Strict Scrutiny - Pit of Piranhas

Episode Date: April 30, 2020

In this episode, Melissa talks shop with Jess Bravin, who covers the Court for the ​Wall Street Journal.​ 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. Welcome back to Strict Scrutiny, a podcast so fierce it's fatal in fact. I'm Melissa Murray, and as you know, the court's work has slowed down a bit due to the coronavirus, but we are not resting on our laurels.

We're continuing to keep a close eye on all of the court's comings and goings, and more importantly, we thought that this little lull in the action was the perfect time to bring you a very special episode with a very special guest. So we are joined today by Jess Braven, who is the Supreme Court correspondent for the Wall Street Journal. He's a graduate of Harvard College and Berkeley Law. Go Bears. He is also the author of The Terror Courts, an award-winning account of military trials at Guantanamo Bay, as well as Squeaky, The Life and Times of Lynette Alice Frome. So we are very excited to have him here today. Welcome, Jess Braven.

Great to be here, Melissa. So first of all, I'm going to fangirl a bit. You have probably the coolest job in the law of anybody. You get to report on the court, you do all of this great writing, and you have this action-packed kind of beat, right? So how did you get into this? How did you escape the drudgery that ordinarily attends post-law school life? Well, it's because of what I had going on in my pre-law school life. In between college and law school, I had an array of odd jobs. One of them was newspaper reporter. And when I went to law school, I, you know, had the, I would say I had the expectation of becoming a practicing lawyer when I got out. But I recognize that almost everyone does, since that's exactly what law schools are designed to make you become.

But through circumstance, I didn't really have a chance to do the kind of professional preparatory things you do to get a job in the law. After my first year, I was late in turning in a book manuscript, the aforementioned Squeaky, so I had to spend my summer finishing up the manuscript instead of working at a law firm or something. For my second summer, I had been appointed to the student seat on the UC Board of Regents. And that was a very time-consuming endeavor, very worthwhile. But so I didn't really have a chance to do the kinds of things that prepare you for a real legal career. In fact, after my first year, you know, I don't know if they still do this at

Berkeley, but the class votes various superlatives for members of the class, you know, cutest couple, that kind of thing. And I got voted most likely to succeed in a field other than law. So trying to stay true to that confidence of my classmates when I was in my last semester in law school. I had been talking with a reporter who had covered some issues at the Board of Regents. And he even said to me, said, you know, you kind of look at issues a lot more like a reporter than a politician. You know, you should maybe talk to my editor since we have some openings. So I did. And they offered me a job covering legal affairs in California at the time. And it sounded pretty good to me. It also meant I could put off taking the bar exam.

So it was kind of a win-win. And I took the job. And kind of astoundingly, I'm still at The Wall Street Journal. That's amazing. So let me get this straight. Your version of slacking your one-off summer of law school was to write a biography of Lynette Squeaky Frome. Well, it was slacking in that it should have been done before. You know, I deferred after I got in. I got a book deal about a week before class was supposed to start at Berkeley. And so I so I deferred, but I didn't finish the book in time. So I still had it hanging over me while I was in law school. And I had to finish it the following summer because, you know, first year is kind of busy for some people.

It's a little busy. I agree. So I actually have some questions about your books. I've read The Terror Accords. It's a terrific account of the Guantanamo Bay military trials, all of the controversy associated with military tribunals. Lynette Squeaky Frome came out of nowhere for me. So how did you get interested in Lynette Squeaky Frome? And for listeners who aren't familiar, Lynette Squeaky Frome was a member of the Manson family. She was sort of the first lady of the Manson family, if you will. And she was convicted of the 1975 assassination attempt of Gerald Ford, then president of the United States.

And she served time in a federal prison until I think 2009 when she was paroled. So how did you get into this? Well, it was, again, a kind of difficult to repeat sequence of events, much like the current career path that I had had between college and law school was managing a re-election campaign for a friend of mine who was on the Los Angeles Board of Education. And it was a very eye-opening introduction to the way that politics and democracy works on the front line at the basic level in the United States. And it was, I have to say, very dispiriting in a number of ways, notwithstanding the fact that we lost by a few hundred votes. And so I actually wrote a book proposal to talk about that, to write about that experience and the, you know, the lessons I learned. I thought it would make a very good narrative. I thought there were, you know, there was conflict, there was suspense, there was all kinds of stuff.

And I found that publishers in New York had a different view. In fact, they told me, you know, we think you're a good writer, but this topic, I mean, it's got three strikes against it. And they were basically, number one, it's about public education. Nobody cares about public education. Two, it's about local politics. Nobody cares about local politics. And three, it's about Los Angeles. Nobody cares about local politics. And three, it's about Los Angeles. Nobody cares about Los Angeles. So given those, some editors said, what else you got? And one editor, in fact, called me up in as close as I could get to experiencing a scene

in The Graduate. This is not the other scenes, the plastic scene. The guy says, you know, I've got one word for you, squeaky. And I said, what? You're joking. He said, no, no, no. I think there's something there. And this editor, Jim Fitzgerald, a great kind of gonzo editor, he didn't really know anything about her. She was just somebody who lodged in his head when she was in the news. And he thought, there's something there, you know, there's got to be something there. And he just thought, I mean, for all I know, he had made the same pitch to the last 300 people he had met. I don't know. But I was interested in continuing to write. And

I thought, well, you know, he's an editor. He knows what he's doing. Maybe there's a story there. So I spent a month down at the Central Library in downtown Los Angeles looking through, you know, periodicals and books that were printed in the late 60s and early 70s. They have a lot of them there, a lot on microfilm. And I came to the reluctant conclusion that it actually was a pretty good story. So I wrote a proposal and it got snapped up by publishers. And that is how it happened. And I threw myself into writing that story. So I can't say it was an idea that I had had myself. It was the editor's idea. But he didn't really know much about her other than that sort of flash of inspiration. And I think there was a prison break

that she was successful. She left prison and was then recaptured and then put back in prison, but she was a fascinating character. And I mean, truly the first lady of the Manson family. I think she's portrayed by Dakota Fanning in the Quarantino Once Upon a Time in Hollywood. So strict scrutiny listeners, if you want another pandemic film, that's another good one.

And Lynette's good as well. But let me tie this together, though, to the law school experience. Because a fair portion of the book takes place in Northern California. She was living in Sacramento. And the judge who presided over her trial, Tom McBride, a Kennedy appointee to the bench, he was a Berkeley Law graduate. And he was very, very helpful to me in making available all kinds of records that had been sort of inaccessible. And there is a fair amount of law in this book because there are trials, criminal trials, all the way through it. There are some civil actions. There are some First Amendment activity

when the judge issues a suppression order to prevent screening of a movie about Manson during a jury selection for her trial. So there's actually a fair amount of law in this book, which may not be that appealing to some readers. But there's also psychedelia and some wild sex scenes and things too. But for me, the real appeal is that black letter law that comes through and through the book. Well, that is a ringing endorsement. So put that on your pandemic reading lists as well. Squeaky, the story of Lynette Squeaky from by Jess Braven. But let's get into the court and specifically the Corona court. So everything has changed now that the court, along with the rest of us, are dealing with pandemic conditions.

So on April 13th, the court announced that for the first time in history, it would hear telephonic oral arguments and would allow media outlets to live stream the proceedings. And first of all, I think you should be taking credit for this monumental shift because the day before the court made this announcement, you wrote a story suggesting that the court might have to defer or delay a lot of its work at a time when lower courts and state courts were actually adapting to the pandemic in interesting and new ways. Yes, that's really the power of the press. You know, we put something out there and they just snap to attention. That's been my experience throughout. When you write, they listen. I like it. Well, it was actually, I'm very, very grateful that

the editors didn't hold that story one more day, in which case it would have been totally stale and have had no value or whatever. But yes, we drew attention to the situation where many, many other courts up and down the line from state Supreme Courts to trial courts, federal circuit courts, a lot of them were trying very hard to keep things moving despite this very, very difficult situation. And the Supreme Court didn't really seem to be that energized about it. And we thought that was quite a contrast. I mean, you have, you know, most of the legal work in this country does not happen at the Supreme Court, of course, but it does send a message. And for them to be so far out of sync with the rest of the judiciary

and the rest of the legal profession was puzzling and perhaps it got to them as well. So they took a very, very, very aggressive leap into the 19th century by adopting the use of telephones. You know, they may have, I'm sure many of them had read about or heard about this invention and now they have the opportunity to actually see it for themselves and take out some wax cylinders see what kind of sounds they can create over this device I'm just having this image of all of them huddled around a rotary dial listening to the advocates hearing all of this

so they have taken a monumental leap into the 19th century with these telephonic arguments. We make light of it, but this is huge. I mean, this is unprecedented in the court's history. Typically, other than attending live oral arguments, there really is no way to sort of get a live account of what is happening in the courtroom. And for the rest of us who are not members of the Supreme Court bar or who don't wait in line to get into oral arguments, you have to wait until days later when they finally release the audio of the recording and they finally release the transcript. So this is actually a very democratizing step for the court.

Well, probably the most consequential aspect of it is not that they are conducting a proceeding by telephone, because they have done that before with their private conferences. I mean, they phoned in. That's what, in fact, what they have been doing. Right. And that is what they presumably have done over, you know, when they're on recess or vacation, when they have some emergency matter they all need to discuss. What makes it really significant is not so much that they are doing something by teleconference, but that they are permitting the public indirectly to listen as it transpires. They're going to put out a live feed to the news media, but there are no restrictions on what we can do with it. So we know C-SPAN intends to broadcast everything that they do. Our website,

WSJ.com, is going to stream at least the arguments we think are the most significant, so our readers can listen as well. And I'm sure other news organizations will, too. I mean, the court said that they were not putting up a live stream on their own website because they were afraid it would crash because, you know, they might have, you know, there might be tens of people who, you know, log on to hear that from their website. And I don't know they have the capacity to handle that. But so we will probably have many of those arguments. And, of course, all of them will be on C-SPAN.

To be fair to them, shortly after I started covering the court, Chief Justice Roberts, who periodically has met with the news media to discuss coverage issues, he did agree to post same-day transcripts on the website. And they usually, at request, will provide a rough copy to the news media ahead of time to help us with reporting. They also agreed to identify the justices by name in the transcript until about 2006. It just said, the court, and you didn't know who was speaking unless you were there watching. They have released same-day audio for a number of major cases over the years,

Bush v. Gore and onwards, the same-sex marriage cases. And they have been releasing audio of all the arguments on Fridays following the hearing itself. So they've made a few nods to expanding access, but this really is something that's new, the idea that anyone anywhere could listen as the argument is happening as opposed to being in the courtroom. The court has famously resisted televising their proceedings. And when I was a law student and was at a field trip, I guess, to the court, I remember asking Justice Ginsburg why they were so reluctant to adopt televised live streams, given that so many lower courts had already done it. The Ninth Circuit does this. The California Supreme Court

does this. And she said that part of their reticence about this was that there were a number of justices, and of course, this is in like 2001, there were a number of justices who really prioritized their anonymity. Like they didn't like being publicly known. And this is something that would make them public faces. And I thought that was interesting. I mean, Justice Souter was on the court. He was famously private. At a time when we have so many celebrity justices, Justice Ginsburg is the subject of a meme, has tote bags and t-shirts and whatnot. Why are they reluctant to introduce us to a sort of visual presentation of the court? I once asked the Chief Justice that, and he said, it's to protect your job.

We've heard a number of explanations that they've proffered over the years. That's one, I suppose, is their relative anonymity. Another, though, has been that they are, and this is maybe the principal concern they've had, has been their fear that putting a camera in there would change the dynamic of the argument, even subconsciously, that counsel, that the justices would be on some level aware that their audience was no longer just the bench, but really the whole world. And so many of these cases have a kind of political and social resonance beyond the technical legal matter that may be there. They didn't want to introduce an unknown element into a formula that they feel comfortable with and they think works. And we've also heard that they also

didn't like the idea of having, you know, sound bites from the argument yanked out and manipulated and used out of context that people wouldn't really understand. It's a little patronizing, but their view that people would not really grasp what they're getting at and that it might be misleading to allow that kind of usage. I think there was an incident that definitely set back the cause of allowing live transmission or cameras in that. And that was during the Affordable Care Act arguments when the Solicitor General, Donald Verrilli, had a frog in his throat when he stood up to argue. And I remember I was in the courtroom at the time, and it was actually a mortifying moment. It felt like watching somebody fall off a tightrope into a pit of piranhas or something. It was very, very tense.

And it took him, it seemed like, you know, hours to restore his voice. And later that same day, the Republican, I don't know if it was the Republican National Committee, but a Republican Party organization took that audio, manipulated it, and made a political attack ad against Obamacare, saying, you know, even Obama's lawyer can't defend his program. And that greatly upset members of the court. Justice Alito told me that he was greatly offended that, you know, that that really was humiliated in this way. And of course, Justice Alito didn't agree with his arguments. I mean, he voted, you know, to strike

down the Affordable Care Act. But he told me in an interview that he found this appalling. And this, so the idea that something happens in an oral argument and can be exploited for political reasons, I think, also distresses them. That seems right. That's a terrific story. Obviously not terrific when it happened. But I mean, again, sort of shows the close relationship between the justices and the so-called 10th justice, who's a repeat player before them. And even if they don't necessarily agree, there is this kind of protectiveness and sort of this close relationship that they have with the advocates who appear before them. Right. I think it would have been true with any lawyer, really. I mean, I think, yeah, they don't like the idea of being used for some other purpose than their own. How will telephonic arguments change the dynamics?

So I can totally see how a video recording perhaps might encourage some people to showboat or, you know, play up for certain things before the cameras. But it seems like a telephonic argument might be difficult for advocates because so much of the art of advocacy is being able to see the person to whom you're arguing and being able to read facial cues, whether your argument is hitting in the right way. And on a telephone, you're just sort of operating in a blind. How will this change the nature of the arguments? And these are some really big cases. The financial disclosure cases are going to be conducted via telephone.

How will that change things? Well, as experts like to say, time will tell. We don't know yet because we haven't seen them try to do it and what kind of technical issues may arise, how the justices will signal to the chief justice that they have a question to ask and so on. We don't really know. I spoke to some advocates about how this process might affect the way they approach the presentation of cases. And these concerns arose. How will you know when your time is going to be up? They come to depend on these lights that go off on the lectern. But there was a range of opinions. I spoke to Larry Lessig, who is a Harvard law professor who is to argue some cases involving faithless electors in May.

And he made this same point you did, that seeing what the justices are doing, their body language, are they leaning forward about to ask a question? Are they shaking their head? Do they really get what you're trying to get across or not? And that affects the way that an advocate might adjust his or her presentation. So there's that. On the other hand, I spoke to Carter Phillips, who's argued 88 cases at the Supreme Court. And he told me that it'll be a relief not to have eye contact nonstop with the justices. And he can look down at his notes once in a while, which he can't do when he's standing up there and needs to, you know, maintain full strict attention at the justices.

You'd probably also be able to just like have all of your stuff laid out. And I mean, the lectern at the court is like an ordinary podium. You can't really kind of spread out all of your things. There's only really room for a legal pad. It'll be interesting to see how this goes. We're obviously going to cover it for strict scrutiny. Do you think the situation will be like this going forward? Certainly during a pandemic, we will likely have telephonic arguments going forward. But if we ever get out of coronavirus conditions, will the court be able to go back to ordinary operations or will the American public become accustomed to this kind of transparency and

expect it going forward? Well, the Supreme Court is not a representative institution and its members are by design not accountable to the public in the same way that elected officials are. They don't have to justify what they do. They're aware of public commentary, but it hasn't really moved them much so far. I think that the answer will depend on what exactly happens. Are there some horrible outcomes from this audio? Do they get spliced and pulled into political attack advertisements? Do they get used in a way that the court feels diminishes the quality of arguments? If they have a bunch of technical glitches, are they going to be ridiculed because of it?

If more likely it just sort of happens and life goes on, they may be more comfortable leaving a live audio stream if they ever get back into their building. So among the justices who have really begun to lean into the pandemic and these coronavirus conditions is Justice Breyer, who you did a really terrific profile of in the Wall Street Journal a couple of weeks ago. He is doing the most under quarantine. So he is sheltering in place in Cambridge, Massachusetts with his wife, Joanna, and their daughter and her children. And he is still actively working. So he is making pot roasts, you reported. He is watching French movies. He is practicing. And he's also going on Zoom and meeting students. He did a Zoom conference with the students of the United Nations International School in New York City the other day. Is this typical of the justices? Are the other justices leaning into quarantine in quite the way Justice Breyer has? Well, Justice Breyer has,

his style for many, many years has been to feel he has a kind of public education role in the court. I mean, he has done all kinds of things over the years. He's done broadcasts in French for the Voice of America African service to Francophone countries in Africa to discuss rule of law issues. You know, he's done this kind of thing anyway, and he hasn't let the quarantine, you know, interfere with his style. I don't know what the other justices have been doing when it comes to their public appearances, but no one is really quite like Justice Breyer. In fact, I have to say the pot roast recipe has been kind of a sensation of itself. I've gotten more reader queries about that recipe where people are asking about, they want to know more specifically about how many spices they need to add, what sort of wine goes with it. There's been a lot of

continuing interest in this. And the great Supreme Court reporter, Tony Morrow, actually prepared the recipe at home to give it a test. And he's a great Italian cook himself. And he gave it very high marks. So we have to give Justice Breyer some credit in the kitchen. So among the many things that have happened since the quarantine has gone into effect, not only have I become an elementary school teacher and a very poor one at that, I've also become a very poor home cook. But I am going to try Justice Breyer's pot roast recipe at some point. So I will let you know how it works. I also wanted to ask you about Justice Breyer's Zoom background.

So when he appeared in the Eunice Zoom conference, he had this background that was of the Supreme Court, but it was sort of like a hallucinogenic Supreme Court because the sky was this really vibrant electric bilou, the clouds were sort of trippy and weird. What was that about? This was not an ordinary picture of the court. And it was really weird to have his face coming out of it, too. So who's advising him about Zoom backgrounds? Where is he getting this from? You know, again, I wish I could answer that question. I mean, this is just a historical fact. Justice Breyer, when he clerked at the Supreme Court for Justice Goldberg, LSD was lawful.

I'm just observing as a factual notation that it was not until 1965 that it became a controlled substance. So if that's what the Supreme Court looks like to him, there may be some historical reasons. So this is the Timothy Leary of Zoom backgrounds. Okay. We're just speculating. That's all we're doing. We're just speculating. Okay. So Justice Breyer is doing a lot. Justice Ginsburg is working out. We don't really know what the other justices are doing, but ostensibly, we will hear them when they appear in these telephonic conferences, and we'll get a sense of what's going on. How have you been keeping busy in all of this? You don't have access to the physical building of the court anymore, but your work still goes on, and you're still

reporting on the court. How are you doing this? Well, you know, like everyone else, my work has shifted somewhat. When the court stopped hearing arguments, that's one thing I didn't have to do at the end of March and early April. But they did continue to issue opinions and emergency orders. So there's following that activity as well. Then there are other things that I've moved into doing that are related to our coronavirus predicament, you know, writing about, you know, quarantine laws. And, you know, I was curious, for example, well, what's going to happen with all our, you know, executions, you know, those are those are kind of hard to have a lot of social distancing during those. And so I did a story and found out that a lot of states were suspending executions because of public health concerns.

So there are other kinds of stories that fall more broadly within the legal response to this event. And so it's that kind of thing I've been doing in addition to keeping tabs on the Supreme Court. Your coverage of the pandemic and legal issues arising out of the pandemic have been really terrific. And you've done a great job talking about all of the abortion restrictions that have gone into place in various parts of the country as a response to coronavirus. You've talked about the effort to release prisoners from prisons or clemency efforts. So there's lots of great content. How do you think the coronavirus will factor

into their decision-making about some of these questions? Well, we already have one case that did that. That was the Wisconsin election case earlier in April. And there we saw that in coronavirus, as in many other things, there's an ideological five-4 split on the court about certain things. I mean, I think of it sort of, you know, after 9-11, the courts kind of got out of the way and they let executive authorities deal with public safety issues

as they wished. But at a certain point, they began to get more involved. And I think this is a similar thing. There's going to be very great reluctance by courts, even the Supreme Court, to second guess public health authorities who are saying this must be done to protect public health, unless there is a very, in their view, clear legal issue, as there was in the Wisconsin case. So I think that by the time these things get to the Supreme Court, many of them will resolve themselves. So the pandemic presents a really interesting question for the court, which was already in a kind of political thicket.

This term was really a barn burner of a turn. Lots of issues that they tried to defer from the prior term, but now they actually have to face. And it's all happening against the backdrop of a national election. And now you layer on top of that this pandemic. And this is a court with a leader, Chief Justice Roberts, who understands himself to be very much the steward of the court's legitimacy, institutional profile. How do they manage to sort of stay out of the political fray when you have this election going on, where you have this pandemic going on, where the political branches are at each other's throats? You have cases like the Wisconsin case where even where they try to sort of say this is a very narrow decision,

it's a very modest decision, they just get brickbats at whatever they do. And everyone understands it in a very partisan way. Are they going to be able to stay out of the partisan fray? Or will the court be hobbled at the end of this? Well, you know, for a while it looked like they, you know, maybe for them, the pandemic was a blessing in disguise if they could actually put off some of these cases till after the election. Now, it's clear that they felt they could not do that. It would not be responsible to do that. And they would have to make some kind of accommodation. Part of it just goes with the job. These are very serious issues and people have very deep divisions about. But ultimately, it comes down to what they do. I mean, they can choose to speak with one voice if they wish,

if they think that projecting unity is more important than scoring certain kinds of wins. A lot of it is really up to them. If we see a continuing, you know, set of five forward decisions that are very easily caricatured as simply an ideological shopping list, then I think voters and analysts and lawyers will understand one thing. Here, if there is an effort by this court to put aside some of those goals, maybe we will see something different. But that's wholly up to them. So, again, this is a really interesting moment that the court finds itself in.

But there have actually been a lot of really interesting moments for the court over the course of the period in which you've covered it. So you got on the speed in 2005, which was when John Roberts became Chief Justice, John Roberts, and when Justice Samuel Alito joined the court replacing Sandra Day O'Connor. How has the Roberts court changed over the course of the 15 years that you've been covering it? Well, it's gotten more conservative. I mean, at first, you know, when, you know, Justice Alito was a very significant shift from Justice O'Connor. In fact, even on some of the, I mean, she had voted against his position as a lower court judge on some cases. And so that was a very significant shift right there. And then the next major change in the court's ideological direction came last year when Justice Kavanaugh succeeded

Justice Kennedy. That, in terms of like the big picture ideology, in terms of personalities, the biggest, I guess, personality changes were Justice Gorsuch and Justice Sotomayor. Justice Sotomayor, by any standard, a much different style than her predecessor, Justice Souter, in terms of how she approaches oral argument. I think we can all agree on that. And Justice Gorsuch is filling the seat once held by Justice Scalia. Both of them are somewhat pugnacious. Yeah, it is a court that, you know, everyone there is very smart. They're all certainly qualified to do their jobs. They all have very, you know, for the most part, deeply formed opinions. If you look really at the top line answer, it's a court that has shifted more and more to the right over that period.

As it shifted to the right, on the other side of the court, have any justices sort of emerged to kind of become lions of the left in your view? I mean, Justice Ginsburg has, I think, long been a stalwart of the left side of the court. But is there anyone else sort of emerging to kind of match her and perhaps even supplant her as she likely thinks about retirement, if she thinks about retirement? In terms of who on the liberal side of the court is going to pick up the torch, well, one, the question is, what can they do if they are in the minority on every significant case? Does it really matter that much if they're simply writing

for an audience that's going to read these dissents in 40 years or something and then maybe decide, oh, we should go back to that view? A lot of, when you when you look at who's there, well, Justice Breyer is he's 81. He joined the court a year after Justice Ginsburg. If Justice Ginsburg does retire, I'm sure that he will not want to retire immediately because at for at last, you know, out of her shadow that he won't, you know, it's a seniority driven organization. So he's always junior to her when it comes to assigning opinions, so he's always junior to her when it comes to assigning opinions, if he's in the majority and the chief is not. So, you know, I could see him wanting to at least have an opportunity to exercise that prerogative

for a little while, as long as he feels, you know, up to it and the conditions are right. After that, you have two other justices, Justice Sotomayor and Justice Kagan, who also joined one after another, Justice Kagan behind Justice Sotomayor in seniority. But they have staked out kind of different profiles. Justice Sotomayor is someone who has decided to make points, even if no one else agrees with her, to have solo dissents or concurrences from time to time and to speak much more directly and much more aggressively about some issues. Justice Kagan is not seeking the same kind of role. She's more of an inside player we've seen. We've seen, you know, she doesn't have the same kind of experience or background as Justice Sotomayor. Maybe she doesn't feel comfortable standing out and making the types of very aggressive points that Justice Sotomayor has done.

On the other hand, it also may be a question of, you know, the kind of job she's had. She was a dean of Harvard Law School. She was a good manager. She's someone who deals well inside an institutional setting. She's a good, I would suspect she's very good at office politics. So I think, though, you people have seen in Justice Kagan's approach some echoes of Justice William Brennan's ability to kind of draw out some common ground and to mitigate moves away from her point of view, and to the same extent, trim her own ambitions in order to keep some of the doctrine that she thinks is correct. So I think you have really kind of, you know, the outsider and insider kind of approaches among those two justices, even if, if you look statistically, they will line up together much more frequently than either one would with someone on the conservative wing of the court.

Nevertheless, there are significant differences in nuance and approach. And in a way, they're almost playing to different audiences. When Justice Sotomayor speaks in the courtroom, and we'll have to see if that translates to the telephone, much of what she says doesn't really seem to be aimed at persuading or answering the questions that her colleagues on the court have been asking. Justice Kagan seems to be less concerned about what the audience is listening to the public at large and more concerned about, you know, what from one to three other people sitting next to her on the bench might be thinking. Justice Sotomayor has said that sometimes she

takes stands because those are issues that are incredibly important to her. And, you know, whenever she says these things, I'm reminded of Lonnie Guinier's article with Gerald Torres about demos prudence, this idea that there are certain kinds of opinions or judicial pronouncements that aren't actually intended for the institution, but rather for the public beyond the institution. And so, you know, I take, for example, her dissent in the Schuette case about, you know, the best way to deal with race is to talk about race openly and honestly as a kind of demos prudence. And her opinion in Schrieff, for example, that Fourth Amendment case,

I also sort of take in that vein. So I like the outsider-insider characterization. They're both playing, I think, important institutional roles, albeit in really different ways. All right, last question. And this is a fun question. So have you heard about this game Quarantine House? No, tell me. All right. So it's all over Twitter, but basically there are these quarantine houses like House 1, 2, three, and four, and they're all populated by different people. And, you know, they could be like, you know, on the one hand, I don't know, Jennifer Lopez and Cardi B and, you know, Ina Garten and someone else. And you have to pick which house you want to be in. So it sort of requires you to kind of think about what the relative strengths of each of these people, what the strengths are, and what you require in a pandemic situation. So if you were to create your own quarantine house, who would be in it in the legal

demimonde that you occupy? So which justices, which advocates, which other correspondents would you include in your quarantine house? You have five people you can add. Five people. Well, certainly Tony Morrow because of his own great, great cooking skills. I knew you were going to say Tony Morrow. There's yeah, there's no no question I would I would pick him. You know, I think that that I would pick Justice Thomas because of his RV. You know, he can go anywhere. He has his house on wheels. Justice Thomas has been pandemic ready for a very long time. Exactly, exactly.

So that means that you're not, you know, stuck in any one place. You can go anywhere. And, you know, and if the pandemic devolves into like some kind of zombie apocalypse, you have a way to get away. So I think that's pretty important. Who else should we? You have three more spots. I have three more spots.

Well, you know, Justice Ginsburg has very good taste in wine. So that might be someone to add there. And plus she doesn't eat very much. So that would leave more for the rest of us to survive off of. And I've got two more or one more? You have two more. Justice Ginsburg, that was clutch.

She doesn't eat a lot. That was important. I have to say, you know, Justice Breyer's devotion to cooking and also entertainment, I think, as I learned in that interview, is worth bringing along with us. But it would all be French movies. It would be old French movies. That's right. That's right. And who else to add? Last spot. This is the most important spot. this sort of misfortune, who can always, you know, always put things in the best possible, most plausible, most reasonable light, I think would be a great, great value.

That is quite a quarantine house. So Tony Morrow for his cooking talents, Justice Thomas for his RV, Justice Ginsburg for her wine collection and the fact that she is parsimonious in her eating habits. Justice Breyer because of the movies, the pot roast, and possibly the opportunity to learn another language. And then Paul Clement for just having a good positive attitude in all of this. With a house like that, you guys are going to be in that RV till the end of time. Like, why ever leave? That's a great quarantine house. All right, Jess Braven, we know you have to get back to it. You have lots of work to do. The court is getting back on the stick, back in session. So you're going to be covering it and we will be so excited to read it. Thank you so much for your coverage of all of this. provocative analysis of things that go on at the court. We enjoyed, and thanks for doing this podcast

and these other activities that help bring some light into this obscure area of our national character. Well, we love doing it, and we love being able to talk with people like you who make this your life's work and break it down in such an accessible way for the entire public. So we are only hitting a

sliver of what you do on a regular basis. And we're just so glad to have you here to talk about it. That's all the time we have for this week. We are so grateful to Jess Braven for taking the time to come by today. You can read all of his court coverage in the Wall Street Journal and you can follow him on Twitter at Jess Braven. As always always at Strict Scrutiny, we are so grateful to Melody Rowell for producing us. She is the one who is going to take out my interrupting children from this podcast. And for Eddie Cooper, who does our music and for our Strict Scrutiny intern, this is a new announcement, NYU2L's Sam Dunkel, who has been helping us get together some of these special coronavirus episodes. So we're grateful to him.

You can follow Strict Scrutiny and all of us on Twitter at strictscrutiny underscore is our Twitter handle. And you can check out our Strict Scrutiny glow up gear at www.strictscrutinypodcast.com. So stay safe, say well, and we will see you the next time the court is in session. Thank you.