering the Supreme Court, and you also need to send a clear message that that's a priority of voters. The role of
Starting point is 00:23:07 the Supreme Court in a democracy is a limited one. It has been historically a real one, but a limited one for the most part. The record, I would say, has been at best mixed in terms of whether the court has acted to facilitate or thwart the functioning of democracy, but it seems really clear right now that it is acting primarily, maybe exclusively, to thwart the functioning of democracy, but it seems really clear right now that it is acting primarily, maybe exclusively to thwart the functioning of democracy. And the voters, I think, simply need to send a message that that's not consistent with the role of the Supreme Court in a constitutional order. And so disempowering the court and maybe increasing the size of the court are two important steps, but all of that requires people to vote. And right now, the Democratic Party is the only one that's interested in regulating
Starting point is 00:23:45 the Supreme Court, so that would mean voting in Democrats in both House of Congress and in the White House. But also just keeping attention on the court. I mean, I think these are small examples, but I think meaningful ones, that investigative reporting and public attention do kind of matter and move the needle. Like Justice Thomas filed amendments to his financial
Starting point is 00:24:05 disclosure reports for years. He failed to disclose the trips he took on the dime of Harlan Crow, this billionaire benefactor. And this recent filing of amended reports is a tacit acknowledgement of the investigative reporting having unearthed something that should have been previously reported. And so they are moving incrementally, but moving in response to public scrutiny. And so I think keeping that scrutiny on and ratcheting it up are critical. I agree with all of that,
Starting point is 00:24:32 but why haven't we seen a movement from that in the Democratic party? I mean, what you haven't seen even since Roe is you have not seen President Biden or any really other mainstream Democrat campaign on, we need to regulate the Supreme Court. The Supreme Court has run amok. We need to add justices. Here's my proposed bill, right?
Starting point is 00:24:52 You haven't even seen, as far as I know, maybe I'm wrong, I haven't even seen the, you know, the one progressive Senator put out the one bill that we know is never gonna get passed, but here's my plan, right? Just to like have somebody write it the fuck down. It just, you know, the legislators and the entire sort of apparatus of elected seem very, very reluctant to even state this
Starting point is 00:25:14 as a goal of Supreme Court reform. Why is there that inertia against change? Yeah, so, you know, there are a handful of bills that have been introduced, whether it's expanding the size of the Supreme Court or ethics reform or term limits or whatnot. So some of that is out there. But I think it's absolutely correct
Starting point is 00:25:36 that the Democratic Party as a whole, and particularly leaders within the Democratic Party, are really reticent to do that. And I guess I think that there are at least three explanations for why that might be. One is that over the last however many decades, the Democratic Party has largely failed to find a way of talking to voters about the importance of the courts. The Republican Party has occupied that field. They have signaled the importance of the courts and gotten voters to care about the courts.
Starting point is 00:26:01 And so what that means is the Democratic Party right now does not have an incentive that comes from voters to care about the courts because that has not been a primary issue among Democratic voters. When you ask Democratic voters what do they care about, what Democratic representatives are hearing from their constituents, it is not necessarily primarily about the courts. And so that feedback loop is not spurring them
Starting point is 00:26:22 to take on this issue. But I also think the problem is deeper than that. I think a second explanation is partially a gerontocracy. We are living in a world in which we are run by officials who are of a previous generation. And that previous generation grew up and was socialized during an era when the Supreme Court behaved very differently.
Starting point is 00:26:43 Many of the Democratic leaders kind of learned about the law during the Warren Court era or immediately after that. And the Warren Court era refers to the time when the Supreme Court was led by Chief Justice Earl Warren. That is the court that invalidated segregation in public schools and issued important voting rights decisions. And so in their mind, they still think about the Supreme Court
Starting point is 00:27:04 in those terms and worry, well, look, still think about the Supreme Court in those terms and worry, well, look, if I undermine the Supreme Court, am I going to be undermining the possibility that a Supreme Court in the future, maybe the near future, could be advancing causes of civil rights and undermining the authority of that court is concerning? And I think that that's part of the explanation. And then a third explanation I would put on the table is that a lot of people in the Democratic Party are just straight up institutionalists.
Starting point is 00:27:29 They are having faith in the prospect that our institutions will save us, even when those institutions are run by a bunch of ideological hoodlums who are more than happy to just wreak havoc on American government as we know it. And I think they are just unwilling or unable to overcome that reticence because of that presumptive institutionalism that runs very deep in them. You know, the problem is that like I'm an institutionalist as well,
Starting point is 00:27:56 in the sense that institutions are important and they're very powerful. But you have to acknowledge that changing the rules of how the institutions function is part of the way that you exert power, right? And that is something that Republicans have understood very, very well. It's something that Democrats used to understand. If you look at like LBJ, for instance, was a guy who was very happy to change the rules of the political situation in order to exert power. And you've seen this by contrast on the Democratic side, this desire to say, well, let's leave the rules as they are. Oh, that's a little extreme. We can't really do that.
Starting point is 00:28:30 Let's just keep playing the same game where it's like, the other team is just like, you know, going through the rule book with a sharpie, just fucking with shit and like changing it. And, you know, while you're standing still, it's kind of baffling to me. Do you find it that frustrating? Yes, I mean, absolutely.
Starting point is 00:28:49 And I think that it's such an important point, which is that critiquing institutions and reforming institutions is not the same thing as burning down institutions. And I do think that there is a kind of a lesion of the distinction between those two that some democratic leaders who I think, Leah's exactly right in the diagnosis
Starting point is 00:29:06 are for all the reasons that Leah just laid out, very, very reluctant to criticize the court sometimes make. You're not suggesting absolutely dismantling a branch of government. If you say there are fundamental flaws at the moment and in order to preserve its role in our constitutional order, we have to fix those flaws. Democracy is supposed to be dynamic. I think it is right. There's been an asymmetry in both the appreciation for that dynamism, the harnessing of the potential of that dynamism, and the creativity and ingenuity in both suggesting and pursuing fundamental reforms.
Starting point is 00:29:44 I do think that the left really needs to figure out how to do that, because our current the current institutions are just not serving the values that the left needs them to serve, needs them to at least a function in order to actually see those substantive kind of policy priorities, you know, made real. Yeah, you know, I feel like the the left, the Democrats tend to treat government like old baseball fans where they're like, oh, the game has been the way it is forever. We can't change anything.
Starting point is 00:30:13 And they forget that, like, we made up the rules to baseball and that, in fact, the other side is playing like Calvin Ball, like they're making up the rules as they go along. And like, you know, you can adjust things. Hey, is the game too slow? You can add a pitch clock and is,
Starting point is 00:30:26 is one branch of government stopping every other branch of government from doing anything? Well, you could add a couple of justices or you could make a couple other changes. Well, let me ask about this. Something that you often hear about the Supreme Court is that the Supreme Court has this sort of, you know,
Starting point is 00:30:47 omnipotent power over the rest of the government in a sense, but it also has no way of enforcing that power. It doesn't have control over the military, et cetera. It just sort of needs everybody else to obey its dictates, right? And, and treat it seriously. And that's a, that's a difficult idea for even me to understand because I try to think like, what would it mean for the court to lose so much legitimacy
Starting point is 00:31:09 that we simply stop doing what it says, right? That like, if you take that more zoomed out view of how politics works, that there needs to be an enforcement mechanism. Is there any like real danger of the court like losing legitimacy to that degree? Because you hear that idea floated sometimes and I've always like been curious what it actually means in practice. Yeah. So I think that there are kind of different iterations of that idea of not respecting Supreme Court decisions.
Starting point is 00:31:36 You know, a very narrow understanding of the Supreme Court's authority would be to say that well what the Supreme Court does is basically resolve the rights between parties to a case, but not any further than that. And I'll come back to explain what I mean by that in a second. And then a second, like broader understanding of the court's authority would be to say, no, the Supreme Court definitively
Starting point is 00:31:57 resolves these legal issues or legal questions for the entire country. So if you take the view that all the Supreme Court does is just resolve the rights of the parties between cases, this was a view that former President Abraham Lincoln held. So when the Supreme Court in Dred Scott versus Sanford invalidated the Missouri Compromise and concluded that black people could not be citizens for purposes of the US Constitution, Abraham Lincoln was like, okay, fine. You can say that for Dred Scott in that case, vis-a-vis the person that Dred Scott is, or vis-a-vis the person that is claiming to own Dred Scott, but you can't
Starting point is 00:32:31 tell me that I, Abraham Lincoln, as president, cannot treat black people as citizens. So he went ahead and issued passports to black people, notwithstanding, that passports were only available to US citizens. And so he took the narrow view that, look, the Supreme Court can only resolve the rights of parties, but they can't tell me what my view of the Constitution is or what my constitutional obligations are, again, outside the contours of a specific case.
Starting point is 00:32:57 And I think our constitutional culture has gradually come around to the second understanding of the Supreme Court's authority. And that's in part because the Supreme Court exercised its power wisely and for judicious ends, particularly during the Warren Court era. And it was during that era that the Supreme Court said, our interpretations of the Constitution must be respected. In that instance, declaring that segregation in public schools
Starting point is 00:33:19 was unconstitutional. And so I think people built up this view that, of course, we have to allow the courts to definitively resolve in public schools was unconstitutional. And so I think people built up this view that, of course, we have to allow the courts to definitively resolve these issues because the court did so wisely. When that was a very contingent development of that principle, and it doesn't have to be the case in order for our institutions to function in, I think,
Starting point is 00:33:42 democratic and effective ways. So that was kind of an academic explanation, but at least different understandings about what the Supreme Court does in American government. Yeah, so is there a chance that over the next few years, our understanding of what the Supreme Court does starts to change again? If you actually were to get a president in who took a more muscular approach to the Supreme
Starting point is 00:34:07 Court, a more adversarial approach, tried to stack the judiciary a little bit, but even if he or she couldn't, you know, said, Hey, guess what? I'm not going to respect this part of this decision. I'm going to order my agency to do X, Y, Z. You know, could we be seeing the beginning of another sea change towards the way Americans respect the Supreme Court as opposed to omnipotent justice lords on high? Hey, these are like nine idiots who we can disagree with
Starting point is 00:34:35 and tell to go fuck off if we want to. I think potentially, and honestly, I'm not sure it needs to, that shift needs to await a president to sort of like, you know, take the lead in trying to disempower the Supreme Court. So maybe an example, just from the immunity decision that we started off talking about, is that what the Supreme Court has said, and I don't want to minimize, you know, just like how wildly significant and I think
Starting point is 00:34:58 lawless the Supreme Court's opinion is, but the Supreme Court was talking about the president and the president's immunity from criminal prosecution after leaving the White House. But that doesn't need to control the way the rest of us understand legal obligations and the meaning of the Constitution. So to take an example that the majority in the dissent fight over in the opinion, which is the president ordering SEAL Team 6 to assassinate a political rival. Sonia Sotomayor's dissent says that would be immune on the Supreme Court's, the majority's reasoning because that would be an official act. He's a commander in chief. He tells subordinates to do something. Even if that's unlawful, that's an official act. And the majority says, well, that's, you know, you're engaging in, you know, fear mongering and
Starting point is 00:35:43 far-fetched hypotheticals. I think the dissent has the better of the argument that on the just on the majority's own logic, that seems like official conduct and thus immune. But that doesn't mean that the individuals who are in SEAL Team 6 or in the leadership structure of the Department of Defense or other aspects of the federal government don't still need to decide for themselves what the Constitution and the law requires. We have an assassination ban as a matter of international aspects of the federal government don't still need to decide for themselves what the constitution and the law requires. We have an assassination ban as a matter of international law. There are executive orders banning assassination. That's a slightly different cut at the same point that Leah was making, which is that there are even an opinion like the immunity
Starting point is 00:36:18 opinion, there are narrower and broader ways to think about what the Supreme Court has done. Either it's answered all questions for all of us for all time, or it's done something narrower and more specific. I think that, again, individuals in positions that really matter when it comes to carrying out the work of the people in government can take a narrower view of what the Supreme Court has done and not to say that opinion means for all time that even the most egregious orders by the president have to be followed rather than this was just a decision about a president facing prosecution and doesn't necessarily control the legal obligations and duties of everyone else. And so I think there are other ways and individuals inside agencies and the executive branch kind of broadly can more
Starting point is 00:37:02 narrowly read some of these administrative law decisions that we were just talking about in ways that leave some space for agencies to act knowing the Supreme Court might try to push back. I think that there are, even short of outright defiance of the Supreme Court, ways to more narrowly approach what they do and hopefully thereby shrink their now oversized importance in our kind of constitutional culture and collective lives. It's and it seems like that is what is going to happen and that they have ensured this in some way, which makes it really striking that the conservative members of the court seem to be less concerned with their own legitimacy,
Starting point is 00:37:42 legitimacy than you might expect that they are fine causing a crisis of legitimacy to a certain extent, as long as it achieves their near-term political goals. Literally helping a current or sorry, not current, but a man currently running for president seems to be more important to them than the overall thrust of the law. I mean, how sincere do you think their professed legal ideologies are or legal beliefs versus then simply do what's doing what's expedient and what the people who have placed them there want them to do?
Starting point is 00:38:19 Or can it be both? I think it can be both. I think there are ways in which legal ideologies overlap with political ideologies. So for example, in the administrative law decisions, obviously the Republicans, as a political party, favor deregulation and don't particularly like administrative agencies.
Starting point is 00:38:38 But the Republican justices have a legal ideology that complements that. They don't think the Constitution generally authorizes Congress to give that kind of authority to administrative agencies. And those things overlap whether or not it's intentionally or consciously so. I don't think it ultimately matters. But I also think there are instances
Starting point is 00:38:57 where legal ideology just cannot explain what they are doing. In particular, the selectivity with which the Republican justices empower Republican presidents, but not Democratic presidents, is, of course, quite striking. So I think there are ways that explain it and ways that do not. But I think that one reason why they're not scared about their dwindling legitimacy goes back to what we were talking about earlier.
Starting point is 00:39:21 No one has done anything to them, despite the mounting ethics scandals, despite them overruling Roe versus Wade and unleashing these catastrophic consequences on the country. I mean, think back to 24 years ago, the Supreme Court effectively decided the presidential election in Bush versus Gore and the country just kind of went on and people thought like, oh, we just need to continue to accept the Supreme Court. So, you know, they have internalized the lesson that they can basically get away with murder and they are going to continue acting that way
Starting point is 00:39:48 until proven otherwise. So let's return to the topic of what we can do about it. We talked a lot about the inaction. If you two were to put forward a bill, if you were to author a bill, what would it call for? And, you know, what can we do to make this more of a salient issue for the voting public, especially when again,
Starting point is 00:40:12 the electeds who we would hope would are not currently doing so? How do we ring the alarm bell about this as a culture? I mean, I'll throw out a few things that would be in the bill. I mean, one, adding four to six seats to the Supreme Court, um, uh, and potentially, um, tackling term limits. There's a big question about whether you could do term limits in a bill or whether you'd have to amend the constitution to do that. Um, but it might be worth trying and let the Supreme Court strike it down if they want to. Um, I'm sorry, it is kind of perverse for the Supreme Court, because of course, the Supreme Court would consider whether or not it's constitutional to give them term
Starting point is 00:40:48 limits. I think I know which way they would decide. I mean, does it seem who gives a shit what the Constitution says? Like you're trying to put term limits against the people who aren't able to veto that. So wouldn't they just veto it as a matter of practical politics? Sure. Which is why I think you need to
Starting point is 00:41:02 add those four to six seats to the Supreme Court in order to do to six seats to the Supreme Court in order to do anything to constrain the Supreme Court. So in addition to the provisions that Kate was mentioning, I would add on meaningful ethics reform with independent enforcement to enforce recusals and limitations on the gifts and largesse that Supreme Court justices can receive.
Starting point is 00:41:20 I would also add in some provisions that limit the authority of the Supreme Court to strike down federal laws that say, protect voting rights or empower administrative agencies to decide complex regulatory issues or that secure reproductive rights and justice. And again, if you pass those laws without expanding the Supreme Court, those laws are going to go to the Supreme Court, which is just going to strike them down. And so I think you need to do both and, and everything, you know, in order to have a chance at really reshaping the role that the Supreme Court has in government today.
Starting point is 00:41:51 Yeah. And I think that we need to make the conversation broader than simply, hey, the Democrats want to do XYZ and the Republican appointees appointed justices won't let them. I think the conversation needs to be more like, hey, hold on a second. Does it make sense that the court of last resort that decides so many issues and has almost unilateral power is just nine people who serve lifetime appointments? Like does that fundamentally make sense as a way to organize one's government? And for me, I would say the answer has to be no. Now, let alone there are hundreds of ways the federal government operates that I
Starting point is 00:42:30 would put into that same bucket. Electoral college doesn't make sense. 50 senators doesn't make sense. There's a lot of things that don't, but at this point it is really starting to look like the Supreme court is almost the most dysfunctional part of government. And then it's such a shift because it used to be seen as this is what is going to save liberal democracy, is the courts will be on the side and be the sort of, you know, the steady hand on the, on the till of democracy.
Starting point is 00:42:54 That's a stunning change to happen in just what, the last five years and how it's seen. I think you can trace the dysfunction back lots, you know, 24 to Bush v Gore, you know, the assent of Amy Coney Barrett and the cementing of the 6-3 conservative supermajority, Citizens United, Shelby County. I mean, I think there are a lot of like pivot points in the last two, two and a half decades. But the last five years, the last four years really, the change has really accelerated. And I do think that you put
Starting point is 00:43:19 your finger, when you mentioned the Electoral College, the Senate, the Supreme Court, these are all kind of fundamentally minoritarian or counter-majoritarian institutions. The general public actually wants pretty progressive things if you poll nationally, and obviously it's an electorate that is more diverse than the younger it gets. And yet, these are three institutions that over-empower and over-represent white and older and rural interests. That's in fundamental tension with a changing nation and its desires. I do think that there's a question about how long that building tension can endure. I think of all of those institutions, but we're focused on the Supreme Court, but that's not to denigrate the importance of reforming the electoral college and the Senate,
Starting point is 00:44:05 which are enormous problems as well. But I do think it's a pressing imperative if we wanna have a healthy and functioning democracy. I couldn't agree more, and I can't thank you both enough for coming on the show to talk to us about it. It's really been wonderful having you. Where can people find your work? Plug all your things, please, for our listeners
Starting point is 00:44:22 who I'm sure enjoyed, who I'm sure wanna hear more from you. So first, thanks so much for having us and talking about the Supreme Court on your podcast. This is a baby step toward getting more people invested in the courts and aware of them, but you can hear Kate, me, and our co-host, Melissa, on Strict Scrutiny, the podcast about the Supreme Court
Starting point is 00:44:39 and the legal culture that surrounds it. Episodes are out every Monday, any place you can get a podcast podcast and bonus episodes whenever the Supreme Court does anything, especially egregious. Well, I'm sure after this conversation, people are going to want to listen to you talk about the Supreme Court every single week. It's been fascinating. And yeah, I can't thank you enough for coming on.
Starting point is 00:44:58 Thanks so much for being here. Thank you so much for having us. Thanks. Well, thank you once again to Leah and Kate for coming on the show. Once again, their podcast is called Strict Scrutiny. Get it wherever you get your podcasts. If you want to support this podcast, you can do so on Patreon. Head to patreon.com slash Adam Conover.
Starting point is 00:45:14 Five bucks a month gets you every episode of this show ad free and supports the work we are doing directly. You can also join our awesome online community. We would love to have you if you support at the $15 a month level. I will read your name at the end of this podcast and put it in the credits of every single one of my video monologues. This week I wanna thank Ruben Solvin-Vehlin, Jeffrey Tipton, Crypto Attorneys,
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Starting point is 00:45:50 for all my tickets and tour dates. I wanna thank my producers, Tony Wilson and Sam Roudman, everybody here at HeadGum for making this show possible. And until next time, I'll see you on Factually. Thank you so much for listening. I don't know anything. I don't know anything!

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