Pod Save America - “That new Biden smell.” (with Sen. Bernie Sanders!)

Episode Date: June 21, 2021

Joe Biden’s approval rating takes a hit among some Democrats as Republicans obstruct his agenda, law professor Melissa Murray joins to discuss whether the Supreme Court is as right-wing as we thought, and Senator Bernie Sanders talks to Tommy Vietor about the latest negotiations in Congress over voting rights, infrastructure, and more.For a closed-captioned version of this episode, please visit crooked.com/podsaveamerica. For a transcript of this episode, please email [e-mail] and include the name of the podcast.

Welcome to Pod Save America. I'm Jon Favreau. I'm Jon Lovett. I'm Tommy Vitor. On today's show, Joe Biden's approval takes a hit among some Democrats. Law professor Melissa Murray is back to talk about whether the Supreme Court is as right-wing as we thought. And Senator Bernie Sanders is here to talk to Tommy about the latest negotiations in Congress over voting rights, infrastructure, and more. Before that, some news. The first episode of Edith is out. We partnered with our friends at q code to produce

a new scripted comedy starring rosamund pike that explores the untold true-ish story of america's secret first female president edith wilson the first lady to woodrow wilson new episodes of edith are released every thursday follow on spotify apple, or wherever you get your podcasts. Exciting, guys. Everybody check out Edith. It's very good. You will like it. It's very funny.

I laughed. Subscribe to it right now. I laughed hard on the way to the office in the morning where we don't have any AC, guys. So I'm living in our climate future. Staying away from that office then. Yeah. Okay. No, thank you. Also, this week, Love It or Leave It presents

Out of the Closets Into the Streets, a live pride extravaganza filled with games, comedy sets, and of course, gay news. Love it. Tell us all about it. We have an incredible lineup. It is on Thursday at four o'clock Pacific, seven o'clock Eastern.

You can watch it live. It'll also be Love It or Leave It that Saturday. But we're really excited about it. We have an incredible lineup of guests and we're raising money for the Trans Justice Funding Project, which puts money into local organizations across the country fighting for trans people,

led by trans people. So we're very, it's just, very excited about this event. We have, the lineup will be announced soon. It is amazing. So check it out. All right, let's get to the news. Joe Biden comes home from Europe this week to a Republican Party that's trying to kill most of his legislative agenda

and a small gang of moderate Democrats who either can't see that or won't stop it. And now there's new evidence that Washington's bipartisan clusterfuck is starting to take a toll on everyone involved. After about five months of the president enjoying an incredibly steady average approval rating of between 53 and 54 percent. Five thirty eight dot com has Biden's average approval at fifty one point eight percent, a tick down, but still the lowest of his presidency. The new Monmouth poll came out last week, has Biden's approval at 48 percent, a six point decrease from April, but a fall that's being driven largely by Democrats. decrease from April, but a fall that's being driven largely by Democrats, the percentage of whom who said the country is on the wrong track also rose by 20 points to nearly one in three. For Congress, it's even worse. Just 32 percent of Democrats approved down from 63 percent in April. I should say that the approval ratings for Biden in Congress have taken a hit with independents

as well. Lovett, what do you think is causing this slight but real dip? I mean, I think he's, you know, we're losing that new Biden smell a little bit. But I mean, there's a moment, look, there's a moment when- What does that, can you describe what that smells like? That's not, that's not. No, but there is a moment where like, where your new car becomes your car. And it's like the first time you grind the hubcaps against a curb, you know, or like you ding this or like when it's just now it's just your car. One thing I think is interesting, it's like one of the reasons Biden's approval rating has been so steady is actually that he didn't get the kind of honeymoon with Republicans that normal presidents have gotten in the past.

Even Barack Obama got just a decade ago. And I think the result of that is actually we'd be having a different conversation about President Biden's approving, like kind of like coming down to earth. But for the fact that, you know, misinformation and propaganda means that his numbers paid like a tax from the beginning. And actually, a bunch of Republicans have kind of ticked up their support because he's not the monster, the incoherent, wandering, demented monster that he was painted to be controlled by like a marionette by by Vice President Kamala Harris. And that said, I think going from weeks of Joe Biden's on a roll, he's addressing the pandemic and passing big bills to headlines like is Joe Biden's agenda stalled for good? Don't help, you know, your approval rating amongst the people who support you. Well, Tommy, the same poll shows that Biden's policies are still

as popular as ever. 60% support the American Rescue Plan, 68% support the American Jobs Plan, and 61% support the American Families Plan. What do you make of the gap between Biden's popularity now and the popularity of his plans? I mean, isn't it true that everyone hates the kid who just got back from their year abroad in Europe and like pronounces Barcelona with the TH and like, that could be part of it. I mean, I think there's a few pieces of this, right? Won't stop talking about all his new friends that he made. Yeah, we get it. Oh, you love prosciutto? Okay, way to really go crazy with your palate. I mean, there's a couple pieces of this, right? Like you said, the Biden approval dropped, congressional approval dropped, and then the right track,

wrong track numbers also dropped. So to me, that suggests frustration among Democrats based on feeling like, oh, maybe this is, you know, the agenda's bogged down in Congress, some of the headlines Lovett talked about. And then I think there's other concerns that are like, you know, concerns about inflation that I think are making people feel a little more anxious about the economy, a little more anxious about how we're going to exit this COVID period. And it's just something to keep an eye on. I mean, in terms of that gap, I think a lot of it, like Lovett was saying, the gap, a lot of it comes from the fact that Republican voters don't just dislike Joe Biden, they intensely dislike him. I think six out of 10 Republican voters have a strong disapproval of Biden. I think that's not Joe Biden's fault, right? That tells you a lot about the damage that

was done by months and months and months of lies that claimed Joe Biden sold the election. And so ultimately, it's easier for a voter to like an idea from a politician they don't like. There were some Trump ideas I liked, but like in this case, it's some vanilla stuff like roads and bridges. But again, you know, like you also probably are seeing some of a delta here because there is high approval from Democrats for the policy ideas. And then maybe a little bit of frustration about the effort to pass it or what they perceive as a lack of effort to pass it. So that's the way I would square that circle. Yeah, I think that's it. Shit's not getting done.

I mean, we had, you know, at the beginning of the term, we have he passes the American Rescue Plan. He's the next FDR. Right. We're already we're already putting him on Mount Rushmore. We're talking about this transformative presidency, which was, you know, probably a bit of an over-exaggeration, just a bit, because the media tends to do that sometimes. And now, like Levitt said, you're seeing all these headlines about a stalled agenda. And if you're someone who thinks the plans are great, but don't see them getting passed, and all you hear every fucking

week is Joe Manchin says no and stalled in Congress, this and that, like, you're going to get frustrated. And you're going to, you know, I mean, Lovett, do you think Democrats are right to feel disappointed and frustrated so far? Yeah, I mean, of course. Yes, I don't. Where they direct that, I think, is is more at issue. I don't I think even like all but the most committed watchers of politics are not as familiar with, like the the vagaries of the Senate, the filibuster,

the fact that Joe Manchin and Kyrsten Sinema are putting up hurdles that like, why is there a bipartisan infrastructure bill versus the better bill? What is the status of that? I think that all ends up sounding a bit like noise and nothing changing. So I think like that frustration is valid. I think the question is, is it right to point it at Joe Biden? I think like, of course, in part, I think not. And I think, is it right to point that entirely at Joe Biden? Of course not. Is there a criticism? Is it worth exploring like the criticism mounted sometimes by the left of like Joe Biden's strategy to get some of these things done? Like, of course, that's what we talk about. That's what we should be talking about. But overall, being frustrated at the fact

that we can't get some of these big items through a Democratic Senate with a Democratic House and a Democratic presidency, like, yeah, that's really fucking frustrating. Tommy, what can Joe Biden actually do here? Like, what would you suggest if you were in the White House? I mean, a couple of things. So like, there's some tactical stuff.

I did notice that the Democratic Party has been running a lot of paid digital ads about these bills, about some of his accomplishments. I think I saw that in the last couple months, the DSCC has spent like $1.7 million on Google ads and Facebook ads to promote the American jobs plan. So I think that's good and important because as Levitt said, like, I'm sure there's a lot of Democratic voters who are listening to Pod Save America and watching MSNBC and pissed off about the filibuster and blah, blah, blah. Then there's just like most of the country that is going outside for the first time and going to the movies and not wearing a mask and just like living their lives. And I think the way you're going to reach a lot of those

people who are just not paying as much attention is through paid ads. Um, I hope that the Biden team will end up pushing mansionchin and others a little harder behind the scenes to acknowledge some of the urgency we're seeing, especially around issues like voting rights. I hope they also find some wedge issues that we can talk about that makes the debate more uncomfortable for Republicans. And it's not somehow just about Biden. I'm guessing Biden doesn't want to dig into this hard or go after Republicans hard right now and give McConnell or others a pretext for blowing up bipartisan talks. But the fact that Republicans refuse to raise taxes on rich people or corporations,

but want to raise the gas tax on every person in the country seems like a political gift to me. And I would like to hear more ways that they are going to elevate that contrast and drive it home in the homestretch. So there's a few things there. I think that's all right. I wonder how much of the Manchin pushing should happen behind the scenes and how much should start happening a little bit more publicly. And I know you have to be careful of this because every time you say anything about Joe Manchin, if Joe Biden even says the words Joe Manchin, it's treated in the press as a jab. Yeah. Tommy loves this especially. But like I do. Look, we were this is a tough one, right? We were

all in the White House when the narrative about Obama was Obama must lead. Why won't Obama lead? And like, you know, Dan and I talked about Green Lantern theory and there's this idea that the president can like magically bend the entire city of Washington to his will. But I do wonder, like, how much I kind of think that Joe Biden so far has been like a manager and he needs to be more like a fighter. Right. Like they talk about him like he's managing the pandemic. Well, he's managing the economy. Well, he's getting us back. And I think a little more fight on behalf of the middle class, like you're saying too, Tommy, by saying we need to tax the wealthy. We need to help fight for inequality.

We need to help fight for people in this country. A little more fighting spirit, a little less managing through public remarks. I don't know that that's going to change Joe Manchin's mind. I think we should be very clear on that. But I think you might as well try to fight because at the end of the day, you're going to own the success or failure, despite whether it's Joe Manchin's fault or not. Yeah, I mean, I think the reality is like this is a. Like the the exact place on the dial of Joe Biden's approval rating in June of 2021 is incidental. We are talking about passing a trillion dollar infrastructure package. There is talk of potentially following that with a much bigger partisan bill that does a bunch of different pieces of the infrastructure plan, of the family plan.

And I think if we are talking about like what Joe Biden has to do to be a successful president, like the message takes a backseat to whether or not he succeeds in passing those two things like that is that is the question. And I don't feel like we like no, no, no message can fix if the if the if the either the bipartisan infrastructure deal or the larger reconciliation bill don't pass or for the people that doesn't pass, no messaging is going to fix that. No. And like Joe Biden, Joe Biden is an incredibly consistent messenger. His approval rating was higher when he was showing incredible contrast to the failed

pandemic management that came before him and passing a giant piece of legislation. You know, like that that really helps. That is his message. So anything like, and so basically like a lot of this comes down to what will move Joe Manchin and Kyrsten Sinema and a few other moderates to making that agenda pass. And like, we just honestly, I think sometimes we don't fully understand the conversations that are taken behind the scenes, like what the tenor is, what the, what the actual, the actual posture is. Yeah. I mean, with these numbers, I think,

like for the reelect, do I think that a bunch of Democrats are going to decide they're so disappointed that they voted for Donald Trump again or Tom Cotton, whoever they put up? No. But I do think this kind of reduced enthusiasm is something that we should be mindful of and concerned about as we go into the midterms, which are usually entirely about getting your base out. I do think, look, I fundamentally agree with their theory of the case that we got which are usually entirely about getting your base out. I do think like, look, I like fundamentally agree with their theory of the case that like, we got to do a good job, we got to get the pandemic behind us, we got to fix the economy. But I think like, we have also seen some warnings about, you know, thinking that's a panacea, like economic

indicators are increasingly partisan. Trump's president, Republicans are psyched about the economy, Democrats president, they're bummed out, right? It's increasingly difficult to reach voters to tell them what you actually did. Fox News watchers are only going to hear about like critical race theory or the cultural grievance of the day. Sporadic voters aren't going to read the news at all, or they're going to read Facebook. And then lastly, like the thing that would really concern me the most is that the best economy, the best economic ratings in the world are going to struggle to overcome a super gerrymandered map or like harsh voter suppression laws or worse yet, like a state legislature that just decides they're going to change the results of an election they don't like. So like that's why this push on voting rights is maybe the most important thing he does, because like that is just looming in the background. It's something that should freak all of us out. I agree. And I think, you know,

if I was in the in the White House advising him, like I think he should be out there even more on voting rights. Right. Like Schumer is going to put it put up for the People Act, either the Joe Manchin version or the original version or both Tuesday. And like Joe Biden should be out there and he should be fighting for this bill and he should be fighting for this compromise. You know, there's reports that the White House is going to embrace the Manchin compromise. That's fine. Look, if you've got all 50 Senate Democrats and most of the House on board with this Manchin compromise and Joe Biden is supportive to then go go out there and fight for that and fight for it hard. And it might not it still might not make a difference. You might not convince these Democrats to break the filibuster like

Manchin and Sinema, but you've got to go down swinging on this one. I agree. And look, there are some economic indicators that are still mixed. Right. So the Biden people would say probably it's too early. Right. Like we're going to it's going to take some time for the economy to get back to full strength. It's going to take some time still for more people to get vaccinated for the pandemic to fully go away. Once that happens though, people will feel the results of that and they will support Joe Biden based on that feelings. But I agree with you, Tommy, that, you know, because we are in such a polarized environment, I do not know if simply improving people's lives and having them feel that improvement is enough to get, you know, get Democrats over the finish line. One other thing, though, that the I feel like the

Biden team has been like really kind of good about, especially like not like on on like sort of economic indicators generally, just like, hey, this summer is gonna be really fucking weird. All right. And everybody just needs to chill out like inflation, job numbers, like the consumer, And everybody just needs to chill out. Like inflation, job numbers, like the consumer behavior. Like we're all fucked up. We're all behaving in a new way,

like coming out of a pandemic for the first time in a hundred years. And like some of this is like, I imagine going to be reflected in just polling that we're not going to be able to totally trust or understand for a little bit of time. Like we got to, it's an odd moment. There's a lot of noise. Also, God knows what we're going to be talking about an odd moment. There's a lot, there's a lot of noise. Also,

God knows what we're going to be talking about as we go into the midterms or the reelect. It could be the economy. It could be China. It could be terrorism. It could be like critical race theory for pets. Like who the fuck knows what,

what Fox News is going to drive and force us to talk about for the next couple of years. So, you know, I think they're right. There's that article in the New Yorker that I think about every once in a while about Seattle falling into the ocean. I just, I'm reminded of once in a while, you know, I think there's that article in The New Yorker that I think about every once in a while

about Seattle falling into the ocean. I just, I'm reminded of once in a while, you know, it's out there. I couldn't read it. But that's why, like, if you're the Biden folks, if you're Democrats, you want to be going into these midterms with voters looking at Biden and looking at Democrats

and saying, these are the people who are fighting for me and the Republicans are not, right? It's not just like, we're going to give you marks on how you handled the pandemic and the economy. This is this like there's going to be all these fights. And I want these people on my side because I think they're on my side. And so you have to show that and you have to show that through your messaging and also what you actually get done. All right. The Supreme Court still has 12 opinions left to issue in this term, but already some of its rulings and unexpected coalitions have sparked a debate about just how conservative the newest justices are, including last week's 7-2 decision to uphold the Affordable

Care Act for the third time. Joining us to make sense of all this is NYU professor of law and co-host of the Strict Scrutiny podcast, Melissa Murray. Melissa, welcome back to the pod. Thanks for having me back. Let's start with California versus Texas, where the court said that a group of Republican states did not have the standing to challenge the constitutionality of the Affordable Care Act, an opinion that was written by Justice Breyer and joined not only by the liberal justices, but by Justices Roberts, Thomas, Kavanaugh and Barrett.

Melissa, why do you think these conservative justices signed on? And what, if anything, can this ruling tell us about how the court views the ACA? Well, to be clear, this was a ruling on procedural grounds that the litigants did not have standing to bring these claims. So technically, the court did not get into the merits of this case at all. So it's not as though the conservative justices who signed on to, quote unquote, save the ACA were signing on or endorsing the idea of federally subsidized health care in any way. So this whole idea that the ACA has been saved by this opinion and by these conservative justices, I think is a little misstated. It is a narrow procedural decision

about who may enter federal court and present what kinds of claims. And, you know, it is the kind of decision, I think, that the court often deploys using these procedural grounds in order to avoid a thornier or more controversial issue. So just think back to 2013 when we had the first marriage equality case, Perry versus Hollingsworth, that came before the court. That was also dismissed on standing grounds in part because I think the court was not ready in 2013 to take up the broader question of whether the right to marry included a right to marry the person of the same sex. And so we punted there, the court punted there. And then two years later, we got the decision in Obergefell versus Hodges, where apparently they were ready. Justice Alito issued

a fairly catty dissent, where he sarcastically referred to this case as the third in an epic trilogy and said, no one can fail to be impressed by the length to which this court has been willing to go to defend the ACA against all threats. What do you think that was all about? I think you're right. It was a bowl of milk for table two. It was very catty. And I think the cattiness or the snarkiness was really directed at the chief justice who, you know, in very famously in 2012, voted with the liberals to uphold the ACA in the first instance, and then later, the majority widened, but the chief justice was again in the majority to uphold the ACA once again in King versus Burwell. So, you know, Justice Alito's dissent here was notable in that

the decision written by Justice Breyer was a relatively spare and efficient 16 pages, and Justice Alito's dissent is twice that. And he is really all in his feelings about this. He's very exercised. The more notable thing, though, I mean, I think Justice Alito being very perplexed and perturbed about this is not surprising. I mean, I think anyone could have predicted that. I think what is less predictable is that he got Justice Gorsuch to join him on this dissent. And, you know, it is a dissent that is sort of broadly thinking about, you know, the purposes of the ACA, what Congress was doing when it zeroed out the individual mandate penalty, all of these things that really sort of focus on what

was Congress thinking at the time they did certain things. And Neil Gorsuch is not the guy who cares about what Congress is trying to do at any particular moment. He's the guy who cares about what did Congress write on the page and what can someone reading the words that Congress wrote, what do they mean? He is a committed textualist. But this is a dissent that is really more about Congress's purposes, Congress's motivations, not about what did Congress write? Yeah, it's alarming. Love it. Reporters were asking Democrats last week whether they regret arguing last fall that Justice Barrett would overturn the Affordable Care Act if given the chance. Would you like to issue an apology? Obviously not. I rarely issue apologies when they're earned. like to issue an apology? Obviously not. I rarely issue apologies when they're earned.

But look, I'm not I'm not a lawyer or an expert. I have a great LSAT score. I'd like Melissa to know that. But it seems to me that like a lot of this is treating Amy Coney Barrett and actually the court generally is like a magic, like a magic nine ball, I guess. And that but like tell me if I'm wrong, but like, she was very explicit about her ideology. She said, she's a radical, she's a radical in her reading of the constitution, but in her writings and in what she said in her hearings, she talked about the ways in which she avoids applying that. And in this case, they didn't rule on the Affordable Care Act. For all we know, and I think we would all bet, I don't know what Melissa would say about this, but we'd bet that she does believe the Affordable Care Act is unconstitutional. But she didn't have to rule on that because didn't get

that far because they threw it out on standing, which is just about the right to bring the suit in the first place. So I'm just going to reach over here and science point to yes. Melissa does have a magic eight ball for those of you listening at home. What do you think of magic nine ball? I got where you I was perplexed at first, but then I got where you're going with it. I like that. I like that. So I think we all need to be mindful of the context in which this occurred.

I mean, we were discussing whether or not the Supreme Court would strike down the health care statute in the middle of what is the most pronounced global health crisis that we have seen in our lifetime. And I think any legal realist would say that most people on the court, even the committed conservatives, would worry about what that looked like, would worry about what it would mean for the court going forward were they to do that. And so I think it's entirely not surprising that the court would find this procedural way to avoid that broader question of whether or not the ACA or the individual mandate continues to be constitutional or unconstitutional by dealing with it in this very narrow jurisdictional way. I don't think

that means that Amy Coney Barrett is now in favor of the Affordable Care Act. I don't think it makes her a progressive. I don't think it means much of anything at all, except that some majority of the court was unwilling to take up that bigger question. And this procedural out, and I think often these procedural decisions are outs, was a way to avoid that more thorny question. Love it. You have some questions on Fulton. Yeah. So one of the big cases was Fulton v. Pennsylvania.

The Supreme Court ruled that the city of Philadelphia, city of Philadelphia. What did I say? Pennsylvania. Oh, sorry. It's not the city. I'm starting again. It's a podcast. We can edit.

So tell me more about your LSAT score. We've had it. Sorry. Now you're screwing me. Now you're making good content. Just joking. Just joking. The other big case was Fulton versus City of Pennsylvania. The Supreme Court ruled that the city violated the First Amendment when it denied a Catholic foster care agency a contract because they discriminate against married same-sex couples. Were you surprised that this was a

unanimous decision? And why was Samuel Alito so pissed about it? Okay, so lots to say about this. This is a decision, again, the unanimity, I think, is a little deceptive. And I think it raises the question, why did the liberals on the court sign on to a decision that basically allows the city of Philadelphia to allow Catholic services to administer this portion of their foster care system and in doing so to discriminate against same-sex couples. I think the reason the liberals joined this is because it's really narrowly written. They talk specifically about the idea that because the city of Philadelphia's policies allows for exemptions, that means that they are necessarily

considering religion as part of it, and that is a discrimination against religion. But more importantly, the fact that there are exemptions means that this is not a generally applicable law that is neutral towards religion, which means it takes off the table the broader question of whether this 1990 decision, employment division versus Smith, should be overruled. Because according to the majority, Smith isn't applicable here because this law doesn't implicate Smith because it allows for these exceptions and therefore it is not generally applicable or neutral. I think that's the reason why the liberals joined this. It is the least of the two evils. This could have been a very sweeping decision that overruled Employment

Division versus Smith, which is a 1990s case that basically says you don't get an out from generally neutral law or general, you don't get an out from neutral laws of general applicability like anti-discrimination laws just because there is some incidental burden on religion. Wiping out Smith would basically allow almost any religious entity to claim that a neutral law had an impact on them because it required them to sort of change their behavior or to do something that they otherwise say that their religion would not allow them to do. So the prospect of overruling Smith was really huge. And I think if you look at some of the other cases that have come down this term, not necessarily on the court's regular docket, but on the shadow docket and the COVID docket,

you can already see the sort of breadcrumbs being scattered that, you know, Smith is not long for this world. So to me, the surprising thing was they didn't actually overrule Smith. And I think this is a kind of liberal appeasement, like we'll go along with you on this. We will allow Catholic services to discriminate against same-sex couples and foster care as long as you don't completely upend the way that we normally think about free exercise of religion by overruling Smith. And I think that's why Justice Scalia or just see Freudian slip. That's why Justice Alito is so exercised here, because I think he was one of the ones who took up this case for the express purpose of reorienting free exercise doctrine by overruling Smith. And he says that in this

dissent. We have had so many invitations to take this up. So many people find that Smith is incoherent and out of step with current free exercise jurisprudence. We need to just correct this and get rid of this obviously erroneous decision. And the majority said, no dice. We're not doing that. So I'm glad you brought that up because, you know, these cases, look, I'm not a legal expert. I watch this like everybody else. And I end up being concerned about outcomes. Like these are cases about discrimination against gay couples. There's the contraception mandate case that happened last year. But you brought up Smith. Smith is a Scalia decision and was more concerned about free exercise being used to justify things that were abhorrent to conservatives at the time, being things like gay marriage or drug use.

And because so much of this debate has been along this one partisan alignment, I'm actually just curious how you think about this question of where free exercise meets these sort of exemptions and like how progressive legal experts think about this irrespective of outcomes. So I think it's really important, the point that you made about the provenance of all this, when Smith is decided in 1990s, and perhaps it's useful for your listeners to hear a little bit of the background of the case. This was a decision in which a Native American challenged his ineligibility for employment benefits. And the reason he was ineligible for unemployment benefits was because he was fired for using peyote, which is a hallucinogenic drug. But he argued his use of

peyote was connected to his religious observance. He was Native American. This was part of one of their ceremonies. And that was the reason why he was using it. And so when he was fired and then made ineligible for the unemployment benefits because of the drug use, he said that was an infringement on his free exercise rights. The court comes in. And again, this is a Native American. So this is not a sort of traditional majority religion. The court says, this is a neutral law that just says you can't get unemployment benefits if the reason you're fired is because of drug use. It's not meant to hobble religion in any way. It's not meant to stick it to the faithful. It's

just a general law of neutral. It's a neutral law of general applicability. And noted liberal Antonin Scalia writes it. Noted liberal William H. Rehnquist signs on to it. And, you know, it's a pretty bipartisan composition of the court. Stevens is in there. O'Connor concurs there. I mean, it's not a liberal decision per se. It's just sort of, you know, this is how they're viewing free exercise at the time. I don't think that free exercise has a particular ideological character, although

more recently we have seen it become more muscular under the tutelage of the conservative justice. It's like a more expansive understanding of free exercise that serves conservative ideologies, but I don't think it has to be that way. So, you know, for example, some very progressive Catholics have argued that they should be exempt from criminal laws that prohibit providing aid to migrants crossing the borders because their Catholic faith requires them to help and serve the indigent and those in distress. So you could understand that as a kind of free exercise accommodation of religious observance. But we, in the last couple of years, I think have become more traditionally attuned to thinking about free exercise as something that serves evangelicals, conservatives, and conservative ideologies, but it doesn't have to be that way. And I think looking back where Smith started, you can just sort of see like that was a minority religious sect that is really illegible to our understanding of classical Christian or evangelical Christianity that has come to embody the free exercise clause today.

So those are the two big cases from last week. Melissa, I also want to get your take on this lead from last week's New York Times analysis of the Supreme Court's latest term. It starts. It's by Adam Liptak. It starts. Justice Amy Coney Barrett's arrival on the Supreme Court seemed to create a conservative juggernaut. Instead, its liberal wing is having a good run. Do you buy that? I think rumors of the death of the conservative juggernaut have been grossly exaggerated in this particular instance. You know, I think looking at just the argued cases, you might get the impression that this has been a big win for progressives across the board.

But I don't think that's right. very, very narrow victories, if you want to call them victories, that really just sort of stave off a more desultory outcome for progressives. I don't think these are the sort of full-throated, robust victories that people would like to see. More importantly, that analysis that Liptack offers doesn't take into account what has been happening on the shadow docket, which is that docket of emergency appeals that the court often takes up without full briefing or oral argument. And we see a lot of the COVID cases, the death penalty cases on that docket, FDA versus ACOG, which was really important reproductive rights case earlier this year, that came up on the shadow docket. And those cases have been much, much more skewed to the conservative end of things.

So to say that the court has somehow surprisingly liberal or surprisingly progressive, I think, is to really miss the forest for the trees. You have to take all of this in concert. And there's a broader picture here than just what's been argued or these narrow decisions that we've just gotten. And we're also not done with the rest of this term. Have you seen any indications that either Kavanaugh or Barrett might be less conservative than you expected? I don't know that we've seen a lot from either of them. So, you know, we've had the NCAA case today where Justice Kavanaugh, noted basketball fan, today where Justice Kavanaugh, noted basketball fan, wrote a concurrence in which he invited more cases to challenge whether the NCAA's policies, all of their policies, are consistent with antitrust laws, which suggests, you know, I'm not saying that that's liberal or progressive,

but it certainly seems activist, if you will, sort of the invitation to industries to bring more litigation before the court, which I think is interesting. Justice Barrett, we've only had, I think, one or two opinions from her, one majority, and then the concurrence in the ACA case. So I think it's a little too soon to tell. Next term, when we hear that major abortion case on the Mississippi abortion restriction and Dobbs, I think we'll get a better picture of what the addition of both of these justices might mean for the court going forward. Lovett, do you think that even the appearance of unexpected moderation sort of hurts the movement to reform the Supreme Court?

Yeah, of course. Yes, of course it does. Absolutely. Like, you know, if the fact that if three liberal justices had written like a broadside against a more sweeping decision against gay couples, like I think we'd be having a different conversation. I think we'll be having a different conversation next year if Roe is either overturned or extremely limited. Like this is a long-term effort to reform the court. But the only thing I was curious about what Melissa thought about this was that even if there's a little bit of like,

because the appearance of consensus, these stories about consensus may remove a little bit the wind from the sails. Like it does seem to me that there's still been some value to this kind of pressure from the outside. And I'm curious if you see some of the effort to kind of, by Roberts, to create bigger than five, four majorities or six, three majorities is in some way of a reflection of the fear of the pressure from the outside that this is a partisan institution, a Republican institution. I think that's decidedly the case. And I don't think it's just the chief justice who worries about this. I think Justice Breyer is worried about this as well. I mean, I think one way that you could read these sets of decisions is sort of Justice Breyer making good on his point that we can and

should have compromise on the court. We shouldn't be talking about structural reform of the court. Instead, what we should be talking about is really getting the politics out of it. And I think you could take these, you know, unanimous conservative or unanimous progressive victories as evidence of, you know, Justice Breyer trying to cross the aisle, trying to work with his colleagues to fashion decisions where they can all get along. But I mean, again, the broader the majority, the narrower the decision ground is. Again, and I think that suggests they're really not as close together as you think. They're actually quite far apart in terms of where they are on some of these issues. And in order to have that kind of unanimity or consensus, you really have to decide

these cases quite narrowly. And does that support or give fuel to the effort to reform the court? I don't know. But I don't think people talking about this term as a triumph of the liberals or the triumph of consensus is going to put much wind in the sails of those who favor structural reform. And I think maybe that's the point. I mean, even Alito in one of his many angry missives talks about how narrow some of these decisions are as saying basically you're avoiding these big questions. Yeah. But speaking of working the refs, so Mitch McConnell has now said explicitly that he will not fill a Supreme Court seat if he's in the majority in 2024. He's even not committing to do it in 2023, which means basically we have until the, you

know, if there's a chance we lose the Senate, we have until the end of this congressional term to fill an open seat. Do you know, obviously, Justice Breyer is very concerned about politics and how it plays inside of the court. Do you know if he has access to the news? Does he know about the news? I think he does. I'm pretty sure he knows that he is the subject of much discussion and speculation. You know, I don't know that he until an election and ultimately not being able to, has got to be a kind of strong caveat to anyone who thinks about their position in a certain multi-member institution in a particular way. And as much as, you know, he likes and wants consensus, I can't imagine that Justice Breyer does not recognize that the political winds

are against consensus if he holds out for much longer. So, you know, I don't imagine that Justice Breyer does not recognize that the political wins are against consensus if he holds out for much longer. So, you know, I don't know what that means, but surely he must be aware of it. I mean, it does seem like on his own terms, like if he is concerned about the politicization of the court, presumably one thing to avoid is a rending battle in which the sides decide they can't fill it because of partisan divisions. in which the sides decide they can't fill it because of partisan divisions. No, I think that's exactly right. I mean, you know, I wonder if he's thinking about those McConnell comments. I mean, because those comments just make clear like this is going like if this gets to the point where it's even close to an election or just like abutting an election, this is going to be a huge partisan, you know, cluster or whatever. And it's going to be bad. And now is really the safe time to do this. And I don't even know how cluster or whatever. And it's going to be bad. And now is really the safe

time to do this. I don't even know how safe it is. Like, who knows? Like, you know, what happens in this Senate? You know, I don't know. But if there was going to be a time to step down, to be assured that a Democratic president could nominate your successor, like now would be the time. And I can't imagine that he doesn't get that. Yeah. And now would be the time to make the process as depoliticized as possible. Right. If he did it now, especially, I mean, he's got to look at some of the some of the judges who've just been confirmed in the Senate have gotten confirmed with pretty lopsided margins. His former clerk, Katonji Brown-Jackson. I was just about to say that. Right. So Katonji Jackson gets confirmed with, you know, a healthy majority. And if he stepped down now and she was happened, you know, Biden appointed her to the Supreme Court, you would you would expect at least that the Republicans

who just voted for her for the D.C. Circuit Court of Appeals would do the same. Or anyway, Melissa Murray, thank you so much for coming back to Pod Save America. Always a pleasure. Everyone go check out Strict Scrutiny. It's a fantastic podcast. And when we come back, Senator Bernie Sanders is here to chat with Tommy. I am thrilled to welcome back to the show Vermont Senator Bernie Sanders. Senator, thank you so much for joining us. My pleasure. So, Senator, thank you. I'd love to just geek out on infrastructure to start, if you don't mind. So there are these two tracks in Congress when it comes to passing this infrastructure bill. There's a bipartisan bill that invests in hard infrastructure, roads, bridges, etc.

Then there are these separate talks by Democrats about using the reconciliation process to patch a much larger bill that includes other critical spending to address climate change, healthcare priorities, etc. Can you give us just a sense of what the latest is with that reconciliation track? Well, I think you gave us a good overview, Tommy. On one hand, you have 20-some-odd Democrats and Republicans working on a very narrow infrastructure proposal, which deals with what we traditionally call infrastructure. What we don't know at this point is how they're going to fund it. And they are still debating it. So I can't tell you this.

They don't know yet. they don't know yet. But it sounds to me what we are hearing is might be an increase in the gas tax, might be a fee on electric vehicles. It might be, they give it a fancy term, but I think it sounds to me like infrastructure privatization. Not a new idea, but a very bad idea. So the problem I have with what they're doing is, A, it is too small even to deal with roads and bridges. It's about one quarter of what Biden wanted. Number two, their funding appears to be at this point very regressive and anti-working class. of viewers know, study after study has shown that you've got billionaires out there, some of the wealthiest people in this country, in a given year pay zero in federal income tax. You've got large multinational corporations making huge profits, pay zero in federal income tax. They, for their own political reasons or whatever, choose not to deal with that. They rather have use of these coming down heavy on working people. Obviously not something I am sympathetic to. We, on the other hand, are kind of taking a different look at what we mean infrastructure.

Infrastructure is not just roads and bridges. You know, I could say to you, what's the infrastructure of your program? You know, what's your staffing line? Where's the money coming from? That's infrastructure. And when I look at infrastructure, it is what are the foundations that a modern society needs to run and run well. And when you look at the world that way, obviously, you got to deal with climate. I mean, how irresponsible, how insane it would be if we didn't deal with climate when the future of the planet is at stake. If you're talking about a modern society, how do you not deal with child care and education and higher education, making sure that we have the best educated workforce in the world? How do you not deal with housing when you have close to 600,000 people are homeless, 18 million households spending 50% of their limited incomes

for housing, et cetera, et cetera. So, you know, healthcare, you know, I think it's imperative that we expand Medicare to cover dental, eyeglasses, and hearing aids. We are the only major country on earth not to have paid family and medical leave. Is that acceptable? I think not. So those are some of the issues that I believe have got to be included in a serious reconciliation bill. Yeah, look, I mean, everything you're saying makes total sense to me. I do think just sort of process-wise, there's some concern among progressives about whether some of the more moderate Democrats will actually support this following reconciliation bill, because I remember well when Joe Manchin shot a bullet through a cap-and-trade bill, right? So it makes me wonder a bit about his willingness to aggressively tackle climate change.

You might want to get Senator Schumer on, but to the best of my knowledge, leadership is very, very clear. There ain't going to be a small bipartisan infrastructure bill that gets to the floor unless there is an ironclad agreement that there will be support in very specific ways for a larger reconciliation bill. Now, you might ask, why in God's name do you need two bills? And the answer is, I haven't a clue. But there are some people who are wedded to the idea they love bipartisanship, you know, and so that's the way it is. But to answer your question, it, you know, is the best I can understand. We will not accept, I will not accept

a smaller bill at the expense of something larger. That's great news. I mean, I saw some House members have even suggested withholding a vote on the bipartisan bill until there's some agreement on reconciliation. Do you think that's a good idea? Is that necessary? We'll see if it's necessary or not. But what I can tell you is it's a backup plan, if you like. But given the crises that we face today, and I got to say this, to me, this is legislation not only dealing with roads and bridges of water and child care and paid family and medical leave and expanding Medicare. Tell me, you know what is even more significant than all of that? It is whether we're going to regain the faith of the American people in their democracy. Because let me tell you, we're going to have a vote on that tomorrow.

If anybody out there, they say, oh, well, Biden's doing a good job. You got Nancy in the House and you got Chuck in the Senate. We don't have to worry. If that's your attitude, man, you are dead, dead wrong. Worry. Worry a whole lot. There's an election coming up in 2022. worry, worry a whole lot. There's an election coming up in 2022. And if anyone thinks that the Democrats are shooing to maintain control of the House and the Senate, you are absolutely wrong. What we have got to show is millions of especially working people, Black and white and Latino,

Native American, Asian American, that in fact, government can work for them, not just the billionaire class. Let me give you an example of what I mean. Next month, struggling working class families all over this country are going to get a check, whatever it may be, $300 or so per child as part of the child tax credit that we passed. Now, you know what that means? You got two kids, your family's making $40,000 or $50,000 a year. You know what that means to get $600 a month to help you raise your kids? It means everything. It means that we're going to take a real dent out of childhood poverty in America. And we got to continue to do that, to show working class people that government can, in fact, stand up for them and not just wealthy campaign contributors.

Yeah, I agree with that as well. I mean, I'm glad you brought up this voting rights bill. You know, Senator Schumer is going to put a vote on the floor, I believe tomorrow on S1, the For the People Act. Senator Manchin has said he doesn't support the bill in its current form. Do you think there's a chance the Senate votes on an amended version that sort of includes the changes that he wants? And just more broadly, you said Democrats, if you're not paying attention to this, time to wake up. What do you say to Democrats who feel like, man, we worked our tails off to win those seats in Georgia, to give Democrats control of the Senate. How are people like Manchin and Kyrsten Sinema and others not fighting like hell for this? This seems so urgent to us.

That's a long, long discussion, which maybe another time we can have uh i do not respond positively to people who say you know we worked our tails off i worked my tail off i'm sure you did we all did millions of people did but you know what the other side is working their tail as well and in many ways even more effectively than outsiders. What we are taking on now is a Republican Party, and for all the people, please note this is not the old Republican Party. It's not the Ronald Reagan Party. It's not the Bush Party. This is a whole new version of a party which is based on the big lie that Trump actually won the election by a landslide, and that there is massive fraud and that you know, have election integrity, which really means taking millions, denying millions of people, often people of color, lower-income people, young people,

but taking away their right to vote. That is what's going on right now. And if these guys win, that will only be cemented and broadened. So we are fighting right now, not just for strong social policy, working families, maybe even more basic. We are fighting to make sure that this country remains a democracy. Yeah. I mean, you're right. And this is like a very emotional issue. I've definitely lost my cool when talking about the filibuster or the For the People Act or Joe Manchin's vote. I've seen members of Congress accuse him of supporting white supremacy. Do you have advice for people on what the best way is to communicate with Joe Manchin or others who might be a sticking point here based on your experience? I mean, people can do what they want here.

I mean, you know, what I can simply tell you from my vantage point here is enormous pressure in every way has been put on Manchin. The real answer, longer term, is not to have only 50 Democrats in the Senate. You know, and then we're not dependent on, you know, right now, anybody. Not just Manchin. You go forward and say, I'm not supporting this bill. Forget it. That's it.

It's all over. I'm not supporting this bill. Forget it. That's it. It's all over. So what we need to do is to, you know, there was this ProPublica story that you also mentioned about how the richest people in the country pay basically nothing in taxes, right? And they avoid these taxes legally. They just get all their compensation via stock, right? So you've been talking about this literally your whole career. Do you have a proposal for how to amend the tax code to actually get at this wealth and not just income? We have a number of proposals. Yes, we do. I mean, including a wealth tax,

which basically says that we're going to tax the incredible wealth that a handful of people in this country have. But we have to raise the corporate tax rate. We have to do away with Trump's tax bill that he passed a few years ago. There's an area that Biden has talked about. A study that came out recently, and the guy who was head of the IRS was a Trump appointee of all things. This guy says right now that there is hundreds of billions of dollars in lost tax revenue that wealthy people

and large corporations are not paying. Because they have, in many cases, an army of accountants and lawyers who can help them prevent them from paying their taxes. And they outgun the IRS. They outgun the IRS. They outgun the IRS. So by investing in the IRS, getting more people who know what they're doing to take on these corporations, the estimate is, I think for every dollar you invest, you gain $7 in lost revenue from the very wealthy. And that's what we should be doing.

Yeah. Last question for you. I mean, I imagine a lot of people are listening to this. They feel the urgency of all these big issues. How should we focus our attention? What do you think people should be doing right now to help you pass the agenda you talked about in this interview? not enough discussion about the pain that working class families, Black, white, Latino, are experiencing right now. We don't talk about it. Half of our people in America are working paycheck to paycheck. How's that? That means at the end of a week of hard work, you have nothing in the bank. You're living paycheck to paycheck. A paycheck stops coming, you're in serious trouble, and your family may lose their housing. We got millions of people working for starvation wages. We got 90 million people who are uninsured or underinsured. We have kids, as you know, young people with outrageous levels of student debt.

We have a childcare system, which is beyond embarrassing, and we can create millions of jobs by addressing climate change and rebuilding our crumbling infrastructure. So I think the message has got to be that in this pivotal moment in American history, we've got to reaffirm people's belief that their government can work for them. And the way you do that is by delivering the goods, by delivering the goods, by people seeing with their own eyes that real change is taking place in their lives. I use the trial tax credit is one of many examples. You raise the minimum wage of at least 15 bucks an hour and make it easier for workers to join unions.

People see that as real change. Can you know what it means right now in my state, which is probably about average, a family is spending $15,000 a year for childcare. $15,000 a year. Maybe you're a single mom, make it $45,000. One third of your income goes to childcare. Insane.

Deal with that. People pay no more than 7% of their income or less for child care. All of those things is what we've got to focus on. So to my point, to answer your question, Tommy, and I think we've got to talk about it more, is we need a government that works for ordinary people and not just the very rich.

And when you say that, that covers everything from child care to expanding Medicare. So elderly people kind of have dentures in their mouth when they chew their food. That's what it means, creating a government that works for all of us, not just the few. Well, thank you for that advice. Thanks for fighting for this agenda, Senator Sanders, and for doing the show. Thank you very much. Thanks to Bernie Sanders for being here today. Thanks to Professor Melissa Murray for joining us as well.

And everyone have a great week. Pod Save America is a Crooked Media production. The executive producer is Michael Martinez. Our senior producer is Flavia Casas. Our associate producers are Jazzy Marine and Olivia Martinez. It's mixed and edited by Andrew Chadwick. Kyle Seglin is our sound engineer. Thank you.