Strict Scrutiny - Laboratories of Autocracy

Episode Date: January 3, 2022

Melissa, Kate, and Leah get to spend an entire show on one of their favorite topics -- Sam Alito. This time with an assist from Justice Alito’s nemesis, Adam Serwer. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Kate Shaw.

And I'm Leah Littman. And we are delighted to be bringing you a very special episode today with a special guest. This episode is about one of our favorite slash least favorite topics, Justice Samuel Alito's burn book. And today's very special guest is someone who has earned a full page spread in that burn book with one of his most recent articles. And that is Adam Serwer, a staff writer at The Atlantic, and the author of the phenomenal book, The Cruelty is the Point, earlier an essay by the same title and really kind of a defining phrase of the Trump era. So welcome to the podcast, Adam. It is great

to have you. Thank you so much podcast, Adam. It is great to have you. Thank you so much for having me. Adam, you've written so many different must-read and pointed columns, but the one that ended up drawing the attention of Justice Alito was about the Supreme Court's order back in September that allowed Texas's SB-8, the law that prohibits abortions more than six weeks after a person's last period, to go into effect. Before we get into Justice Alito himself, can you walk us through the gist of that column? Sure. I mean, it just was obviously the Texas legislation. I should mention that I live here in Texas. I live in San Antonio. We hear it's an abstract entity, or at least that's what Justice Alito called it at oral

argument. So it's just a little odd to hear that someone lives there, but please. Yeah. I mean, I would not recommend walking around telling Texans that it is an abstract entity. They take that pretty seriously. Don't mess with Texans. Yeah, I mean, it doesn't the legislation was obviously designed to avoid court review. And even even as, you know, people started suing under the law, anti-abortion advocates were saying, oh, you shouldn't take these cases. in this sort of limbo so that abortion would remain banned in the state without being struck down because even though the law is blatantly unconstitutional under Roe, the fact that it could not be reviewed would mean that it could stay on the books indefinitely. And the Supreme

Court sort of said, oh no, anti-abortion advocates made a rock so heavy we can't lift it and allowed the ban to continue to be enforced in Texas, essentially nullifying Roe in the state. Now, I chose my words very carefully when I wrote nullify. I didn't say overturn because the point is that Roe legalized abortion in all 50 states. And with this legal scheme, anti-abortion advocates had figured out a way to ban abortion after six weeks in Texas, which is, you know, before most women know they're pregnant. And so they had essentially nullified Roe. It was still on the books. It was still technically the law. But, you know, women in Texas don't have the rights that they should have under Roe. And I think that that was not only obvious, it was also the aim of the people who

designed the law. So, you know, in a way, there's a kind of double deception here, where it's not just that they're trying to do something blatantly unconstitutional, or that they are consciously doing that when they walk into court and sort of pretend, well, that's, you know, that's not really what we're doing. Or if you allow the law to stay in place, you're technically not doing that because you're not ruling because the law is, you know, in this liminal space where it is not subject to judicial review. And that was such a consciously bad faith effort to, you know, avoid the unconstitutionality of the law that, you know, my piece was basically, look, the Supreme Court can basically do what it wants. And what it wants is to say, you know, we want Court can basically do what it wants. And what it wants is to say, you know, we want this ban to remain on the books. We have five votes to do that.

And there's nothing the rest of you can do to stop us. So, you know, that's what we're going to do. When you published the essay, it got a really terrific reception from readers. And many people were on Twitter recommending it, like this sort of brings together all of the things that people had been talking about. And one of those recommendations, I guess, made its way to Justice Samuel Alito, who brought up the essay and quoted from it at a speech that he gave at the Notre Dame Federalist Society on September 30th, 2021. So here's a clip of Justice Alito. Here is a line from a recent piece talking about our refusal to grant an injunction in the Texas abortion case. Quote, the conservative majority on the Supreme Court was so eager to nullify Roe v.

Wade that it didn't even wait for oral argument. End end quote. Now, put aside the false and inflammatory claim that we nullified Roe versus Wade, we did no such thing, and we said that expressly in our order. I quote, the applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. This order is not based on any conclusion about the constitutionality of Texas's law.

So the statement is flatly wrong, and the suggestion that we should have held oral argument is ridiculous. So Adam, where to start? First, what was your initial reaction about being name checked by a Supreme Court justices, particularly the conservative ones, but also Justice Breyer, have been on this sort of public campaign to reassure everyone that the Supreme Court is not political because they understand that with six conservative appointees to the court, they're going to start reshaping American law in significant ways to the right. They don't want that question. And so they're trying to reaffirm this idea that the Supreme Court is completely impartial and that they make decisions based on the law, not based on partisan interests. And of course, you know, for Alito to go to Notre Dame and give this like Trumpian broadside against the media to do this, like, you know,

Ron DeSantis impression or whatever he was trying to do, really sort of proves the point rather than refutes it. I mean, it's a ridiculous point to begin with. You consider the decades that the conservative legal movement spent working, spending billions of dollars to get to this point, electing certain people, training certain candidates to think about the law in certain ways, to then pretend, oh, we don't want any particular outcomes from this. It's just another example of the kind of bad faith that the Supreme Court and that the conservative legal movement puts forth behind a pretense of civility. And so Justice Alito wants to, you know, talk a whole lot. He talks about civility quite a bit in his rulings. He talks about, you know, taking people at their word and not assuming bad faith

and all this stuff. But then he wants to be as witheringly sarcastic and nasty and assume bad faith whenever he feels like it. He is perhaps the most hypocritical justice on the court when it comes to decorum. He insists on it from other people and he holds himself to no standard of decorum that I or anybody else can possibly discern. And his rant at Notre Dame, which was, by the way, was held behind closed doors. Reporters were allowed to take notes for the purpose of publication, but they were not allowed to publish transcripts. Nobody was allowed to publish video.

So Alito wanted to not only go on this rant and attack people, he wanted to do it in such a way to where he would not be subject to criticism. It's like one of those tweets where, you know, they turn off replies or something like that when someone has like a particularly scorching hot take. That's basically the equivalent of what Alito did with that speech. And it's just really an example of the fact that these people are so powerful and so unaccountable in any way to the people that they think that they can say and do whatever they want and get away with it. And the rest of us should really shut up and not say anything.

It's so striking to hear you describe it that way, because it's not only they are so powerful and so unaccountable that not only can people not say anything, it's that everyone has to kind of sit back and smile at them and like receive all of, restrictions of rights and invalidation of laws and all of the different things that they put in the U.S. reports with a smile and just say, yes, we love it, Sam. And that is the only... Thank you, Sam. May I have some more? Yes.

May I have some more? Like that's the only appropriate response. I mean, I know y'all, y'all obviously are very familiar with this, but if you go to the Supreme Court, the Supreme Court is the most sort of like old-timey ritualistic environment, I think, in the United States government in terms of like the respect for decorum. Like it really is sort of the last vestige of like that old-timey, you know, British royalty type stuff. And so they are used to an incredible amount of deference from the reporters who cover them, from the attorneys who argue before them, from basically everyone. Because they are, even if you look at the most

left-wing person who nevertheless argues before the Supreme Court, and there are probably some exceptions, but if you're someone who argues before the Supreme Court, your incentive is to kiss their ass as much as possible. I hope I can say that on this podcast. Oh, yeah. But you're supposed to tell them, oh, yes, you are wise. You only make decisions based on the law. You're supposed to appeal to their ego. You're supposed to talk to them a certain way.

So they are used to an absurd amount of deference that probably no other official in the U.S. government gets, like not even the president. Like you can hear, you know, people yell obscenities at the president all the time. You know, let's go, Brandon. I mean, that's fine. That's why we have a First Amendment. People should be allowed to say F you to the president. But Supreme Court justices are not used to that lack of deference. They are used to an almost royal, they are used to people treating them with an amount of respect that is almost anachronistic compared to what other public officials expect in this day and age. And because of that, they really, it's not just that they are unaccountable in like a democratic sense because they're appointed, because their

appointments last a lifetime, but also because everyone around them treats them this particular way. Yeah. Justice Alito himself feels entitled to the liberal feminist for Sam Alito column that some of his colleagues received. Yeah. Couldn't help but think, Adam, as you were describing Justice Alito as like insisting on decorum for others, but not observing it himself, of his performance at the 2010 State of the Union address, right? So this is President Obama delivering the State of the Union just like a month or something after Citizens United is handed down. And President Obama criticizes Citizens United. And he says, with all due deference to the separation of powers,

last week the court, you know, like reversed a century of law and talks about like the floodgates for special interests and foreign corporations spending money in U.S. elections. And Alito sitting there repeatedly shakes his head, mouths not true. And all that was honestly a pretty shocking break with decorum and protocol at a State of the Union address. And I mean, to your point, Adam, like if Justice Alito were on the bench asking questions and like offering pretty slanted takes on the facts of a case, and the attorney on the other side started shaking her head wildly and mouthing, not true, not true. Like I am sure Alito would have the court like security drag her out of the courtroom. And he basically did that to the face of the first black president of the United

States. So it just, I think, is such a perfect illustration of your point about the hypocrisy. Right. Look, again, you know, I don't care if Alito does that. I only care that he does that and then expects everybody else to kiss his ass. It's a free country. You can be as nasty as you want to the president of the United States. But, you know, I don't feel obligated to act as though you are someone who observes strict standards of decorum when you don't actually follow those standards, but you expect everyone else to treat you a particular way. We've basically made clear that although Justice Alito is renowned for his famously dewy and moist skin, he is also infamously thin skinned as well. You wrote a response to Justice Alito's thin skinned call out of your essay. Can you talk us through what you wrote and what your response to Justice Alito was? Yeah, I mean, look, I mean, my response was essentially that, you know, the people of Texas

do not need me to explain to them that they do not have the right to get an abortion after six weeks. You know, so Alito's presentation was as though, you know, the media is misleading people about the significance of this ruling. But he misstated what I wrote. He essentially said that the Supreme Court had not overturned Roe, which is true. They had not overturned Roe. They had simply allowed it to be nullified in this particular state. And I chose my words carefully, precisely because I did not want to imply that Roe had been overturned, not only because that wasn't technically what had happened, but also because I suspect that this law is not actually going to stay on the books forever. In fact, I think it's very likely that the Texas law will be overturned while other restrictions are maintained. And this the court and conservative defenders of the court will present this as a kind of moderation.

You know, the only kind of gutted row rather than, you know, getting a whole thing as though, you know, they're not going to slice it down further over the next few years. But it really is, you know, Alito's speech essentially was a demand that the media spin for him, that it present their rulings the way the conservative legal movement wants to interpret them rather than as what they actually are. He had some sort of snide comment about how, you know, maybe you can write whatever you want as a journalist. And it's like, well, no, actually, I have an obligation to write the truth as a journalist, not what powerful people tell me to think. And that's true, whether you're an opinion journalist like me or like someone else. In fact, you know, the New York Times, which again, the Supreme Court press

is very deferential to the court. You know, the New York Times write up of Alito's speech essentially said, you know, as I put it in the piece, although the justice described the liquid as rain, chemical analysis shows that the composition is much closer to urine. Like basically, the New York Times said Alito is lying. We can't say that because we're the New York Times and because we are covering the Supreme Court. But in fact, the reality of the law in Texas is that women cannot get abortions after six weeks. And that means most women cannot get abortions at all. In fact, they're running to other states, to neighboring states in order to take advantage of the slightly more lax restrictions among our neighbors. It is essentially a demand from an extremely powerful figure that the free press parrot whatever they are saying rather than what

the reality is. And I took offense to that as a journalist. And I think that request would not even have been made had Alito not been conscious of the fact that he doesn't. I mean, essentially, he called my criticisms and other journalists criticisms ridiculous. But those criticisms were made in the dissents to the court's decision. So essentially, he was insulting his colleagues to go back to the decorum issue. He is essentially calling his colleagues on the court ridiculous. And the reason he can do that is because there are only three votes. And so while he's sitting here sort of, again, demanding that everybody treat him with a

civility that he is not treating other people with, he's actually, you know, I'm not really the target here. The target is Breyer, Kagan, and Sotomayor. He's telling them not only are their opinions ridiculous, but that we have six votes now so we can lose Roberts and we don't care. To be sure, you are no itinerant critic of the court. You have stayed kind of on their beat. So in September 2018, you wrote a column titled The Supreme Court is Headed Back to the 19th Century. And there you observed that the justices again appear poised to pursue a purely theoretical liberty at the

expense of the lives of people of color. And then in September 2021, you took on the court again, in a piece titled The Lie About the Supreme Court, Everyone Tends to Believe. And there you argued that despite disclaiming being partisan hacks, the court's record on key issues suggests that the justices are not so impartial after all. So at a time when so many journalists and other commentators are focused on the other branches of government, why or how have you stayed trained on the court? That's obviously, you know, our interest as well, and we wish more talented people like you would do that. But I guess like if the court is as partial and regressive as, you know,

your writings and others have suggested, like what are the broader consequences and how can we get more people to focus on it? So I think it's actually something of a reflex. I covered the court for Mother Jones. I covered the court for MSNBC. And then I went to BuzzFeed for a while as an editor. So I stopped doing that. But I spent a lot of time covering the court. I covered some big cases, the Obamacare cases, the DOMA cases, the same-sex marriage cases, the Arizona Show Me Your Papers law,

the Voting Rights Act case. I went back and I looked at John Roberts' memos from when he was in the Reagan Justice Department and they essentially echo his jurisprudence today, which is that state efforts to ameliorate racism are actually worse than racial discrimination itself. And you could see that philosophical point of view everywhere from the Voting Rights Act to the travel ban to the present. I guess part of it isn't an instinct, just because it's what I did before. So I always of keep it. The court is always pretty close to what I'm thinking about. But I also think about it because I think that the court's jurisprudence has been underappreciated in terms of how it has guided Democratic backsliding in America. I think that

people want to think that, you know, some liberals want to think that this is, you know, just a Trump thing. But in fact, I think, you know, Trump is a phenomenon, is a symptom of this Democratic backsliding. And you can see, you know, elements of the GOP establishment that were committed to circumscribing Americans' democratic rights, you know, prior to Trump even really coming on the scene like that. And I think in particular in the area of voting rights, the court has so eviscerated the 15th Amendment. The old saying is that the states are laboratories of democracy,

which what you're seeing right now is that they are actually laboratories of autocracy. They are experimenting with methods to insulate Republican power from popular will. There's an article in the New York Times today about Wisconsin, which is essentially like, you know, raises the specter of even if a Democrat wins Wisconsin's electoral votes, the state legislature may simply overturn the election, regardless of what the people of Wisconsin say. And that is not simply something new. It is something that has evolved over a period of years as Republicans have utilized the kind of majoritarian levers of American democracy more and more. And the Supreme

Court is one of those, but it is also the case that as a question of legal ideology, the Supreme Court is hostile to federal efforts to ensure that Americans' democratic rights are respected. And for that reason, you know, I think the court is underappreciated among Democrats in particular as an accelerating force in that democratic decline. And I think part of that, I don't mean to insult anybody here, but I think part of that is that elite lawyers are an important constituency within the Democratic Party. And to some extent, elite lawyering relies on the prestige of the court. So again, we talked about this earlier with how even the most left-wing legal advocates who have to argue before the court speak about the court. because they need to be able to persuade justices who are ideologically hostile to them to side with them in particular cases. So I think there's a real structural impediment where the Republican Party and the conservative movement can attack the court in a scorched

earth way, regardless of how many justices and how big their majority is on it. But Democrats cannot do that because such a key constituency of the Democratic Party is, you know, Ivy League lawyers. I don't mean to insult anybody here, but I think it is just like, it is a strong structural impediment to Democrats, rank and file voters, seeing the court as the influential institution it is and responding to it with the kind of radicalism that you've seen from the conservative legal movement. Yeah, neither Leah nor I went to Ivy League law schools, I will say, but we are not at all like outside of that critique. I will say for what it is worth, I do think that in a lot of left legal circles, like that dynamic that you've just identified is to some degree shifting. But we will see like how dramatically it shifts.

I don't think among those who actually argue before the court, but sort of among the commentariat, I do think that there is something of a shift happening. Yeah, I mean, look, you know, I don't want to imply that the the party's base, that group of that group that formed the Federalist Society were sort of rebels from the Democratic Party as it currently exists does not have a healthy skepticism of the court and its role in American society. No, and just to close the circle, you know, as you were saying, the leaders of the Federalist Society and conservative legal movement are also elite lawyers, you know, coming from the Ivy League. And yet, you know, when they were kind of on the rise and viewed the court as not, you know, necessarily a safe or secure vote for their agenda, they didn't shy away from going scorched earth and campaigning against the court and being very critical in their assessments of the court. And yet, that dynamic has not

appeared to the same degree on the left, even though you would think that at least some of the structural impediments, you know, applied to both left and right there. On the one hand, I'm very frustrated with, you know, the current dynamic on the court, the fact that there is a 6-3 majority. But, you know, on the other hand, I think that is, I don't begrudge the conservative legal movement for pursuing their goals the way that they pursue them. That's part of how democracy works is people who are ideologically committed to a particular principle work as hard as they can to make their ideas a reality. And I think rather than simply being angry at that, although it's fine to be angry at that,

I really think people who are concerned about that should make an effort to imitate that example. Not in every aspect, of course, but, you know, I don't think it would be good if liberal lawyers started writing coup memos for Democratic presidents. I don't think it would be great if Justice Sotomayor started giving, you know, off the record closed door speeches, slamming the press, but I don't think she will, you know, but surely, as you're suggesting, you know, there are other things to be emulated. But in terms of a zealous advocacy in order to shape American law in ways that liberals think would be beneficial to the American people, I think that is an admirable thing that they should imitate. I want to actually ask one historical question, if I could, Adam,

which is that you are a real student of Reconstruction and Redemption, and you alluded to this a little bit previously, but, you know, you've got a lot of history of those periods woven throughout, you know, a lot of your work, including one of the pieces that Leah just mentioned. One thing we have talked about a good amount in this podcast is just how central the Supreme Court was to the project of redemption, right, to limiting, and you mentioned the 15th Amendment, right, but limiting the reach of all the Reconstruction amendments and deploying the Constitution to protect property owners and stymie social welfare laws and redistributive efforts. Anyway, so this history is, you know, I think been really central to a lot of your recent work.

And I'm wondering just if you have any thoughts on how useful that history is to understanding the present and maybe kind of near-term future of this extremely conservative Supreme Court. So you mentioned voting rights, but what about, you know, kind of other areas of law to the extent you have any sense of it from where we sit right now? I would say two things. I think, one, the court, despite certain moments like Brown v. Board or Obergefell, is generally not an ally to the powerless. It is an ally to the powerful. It is substantially shaped by public opinion. The Republicans during Reconstruction, you know, they appointed all these staunch Republicans and union veterans, and those guys promptly wrote Black people out of the 14th Amendment, which was passed to secure the rights of all Americans, regardless of race. So there's a couple lessons there. One, that the court does not, you know, the court is not a heroic institution that is going to save powerless people from powerful people. They're going to do the opposite. Number two, the court can essentially ignore the Constitution when it feels like it doesn't matter what the circumstances are, in particular when there is public pressure for them to ignore.

And three, I think it is important to look at the history of the court. There is a long history of Americans defying the court in particular ways and in particularly effective ways that I think conservatives sort of don't want you to think about now because they use those methods very effectively in order to stall or prevent social changes that the law or that Supreme Court rulings might have required. And they don't want you to look at that history because it's a history that might offer some guidance for a path forward for American liberals now that the court has a 6-3 conservative majority. But I think Americans and liberals in particular should really pay attention to that history, both to get an understanding of the nature of the court and also an understanding of how to deal with a court that has completely abandoned any obligation

to protect the rights of vulnerable Americans when they are under siege from powerful forces. Just coming back to the occasion for this podcast, Justice Alito's burn book, is there a way in which Justice Alito, and you already kind of alluded to this earlier, suggesting he was doing a Ron DeSantis impression, but is there a way in which Justice Alito, and you already kind of alluded to this earlier, suggesting he was doing a Ron DeSantis impression, but is there a way in which he is or has inherited the Trump mantle as kind of the key standard bearer of white grievance politics now that, you know, Republicans don't control, you know, either houses of Congress or the presidency? I actually think he's inherited the Scalia mantle, which is that he feels like he's entitled to embed socially conservative positions in the law, not because they have anything to do with the law,

but because he sees himself as a guardian of these put upon religious, socially conservative religious Americans who no longer have a voice and he is their champion. He is a champion of the downtrodden. And therefore, you know, whatever he says that people might take offense to or whatever he does, he is entitled to embed their values and views in the law because he is their champion. And you can see this particularly in his First Amendment cases. If he is disgusted by something, he thinks it's unconstitutional. That's just the way his jurisprudence seems to work. I mention that only because it is a reflection of this view of himself, which is that he is, like Scalia, he views himself as a champion of these deeply Christian Americans who are the

backbone, the salt of the earth, the people who made America great. This belief entitles him to write those beliefs into the law, regardless of whether or not they conflict with the Constitution's actual text, or with the legal principles of any law that they are the legal text of any law that the Supreme Court is considering. When you mentioned the downtrodden, I just was reminded of Justice Scalia had a couple of writings that seemed to paint a very particular picture of like the downtrodden as like the forgotten white man. And so I do think that, you know, because you mentioned earlier, you know, the court not being an entity that is going to actually protect the powerless. And I just didn't want this sort of, there is a way in which Justice Scalia initially, and I think Alito now, does view himself as protecting a particular constituency, but it is not genuinely powerless constituencies. I think I want to make clear that it's not that these people are not entitled to rights.

They are entitled to all the rights that everybody else is entitled to under the Constitution. What's distinct is that people like Scalia and Alito, they want to embed their sensibilities, not simply their rights and laws. So to give an example, Barack Obama a few years ago, you know, was attacked for saying justices should have empathy. But like when you read like Justice Scalia's jurisprudence on, you know, anti-sodomy laws, for example, you know, he says things like, you know, many Americans, you know, they just want to protect themselves and their families from a lifestyle they believe to be immoral and destructive. And that somehow supersedes, you know, everybody else's right to privacy. And that's what I'm talking about when I talk about Scalia and Alito imposing those sensibilities on the law rather than, you know, looking at people's actual rights. Their jurisprudence suggests to me that they believe that those sensibilities take precedence over the rights of, you know, minorities whose

behavior offends those sensibilities. And that, to me, really gets things backwards. The whole point of rights is that they cannot be overrun by the fact that someone else thinks you're using them the wrong way. We could talk about the Ricci case, too. I mean, you know, Alito feels very strongly about what he sees as reverse discrimination against white people or when white people are accused of racism, such as when the Trump administration was attempting to institute a nationwide racial gerrymander using the census. He gets very offended by that. He's not nearly as protective of the rights of people of color when they come under assault by discriminatory policies, particularly in the realm of voting. He sees himself as a protector of a particular American constituency, which belies the idea that he's simply an impartial judge calling balls and strikes, as John Roberts suggests the judges should be.

Thank you so much to Adam Serwer for joining us for this fantastic conversation. Thank you so much for having me. Thank you to Justice Alito for providing the occasion for it, I guess. Thank you to our producer, Melody Rowell, and thank you to Eddie Cooper for making our music. Thank you.