The Chris Voss Show - The Chris Voss Show Podcast – The Supermajority: How the Supreme Court Divided America by Michael Waldman

Episode Date: June 29, 2023

The Supermajority: How the Supreme Court Divided America by Michael Waldman https://amzn.to/3XyKu0C An incisive analysis of how the Supreme Court’s new conservative supermajority is overturning decades of law and leading the country in a dangerous political direction. In The Supermajority, Michael Waldman explores the tumultuous 2021­–2022 Supreme Court term. He draws deeply on history to examine other times the Court veered from the popular will, provoking controversy and backlash. And he analyzes the most important new rulings and their implications for the law and for American society. Waldman asks: What can we do when the Supreme Court challenges the country? Over three days in June 2022, the conservative supermajority overturned the constitutional right to abortion, possibly opening the door to reconsider other major privacy rights, as Justice Clarence Thomas urged. The Court sharply limited the authority of the EPA, reducing the prospects for combatting climate change. It radically loosened curbs on guns amid an epidemic of mass shootings. It fully embraced legal theories such as “originalism” that will affect thousands of cases throughout the country. These major decisions—and the next wave to come—will have enormous ramifications for every American. It was the most turbulent term in memory—with the leak of the opinion overturning Roe v. Wade, the first Black woman justice sworn in, and the justices turning on each other in public, Waldman previews the 2022–2023 term and how the brewing fights over the Supreme Court and its role that already have begun to reshape politics. The Supermajority is a revelatory examination of the Supreme Court at a time when its dysfunction—and the demand for reform—are at the center of public debate.,p> About Michael Waldman, is president and CEO of the Brennan Center for Justice at NYU School of Law. A nonpartisan law and policy institute that focuses on improving systems of democracy and justice, the Brennan Center is a leading national voice on voting rights, money in politics, criminal justice reform, and constitutional law. Waldman, a constitutional lawyer and writer who is an expert on the presidency and American democracy, has led the Center since 2005. He was a member of the Presidential Commission on the Supreme Court of the United States in 2021. Waldman was director of speechwriting for President Bill Clinton from 1995 to 1999, serving as assistant to the president. He was responsible for writing or editing nearly two thousand speeches, including four State of the Union and two inaugural addresses. He was special assistant to the president for policy coordination from 1993 to 1995.

You wanted the best. You've got the best podcast, the hottest podcast in the world. The Chris Voss Show, the preeminent podcast with guests so smart you may experience serious brain bleed. The CEOs, authors, thought leaders, visionaries, and motivators. Get ready, get ready, strap yourself in. Keep your hands, arms, and legs inside the vehicle at all times because you're about to go on a monster education roller coaster with your brain. Now, here's your host, Chris Voss. Hi, folks. It's Voss here from thechrisvossshow.com, thechrisvossshow.com.

Welcome to the big show, my family and friends. We certainly appreciate you guys coming by. Thanks for being here. I don't know why the audience, they took a while to clap there. What was that about? Have a seat, folks. Welcome to the big show, the big circus stand in the sky. We're going to be talking about some interesting stuff here that's going to blow your mind,

and you're going to learn a lot of stuff. We've had many authors on the show that have talked about the Supreme Court. We have a super ultra professional on the show who has much insight, has written a major tome on the book it just came out or on the court i should say uh just came out june 6 2023 the super majority how the supreme court divided america you might have heard the supreme court thing some people call them the scotus i don't know what that means but you can figure it out uh so we'll be talking to him about his book. In the meantime, refer to the show, your family, friends, and relatives. Go to goodreads.com, Fortress Chris Voss, youtube.com, Fortress Chris Voss,

linkedin.com, Fortress Chris Voss, and TikTok. We're trying to be cool there, but it's not working because we're old. Check that out, Chris Voss 1. Also, we'll have CNN's upcoming Jake Tapper will be on the show to talk about his novel. I think next month. Uh, the gentleman who joins us today is Michael Waldman. He is the president and CEO of the Brennan center for justice at New York university

law, NYU law, a nonpartisan law and policy Institute. Uh, he's an expert in the constitution and the courts he served as the president on or he served on president biden's commission on the supreme court he is the author of the fight to vote and the second amendment a biography he was a director of speech writing during the clinton administration and he comments widely on the in the media or on the media he can do both i suppose on the media, or on the media, he can do both, I suppose, on law and policy. Welcome to the show, Michael.

How are you? Great to be with you. Great to have you as well, sir. Give us your dot coms, wherever you want people to find you on the interwebs. Well, the best way to find me is through the website of my organization, the Brennan Center. It's BrennanCenter.org. I am also on Twitter at M.A. Waldman

and other places like that. And while I don't do TikTok, as someone put me on recently, I didn't dance and I think I did okay, but I don't know that it's my future. There you go. Well, you know, give it some time. I think we're all dancing. Is it Shakespeare that said we're all dancing monkeys?

It comes down to it or something, all the world's a stage or something. Certainly on some corners of social media, that's definitely true. There you go. So, sir, what motivates you on to write this latest book? So, you know, I work on a whole bunch of issues involving voting rights and constitutional law. I've written other books about the topics before the Supreme Court, and I became increasingly convinced that something big has happened at the Supreme Court, something with a big impact on the country. I wanted to understand what had happened

to see if it was consistent with other times in our history, what history could teach us, and what we could do about it. I am quite concerned that this court has been, in effect, captured by a faction of a faction and that it is moving very aggressively on some big rulings that push the country in a conservative political direction. And, you know, the book focuses especially on last year's term, which was the first full term of the supermajority of six justices. When they made really big rulings in the last few days of June, where they, as folks probably know, they had the Dobbs ruling, which reversed Roe v. Wade on abortion rights, the Bruin case, which was by far the most sweeping Second Amendment ruling in the country's history, and a case called West Virginia versus EPA, which really began to significantly curb the ability of regulatory agencies to act on things like the environment. You know, in the Supreme Court,

it's a pretty important institution. I think we all know that. It's pretty unusual to have nine unelected people with lifetime appointments making such big decisions. So I wanted to tell that story. There you go. Now, just for context and fairness, we reached out to Judge Alito and Clarence Thomas to come debate you on the show. But we had to pay tickets to fly out some billionaire's boats. So I don't know yeah yeah we're it's a little out of our budget we understand but uh uh so you you get into a lot

of details in the book about kind of the whole history of this uh of the of scope of the scotus uh tell us about why you decided to pick such a wide swath to to tell the whole story if it were you're right. You know, the first third of the book is history, really, leading up to this. And I think you can learn a lot from it. And it's interesting because the part of the Constitution dealing with the Supreme Court and the courts, federal courts, is only one-tenth the length of the part dealing with the presidency and Congress, who they all thought were going to be the preeminent branches. And it really took a

long time for the Supreme Court to attain the role it has now. And we want a strong courts system. We want to have the independence of it. But to have the role it has now in some respects of being over the other branches. But it's an interesting thing. How does the court have this power? The history shows that most of the time it has this power because we let it have this power. And most of the time the Supreme Court reflects whatever the political consensus is in the country, or at least the elites of the country. It hugs the middle politically. But there have been a few times

before this time where I think where the court was unusually aggressive or ideological or partisan or maybe activist, and there's been a fierce pushback. It's a cycle of overreach and reaction. And so the book talks about them. The first one was the Dred Scott case, which, as people point out, they might know from high school history, but not necessarily much beyond that. But there was this big case in 1857. It was only the second time the Supreme Court ever struck down a law passed by Congress. It was at a time of great agitation over slavery. And the Supreme Court said that Congress could not bar slavery from the territories as it had been doing. And even more than that, that the Black people were

so inferior that they couldn't be citizens. And this was a really big deal. It was a massive response. It led to the rise of the Republican Party. It led to the rise of the Republican Party. It led to Abraham Lincoln's election to the presidency and ultimately to the Civil War. And it was very political, the response. It's also worth noting, because there's a lot of interesting backstory to all of these things, this was the first really major opinion to leak. Remember last year, there was the leak of the Dobbs decision. This one leaked also. It actually leaked to the incoming president, James Buchanan,

who wanted them to do a ruling like this. He got up at his inaugural address and said, well, the Supreme Court is going to make this big ruling. None of us know what it's going to say. Let's all just agree that whatever it says, we'll go along with it, right? And everybody understood exactly what that meant. So that was the first time. The second time was in the beginning where there was this overreach and reaction

was in the beginning of the 20th century, what lawyers called the Lochner era, after a particularly notorious case, but basically it was when there was industrialization and great inequality, and the justices of the Supreme Court at that time thought their job was to stop government from doing anything about it, from regulating to protect women or workers or public safety. And again, it was a huge political controversy that went on for years. I hadn't realized until researching the book that it was a very legendary presidential election of 1912.

This was when Teddy Roosevelt ran as a third-party candidate, the Bull Moose Progressives. I remember that. He ran against his hand-picked successor. Yeah, we were all out there waving flags. I was 12 at the time. Yeah, one of my earlier lives, I was there. And, you know, his handpicked successor was Taft,

and then Woodrow Wilson was the third guy, and then there was a socialist, Eugene Debs. It was kind of an epic campaign. But Teddy Roosevelt's big issue was the Supreme Court taking them on on these reactionary rulings. And this fight went all the way up to his cousin Franklin's administration. You don't want to mess with those Roosevelt boys. And he had, as a lot of people today know, he had a really significant fight with the Supreme Court as they were striking down the New Deal. He tried to expand the court, court packing, and lost, but they then ultimately backed down.

So again, there was an overreach and a reaction. The third period, and this is a little different for me to say, because I run the Brennan Center. The Brennan Center is named after Justice William Brennan, who's one of the great Supreme Court justices of the Warren Court. And the Warren Court was the only time that the Supreme Court was, in a sense, kind of ahead of the country in being more aggressive in protecting rights and advancing equality. And so many of its rulings, I believe, were vital and important.

And, you know, people know Brown versus Board of Education, or the one person, one vote rulings that really created politically equal districts in legislatures around the country. But there was so much change. And so they reflected and actually spurred so much of the kind of revolutionary social change that was happening at the time that that created a backlash. And that created a backlash against the idea that these changes were being made by judges. And we are still living in that backlash today. I think we're in a moment like that now. I think the reaction to this court and the rulings it's made has only begun, but it's already pretty fierce. And it's kind of like these earlier eras. Hi, folks. Chris Voss here with a little station break. Hope you're enjoying the show so far. We'll

resume here in a second. I'd like to invite you to come to my coaching, speaking, and training courses website. You can also see our new podcast over there at chrisvossleadershipinstitute.com. Over there, you can find all the different stuff that we do for speaking engagements, if you'd like to hire me, training courses that we offer, and coaching for leadership, management, entrepreneurism, podcasting, corporate stuff, with over 35 years of experience in business and running companies as a CEO. And be sure to check out chrisvossleadershipinstitute.com. Now back to the show.

You know, it was interesting to me that when the Roe versus Wade was overturned, there were some of the politicians on the right saying, oh, we need to go after Brown versus Education. And I was like, what? What? Or, you know, I mean, the way they did the overturning of Roe v. Wade, it was interesting because Roe v. Wade, when it was decided in 1973, it got a lot of criticism for being sort of flimsy in the way it did its decision.

It didn't rely on a particular provision of the constitution, but there was a later case called Casey that was 20 years later that also upheld the right to abortion rights. And that was written by Sandra Day O'Connor and Republicans. And who, and she was, the last elected politician to serve on the Supreme Court. And she basically said, look, this is what the country expects. This is what millions of women expect. And there's other bases for doing this than what we've said before. But this is the settled law. And that's what I think a lot of people really thought and what a lot of people really expected. When they did this ruling in Dobbs, they did it in a way that put at risk a lot of other rulings that also relied on the right to privacy as found in the Constitution.

And there's nothing written in the Constitution that says you have a right to privacy. There's also nothing written in the Constitution that says there is federalism. There are lots of things we draw out of the text without saying it explicitly, but everything from the right to contraception, the right to same-sex relations, the same-sex marriage, and other things like that were really put at risk with the way they did the Dobbs case. The justices were very proud of that. The ones who voted for this were sort of very proud of themselves for their courage in taking this stuff on. And a lot of them actually pointed to Brown versus board of education as the right kind of judicial activism they sort of say well you didn't mind it when that happened so they you know they they these cases kind of get trotted out on stages like the heroes or villains in a melodrama who were hissed at the at the right moment and maybe that's the intent of of what they put forth in that dodd decision is to try to untie all the things because i saw the

same politicians saying the same thing maybe we need to unwind uh you know equal marriage or right some of the senator john cornyn from texas for example said that well it's an interesting thing so if you read dobs and even if you read the leaked version, which said this too in even more strong terms, Samuel Alito, Justice Alito said, oh, you know, it's just not true that the right to privacy is put at risk in these other cases. And he helpfully lists them all. And he says, it's just different. And he doesn't really say, honestly, why it's different. And to me, it read like, nice right to privacy. You have their pity if something should happen to it.

Clarence Thomas, to his credit, he wrote, he voted for what they voted for. But he wrote what's called a concurrence, which is he writes a separate essay that says what he thinks, too. And he said, let's be honest, of course it puts these things at risk. I think they should all be overturned. And that's the logic of what the majority just did. Who are we kidding? And so, you know, I kind of think he was right

in terms of his like understanding of where it all pointed. They may, you know, the Supreme Court in the past, as I said, has been attentive to public opinion. Not all of them are right now, though some of them maybe are. There's been such a pushback on so many quarters to the Dobbs ruling that I do think it would be a surprise to me if they then kind of went after, you know, the marriage equality ruling, which was called Obergefell from about 10 years ago. Yeah. You know, it's interesting to me about what you talked about in the book, and you said it's the Warren, I want to say the Warren Commission. I got that stuck in my head.

The same guy. Oh, is it the same guy? Okay. But that just shows you how much trust people had in Earll warren who had been the republican governor of california and was the republican candidate for vice president a political figure he was so well respected that he's the one who lyndon johnson asked to head the commission because he thought he could put the conspiracy theories to bed there you go so uh you said it was blowback now we've had authors on the show that have detailed extensively the start of the betsy devos father the centers for national policy the the federal society the heritage uh

is it the heritage group the heritage uh foundation yeah um and how it's this all kind of started in the nixon era and and it was this it was this basic plan to stack the court into what you now term as a supermajority, according to your book, is to stack the court and win cases that would set precedent for the way the right wing in this country wanted to have. And so was that form then out of that Warren court? It was in backlash to the warren court um and uh you had you know people then saying look the courts are liberal and we need and they're making these big rulings and we need a strategy to deal with it and they formed all these groups there's a there's a sort of a famous memo that was written famous later, a memo that was written by a guy named Lewis Powell, who said, you know, the left is eating our lunch in the courts, and conservatives and businesses

are not paying any attention to the courts right now, which is hard to believe. We need to start doing that. We need to create organizations. He then, within months himself, was appointed to the Supreme Court by Richard Nixon after writing this memo. You know, it took a while. Roe v. Wade was not all that controversial at the time it was handed down. It was considered, given how strong a push there is to overturn it from religious conservatives now, it was actually considered a sort of a niche issue for Catholics. It was a Catholic issue. The evangelical Protestant churches didn't care that much about it, which is kind of hard to fathom these days. But over time, and fairly soon, it started to build as a real, the conservative movement in the United States

in the 1970s moved to the right. And ultimately, Ronald Reagan, for example, when he was elected, he really put in place a lot of the ideas of trying to overturn what the courts had done. But it took a while for them to focus not so much on winning victories, but on putting judges in place. They realized they couldn't get a constitutional amendment to overturn abortion rights, and that what they really needed to focus on was who was on the bench. You mentioned the Federalist Society.

You know, I suspect people have heard of that, but it's really, I think, quite an extraordinary thing. I don't know of anything like it in American history. It started as a student club for law students who thought, oh, these law schools are very liberal and they kind of felt marooned and socially isolated. oiled as it turns out very well funded political machine picking who would be the names for judges the head of the federalist societies this guy leonard leo who gave donald trump the names of the people to appoint to the supreme court that's not a secret they all were it was part of trump's appeal to conservatives when he was running for president so he said i'll don't worry i'll let them tell me who to pick. They run tens of millions

of dollars of ads for these nominees. They create or fund organizations to file briefs in the cases in front of the judges who they put on the court. And, you know, I'll admit, so as I said, I run the Brennan Center. You know, I used to look at the Federalist Society and say, wow, you know, they're pretty effective. And interestingly, they don't seem to have that much money. Well, it turns out somebody had given Leonard Leo a few years ago $1.6 billion, you know, which he poured into them and a network of other organizations with kind of made-up names to run this really significant political operation. And so when I say a faction of a faction has captured the court, the court has always been political, but it's really unheard of to have as organized a method of putting people on the court and as much of a kind of a discipline over

what they're going to rule on things there you go uh it that's interesting to me because that really ties the the whole thing together i mean imagine part of the the you know going after the liberal decisions of the of the warren court you know as part of the whole nixon and the southern strategy raising money it was the big flip between, you know, the unions funding the Republicans flipping to the Democrats and the Republicans had to go, Hey, we got to get some money from somewhere. Well, and, and, you know, there's a story that I've told in other books and certainly many people have talked about one of the biggest political and historical stories of the 20th

century was the move of the of what used to be called the solid South, which meant the democratic solid South, the support for democratic members of Congress and presidents from Southern states, who are of course now the most conservative states and not solidly democratic by any means. And there's a famous story that I believe is true because the person involved has written about it, that the night he signed the Civil Rights Act of 1964, Lyndon Johnson said to his aide, Bill Moyers, who found him in bed and he was sort of morose, he said, I think we've just given the South to the Republicans for a generation. He was only off by a few generations. But so the migration of the white Southern segregationists

eventually to the Republican Party in a lockstep way, it's a pretty big political story. It was well before Trump. It was well before Reagan. It was called, as you said, the Southern Strategy, Richard Nixon. And part of that was who he appointed to the Supreme Court. He had a Democratic Senate and the Democratic Senate under Nixon, because there have been these fights over nominations before now. It didn't start last week. The Democratic Senate rejected two of Nixon's nominees. And after the first one that got rejected, Nixon said to his aide, John Ehrlichman, he said, get me someone more conservative

and someone further to the South. Wow. I want them to see what's happening. So it was a political, it was part of the politics. It wasn't, you know, one of the things I talk about in this book is they wear robes, but

they're not wizards. They're not religious figures reading or divining the intent from the past. Maybe it's college togas. They don't wear laurels on their head. They're political figures.

They have lifetime tenure, and they're not elected, but they're government officials. And, you know, we know that, especially in recent years, conservatives especially have been quite focused on these nominations. And so Donald Trump had one term term and he appointed three people um and jimmy carter say he had one term in point nobody sometimes it's it's it's happenstance it's a weird anomaly it's a really striking thing right now in our system that first of all one political party and this is an empirical statement, not a partisan statement. One political party, the Democrats, has won the popular vote in seven of the last eight presidential elections. And that's the longest winning streak for a political party in American history.

And the other political party has appointed six of the nine justices. And the last time a Democratic president, the Democrats and Republicans have sort of split control of the White House kind of more or less evenly over the last half century. The last time a Democratic appointed president had appointed a majority of the U.S. Supreme Court was 1970. So, you know, this is baked in in some ways. Some of it is strategy, some of it is just luck. But the country's headed in one direction and of it is strategy some of it's just luck um but but the country's headed in one direction and the court is going sharply in another direction that poses a potential crisis yeah it's turned into it's turned into a political game to stack the court and and and do everything uh it you know it's interesting to me uh i think how long has your book been on the shelf

waiting to get published i think most times a year for the major publishers you know uh for in publishing terms it's fast yeah it's not so you know that it focuses a lot on the rulings from june of 2022 so it's less than a year that's very fast in book publishing it's not so you know i hear they publish a whole new New York Times every single day. But in terms of books, it's pretty quick. Yeah. And one of the things that are going on right now, we've seen all these challenges over the years that we've had people on the show talking about Citizens United and some of these different rulings that have basically made it to where, oh, you can buy a politician. If you're a billionaire, just go buy your politician.

And almost forming of an oligarchy system. And then on a grand Putin scale, sort of control of a Supreme Court. And now, you know, we're seeing the news come out. Like recently, there was a thing on Judge Alito's wife leased land to oil and gas firm. Well, Justice fought the EPA and the Intercept here. There's a few other explosive Alito things. Justice Thomas. I can't keep track, I'll be honest.

Yeah. I mean, you're going to have to do an update to your book. You've got a second book here. That's why I asked how long you've been. I had this holding up a fish. And then their attitude is just like, yeah, well, so what? Fuck you. Yeah.

The level of arrogance to me that's being displayed here is really unusual. I mean, you know, you hear people talk about Alito and Thomas as, oh, this is an ethics issue. And, you know, I don't mean to minimize ethics, but, you know, that sort of implies like, oh, can I take this cup of coffee or something like that? In terms of Thomas, and this was both of these stories were broken by ProPublica, the non-profit website ProPublica. In terms of Thomas, this right-wing billionaire, Harlan Crowe, subsidized his lifestyle for decades. And it used to be disclosed. And then the Los Angeles Times 20 years ago wrote a story that revealed it. And so then he stopped disclosing it. And it wasn't just these very expensive jet trips that weren't disclosed, vacations that weren't disclosed. He bought Clarence Thomas's mother's

house with her living in it and renovated, paid for the renovations, and paid for the education of Justice Thomas' surrogate son. If this happened in a state capitol with some state legislator and some great rich guy, we would all call it Tammany Hall corruption. And then with Alito, which was the more recent one, so Alito, maybe take legal advice from supreme court justices do not take crisis communications advice from supreme court justices because the reason this one got so much attention is alito scooped the story by writing an op-ed in the in the wall street journal saying i deny all the charges before anybody knew what he was talking about. And the issue there is a different right-wing billionaire

had paid for him to go on expensive vacations to salmon fishing in Alaska. And then that guy had cases in front of the Supreme Court. And he had very, very significant cases involving billions of dollars that all the news coverage called the Paul Singer, which is his name, the Paul Singer cases involving Argentina. It wasn't like some big secret. And Alito ruled on the cases and didn't recuse himself or disclose the trips. Alito's explanation in his op-ed is, he said, well, yeah, it was a luxury jet,

but there was an empty seat. No one else was using it, so it didn't count as taking the seat, like as lots of people have noted, like I want to try that one on, you know, first class on the flight to Paris, you know. It just reeks of, I'm above the air, you know. It's this world of chummy privilege that, you know,

do I think Clarence Thomas was some big left winger until he went on his jet trip? You know, no, but it's a world of assumed wealth and privilege. And the one through line with both these stories is this guy, Leonard Leo. Yeah. Leonard Leo was the person who fixed them up with their billionaire. Wow. Leonard Leo was the person who fixed them up with their billionaire. And there's a photograph in the ProPublica story on Thomas of a painting that was taken, made, the painting was painted at this luxury resort where they hang out. And it's of Thomas and Harlan Crowe smoking cigars together in front of a lake and honestly to me the painting looks like the painting of the dogs playing poker you know but anyway

it's not great painting but anyway the third person with them is leonard leo wow and he's the head of the federal society the guy with 1.6 billion dollars jangling in his pocket and you know his business he doesn't. And, you know, his business, he doesn't have a case before the court. His business is the court. And so I think it's, it's again, there's always been politics around the Supreme Court, but there hasn't, I think, been something as organized, as well-funded, and as well-disciplined as this. There you go. You know, it's who watches the watchers man uh i think i was stunned to learn that federal judges have you know rules and regulations ethics i think uh but they don't on the scotus uh and i

was just like what they say trust us oh you know it's a basic idea that nobody is so wise that they should be the judge in their own case. And all these other courts, federal and state, have to follow a mandatory code of ethics, but they don't. And it's interesting because Congress could pass this, but the court could do it too. John Roberts does seem to care about the reputation of the court. He's seen as an institutionalist. And I think there's something to that.

He is well aware that their approval rating has collapsed, that public trust in the court has collapsed. He could do something about this. He doesn't have dictatorial power, but he certainly has the ability to push them. But anyway, he hasn't done it. I think that there's reform of the Supreme Court itself. That or term limits is the other one that we're yeah i think that makes a big it would make a big difference yeah i mean you know is it i'm 55 man the brain isn't as sharp as it used to be man i can't see people yeah so i can't remember most things before 55 so I'm on my way there

so you sat on you sat on the thing with President Biden to kind of try and figure out if there's a way to fix some of these court issues maybe expand the courts how can we get President Biden go full dark Brandon and fix this shit

that's really interesting so you're right he has not been very gung-ho about making a big issue out of this he knows a lot about it i mean he was chairman of the senate judiciary committee for years and years and years he knows more about the courts in that way than most politicians do when he knows about getting clarence thomas on well he got Clarence Thomas on, but what he would say, I bet, is that he blocked Robert Bork

from being on four years before that. And that was the first really big modern, like, you know, big battle over a Supreme Court nomination. And they blocked Bork because he was too, they said, too extreme on his judicial views. Part of it was the Nixon thing too, wasn't it?

Did he back that one? Well, it kept being the one who fired Archibald Cox in the Saturday Night Massacre. And as I write in the book, paced around his office at that time saying, this is going to ruin my chance of career advancement, but I guess I have no choice. I guess he was right in the end

about what it was going to do to him. But, you know, Biden did not forcefully speak out about the court after Dobbs, Bruin, and these other cases. He has not taken this on. My friend Jeff Schessel, who's a wonderful writer who wrote a book about Roosevelt's court packing fight, wrote an article in the New York Times last year saying, why isn't he speaking out? He did do this commission. And, you know, these government commissions are very often places where things go to not happen. And we were actually instructed at the outset not to reach conclusions. We were actually instructed at the outset not to reach conclusions. We were publicly instructed. We didn't.

The government agency that works as it's supposed to. Having said that, it was an interesting thing. We heard from dozens of public witnesses from left and right. Some were for court expansion, some were were against it some were for ethics code some were against it over and over again they said oh but i'm for term limits of course yeah there is a strong national consensus across political views for term limits what we support is an 18-year limit.

It should be coupled, I think, with the president making an appointment every two years to try to take some of the randomness, some of the toxicity out of these fights. And every state Supreme Court but one has a term limit or an age requirement to be Chief Justice, for example. As I say, it's very popular.

You could do it for sure by a constitutional amendment. We think you could do it with a statute also. Now, am I under any illusion that if it actually started to move, there would still be kumbaya and every left and right agreeing you know less likely but it could definitely happen i think it's going to happen i think the public gets it and you know george washington limited his own term it was this basic idea that nobody should have too much power for too long i think people understand that

and i think if i think if each president could get two picks, you know, it maybe would balance the country or, you know, people tend to vote for the president in the, what's the right word, in the opinion or the mood of the country. And that would balance things out, I think, a little bit more. I think it would just make the, it doesn't really help one party or the other, but it just would make the court a bit more like the country, which I think is necessary for it to have the credibility to do what it does. You know, it doesn't have an army. It has the power it has because we lose the ability to have the role that it wants to play and that it's at its best that we want it to play.

Yeah. Maybe we should take away free lunches in Geritol. Maybe that would get them to see things our way. I'm just kidding. There was another joke I had. I don't remember what it was. But, you know, the, oh, that was it. The irony is, is that anything that maybe the president would do or the Congress would do to, you know, set some limits for SCOTUS,

they get the final freaking decision. I mean. Well, yeah, there's that. You know, when people say that about a statute, about doing something like that by statute, well, who's going to decide that? You know, just people say that about a statute, about doing something like that by statute, well, who's going to decide that? Just break it down. So, first of all, they've shown us in the past that Supreme Court justices are perfectly able to demolish constitutional amendments, too, not just statutes passed by Congress. Shortly after the Civil War, they gut, I wouldn't say it's speculative.

If the public voted for Congress and Congress, you know, somehow passed a term limits law, for example, and then the Supreme Court said, oh, that's unconstitutional. You can't do that. That would be, the public would be pretty mad. I think you'd get a constitutional amendment pretty quickly. Yeah. It would the front to people's you know democratic rights and maybe that's what's finally happening you know i mean the dodds decision has kind of awoken everybody especially women up to like what hey that people have been stuck in the court for 40 years and it finally

worked in the and you know the republicans are like oh shit our dog just finally caught the car well it's it they were pushing for this thing for decades they were always one vote short i always thought that was quite a coincidence that they never could quite get it done which made me think well at least some of them don't actually want to get it done yeah but this group and it's it makes a difference that it's six not five conservatives because they could lose a vote as they did with john roberts and they still you know pass it they still voted through um it has um there was a backlash after citizens united uh which you know demolished the campaign finance laws in the United States. But nothing like this. You can see it in meaningful ways in the poll results.

Typically, whoever the president is, their party loses ground, does badly in a midterm election. Democrats and Biden talked a lot about Dobbs and democracy as the big issues in this race in 2022 in the midterms. They had the best midterm election in decades for party in power. You see ballot initiatives all over the country, even in very conservative states. And the thing that really struck me was in Wisconsin, in April, they elect state Supreme Court justices in Wisconsin. And, you know, most of the country elects justices under state Supreme Court, not everywhere, but Wisconsin does. And it's a very evenly divided state. Voters are evenly divided. The legislature is not so even

because of gerrymandering, but voters are pretty evenly divided, including for these judicial races. They went from basically an even split to an 11-point win for the more liberal candidate. And that, political scientists will tell you, just doesn't happen to have a swing like that. It's very unusual, and it's the kind of thing that if it were replicated, if it were to happen across the border in other states, that's an earthquake. So I think there's a really significant backlash on Dobbs. It does not seem to me to be going away. You know, a lot of the Supreme Court said, oh, you know,

we're just sending this off to the states for the democratic process to work its way in the states for the democratic process to work its way in the states. And there was all kinds of problems with that, including the fact that a number of the states had laws on the books going back to the 1800s. It's not like they were debating things now. They just resuscitated old laws. Or there are states with voting restrictions or other flimsy democracies. But now you're starting in the Republican presidential primaries to see candidates saying, Oh,

we want a national ban, a national law on abortion. Wow. So, so much for the States. And this is going to continue to keep it front and center as a, as a public issue, you know,

into 2024, it's going to be a big, big issue. The whole Supreme court is, I think. Yeah. It's, it's 2024 it's going to be a big big issue the whole supreme court is i think yeah it's it's interesting to me i think chris christie i think i've been seeing do it and the coded strategy seems to be uh you know he's like well we want the states to make the decisions and then chris christie i think just came out and said well if enough of the states vote against abortion, then we can make a national consensus.

So they're going to build it just like legalized marriage and all those. Right. And you know what? It's an interesting thing of Roe v. Wade when it was put out in 1973, states had begun to legalize abortion. New York just had, California, but there were still most states that had not. Marriage equality was, interestingly, was different. The strategy was learning some of the lessons. By the time the Supreme Court issued its ruling in Obergefell,

which was the name of that case, lots and lots of states had passed same-sex marriage and the country in the polls it was about i believe um i think it was something like uh close to 60 support for same-sex marriage the day of the ruling and now it's about 70 in other words the country ratified it before the court did and it didn't feel to people like it was an illegitimate ruling. It was kind of a reflection of the public consensus. So I still think, I'd be still quite surprised if that one was on the chopping block.

But of course, anything's possible with this crowd. Welcome to America. So Michael, it's been wonderful to have you on. We could probably talk for hours about this, but I know you got to go. And I suppose this book is really insightful for people who want to learn what's going on and maybe vote the conscious of their mind and try and affect, you know,

the future of what's going on in our country from a personalized level in voting. I think that the key answer, when you look at history and you look at today, if people vote on this, if they ask politicians their views on this, if they say Joe Biden or any of the others speak up, if they pass constitutional amendments, if they urge Congress to pass legislation, if they're in the streets and making their voices heard, that's ultimately how to reign in and out of control of the Supreme Court. There's plenty of precedent for it. It seems to be happening now, and I hope this book helps, helps lead the way. There you go. And I think more, I think more shoes are going to drop on the Alito thing.

Thank you very much, Michael, for Michael Alito and, or Michael Alito, Alito and Clarence and all the other folks. I, I, maybe everyone gets dropped in.

It gets, I don't think that, you know, I think there's lots of the justices, lots of the judges don't do this. I think this is, this is this world of backscratching that we're learning about that probably

is making the rest of them pretty unhappy. Yeah. Well, hopefully it leads to something and changes the minds of the public and our governance. Michael, give me your.com so people can find you on the interwebs, please. BrennanCenter.org. There you go.

Thank you very much. I'm on Twitter, M.A. Waldman. I'm sorry, give me that again. M.A. Waldman on Twitter. There you go. M.A. Waldman on Twitter. Thank you very much for coming on the show. This has been very insightful.

My pleasure. Thanks for having me. There you go. Thanks, my honnest, for tuning in. Go to GoodReason.com, FortressCrispFoss, YouTube.com, for tuning in. Go to goodreason.com, Fortress Chris Foss, YouTube.com, Fortress Chris Foss, LinkedIn.com, Fortress Chris Foss. Be good to each other.

Stay safe. We'll see you guys next time. And that should have been something, Michael.