The Daily Beast Podcast - Why It’s ‘Fine’ If Brett Kavanaugh and Matt Gaetz Hang Out

Episode Date: December 30, 2022

Should Supreme Court justices hang out with extremely partisan figures? Such as a holiday party for instance? That’s what The New Abnormal political podcast host Andy Levy and Jay Willis, Editor-in-Chief of Balls & Strikes, explore after Andy heard “noise” that Justice Kavanaugh attending a Christmas party thrown by big conservative operatives Matt and Mercedes Schlapp. Willis also explains to Andy if there’s something that can be done to stop this behavior, if there should be, and whether or not Justice Amy Coney Barrett is going to forever vote as awfully as the left thinks she will. Plus, TNA Co-host Danielle Moodie interviews Dahlia Lithwick, senior editor at Slate and author of Lady Justice: Women, the Law, and the Battle to Save America, who speaks to Democrats’ biggest blind spot when it comes to white women and abortion. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Hi, I'm Andy Levy, former Fox News and CNN-HLN guy, and current cable news conscientious objector. I'm a former libertarian who now sits pretty comfortably on the left. Hi, I'm Danielle Moody, former educator and recovering lobbyist. But today, I'm an unapologetic, woke commentator on America's threats to democracy. And I'm producer Jesse Cannon, and I'm here to make sure things don't go too far off the rails. We're here to have fun, smart conversations with some of the most knowledgeable and entertaining people in politics, media, and beyond. Our goal is to try and make sense of our current crazy world, our new abnormal, and hopefully even make you laugh through the tears. We're off for the holiday, but that doesn't mean we didn't take you an excellent show beforehand.

Today we're going to talk all about the Supreme Court. Jay Willis, who's the editor-in-chief of Balls and Strikes, joins us to talk about the year and what he saw happen with the Supreme Court and what he sees happening next. But first, we're joined by best-selling author of Lady Justice, Women, the Law, and the Battle to Save America, Slate Senior Editor, Dahlia, Lithwick. Folks, any time that I have the opportunity to talk with my friend, fellow nerd avenger, fellow nerd in the fight to, you know, save democracy from the clenches of evil, I love the opportunity to speak with Dahlia Lithwick, who is the author of Lady Justice, women, the law, and the battle to save America, and is also a senior editor at Slate, an MSNBC contributor, and, you know, just one of the smartest legal minds.

Dahlia, it's been a hell of a year. So I don't even know as we prepare to wrap up 2022, as we continue to hold on to democracy by the skin of our teeth, as we continue to watch a weaponized and radicalized Supreme Court. I want you to give me some of your highlights, low lights, biggest headlines. that you never saw coming in your crystal ball on your 22 bingo card for the law in America, or better yet, the lawlessness in America. I'm trying to decide if I should start with the good stuff or the bad stuff.

Maybe we start with the bad stuff, Danielle, because... I like to end on a happy note. Let's end on positive. I mean, the bad stuff is really bad, right? The bad stuff is Eileen Cannon. It's, as you and I say to each other, every time we speak. Donald Trump, not indicted still, for acts that are so beyond the pale of criminal activity where there are hundreds and thousands of people who are in prison serving ungodly life

sentences for acts that are trivial in comparison. There's Dobbs and the fallout from Dobbs. I can't say I didn't see Dobbs in my 22 bingo card. But I just think we are now living in the reality of states, many states, soon to be half the states, Danielle, where women will have to, like, lie on an emergency room table until they're septic enough to get treatment, right? I mean, it is insane what has happened to the ideas of bodily autonomy and integrity. You know, the lowlights are a Supreme Court that entertained a few weeks ago a case that could sort of subvert democracy for the rest of time and it nary a ripple, right? There's a lot of

deeply disturbing stuff, but I will say at least for me, and I know we talked about it right after the midterms. My sense is it could have been so much worse, right? The election denialists almost all routed, you know, Carrie Lake in the rearview mirror, Dr. Oz in the rearview mirror, you know, a sense that... Herschel Walker in the rearview mirror. And like, I think not just those people as people because we in the press make the mistake of covering them as people, but as malevolent actors who want to end democracy,

I think that the fact that the electorate wanted very little of that gives me some hope. Because, and I know I'll end by saying, I'll end this thought by saying, like, thank you for no longer punching me in the face is not like necessarily a place of optimism. The fact that this midterm election could have so easily been mired in vigilantism, in violence, in intimidation in Arizona with people with guns at the polls, all the stuff you and I feared would happen. Yeah.

And that people not only that that didn't happen, but the people went to the point. polls with democracy itself in mind and rejected a lot of that, that's not nothing. And if you had told me in the beginning of 2022, that people would renounce that, I'm not sure I would have believed you. And I think that that's right. I appreciate your opening because I think that, you know, we live kind of in this and marinate in what I say is the misery of politics, of the law, and understand it, and analyze it all the time. Regular Americans don't, but what you bring up is the fact that they recognized that their lives, their day-to-day lives, were at risk in this midterm. Because, you know, while the pollsters may have wanted to say that democracy was not number one on the list of concerns,

as it turns out, surprise, it was number one on the list of concerns. Because if we lose democracy, then all your other concerns don't actually matter. And I think that, you know, oftentimes we do not credit the American people enough with the knowing of a thing, right? We always assume that they don't know, that they're unaware, that they're too busy. And they weren't, right? They showed up in historic numbers. I think that what troubles me, Delia, and, you know, and you mentioned Dobbs, is that I

guess there's a part of me that believed that when Roe v. Wade was overturned, and in all honesty, maybe I am naive because I never thought that Roe v. Wade until we recognized the makeup of the Supreme Court would ever be overturned. I thought, you know, one of the things that I learned in school was that, you know, precedent actually matters, right? So I thought maybe it's going to be chipped away, but it would never just be overturned. And then I thought that if it was that you would see this country shut down because over 50% of the population are people with uteruses. And what we saw was initial outrage, but for whatever reason, it didn't sustain itself. And I want to ask you, like, was that shocking to you?

That it seems as if we went to a place of, oh, my God, I can't believe this has happened. I can't believe we're fighting for this again to, well, I guess this is how it is. Well, I'm going to push back on that slightly again under the rubric of, thank you for not punching me in the face. I was so traumatized by the pollsters who were telling us in the run-up to the midterms that nobody cared at all. And that not only that, but that women and young people cared about gas prices and the price of butter more than they cared about this. The fact that that didn't happen, in other words, you just made this point, Danielle, and it's true. voters cared about democracy. They also cared about abortion.

They did. And let's just hive off white women for a minute because that's another huge part of the diagnostic problem. But women showed up and young people showed up for abortion. And I would also add on to that in the five states where by direct democracy, right, like not gerrymandered, not vote suppressed, where abortion itself is on the ballot,

abortion wins every time, including Kentucky, right? which it followed on from Kansas in the summer. So I think, in a sense, I was much more worried that completely false narrative that women had sort of integrated and normalized Dobbs and had moved on to parochial economic concerns. I thought that was true. I kind of knew it wasn't because I had spent the whole summer talking to organizers who made it clear, like, we are going to get this initiative on the Michigan ballot,

come hook or come crook. and they were not going to go away. So I take this as a kind of glass half-full narrative, which is I think it was more salient than the pollsters told us it was. And for a lot of people, including in those states where it was on the ballot initiative, where they still voted against interest, right?

They picked the wrong senators. They pick the wrong state officials for abortion. But still, with the choice to, like, enshrine democracy as a right protected in the state, they do it. So I think what that tells, me, it slightly goes back to your democracy question, which is I still think it is very hard to connect Dobbs, which seems like it was like an anvil from the skies that came from the Supreme Court from the skies. And all the ways in which Dobbs and the fallout are facilitated

by broken democracy, right? By gerrymandered red states, by, you know, bought and sold state Supreme Courts. Like all of that boring democracy stuff, the water you and I swim in, doesn't necessarily connect up to people to, and this is a thing I can do something about in the midterms by getting rid of my gerrymandered, you know, non-representative malapportioned state elected officials. So I think, I guess the lesson for me is the ways in which you can say to people, no, abortion's on the ballot in this midterm. And the broad public sense that like, I guess abortion isn't on the ballot because the Supreme Court is there forever and we're stuck with it, that's the thing that is not being connected up. And so what I think I'm saying is,

I saw in those five ballot initiatives that when you directly put it to the public, like, you can do something about abortion, they will do something. When you say you just put into office a secretary of state or, you know, a state Supreme Court that is going to further hamper abortion, that doesn't seem to be getting through. And I think that goes to this larger thing. I know you and I talked about it before, which is how do you help people understand that the election isn't just about electing a governor and electing, you know, your representative? Exactly. It is about your very bodily autonomy within a system that exists to put a thumb on the scale for the other side. That's not breaking through.

Does that make sense what I just said? It does. I mean, it does make sense. And I think that, you know, when we think about the ways in which people understand their role as, you know, citizens in this country. We know that the majority of people that have the ability to vote, don't vote. But we know that when you, to your point, bring direct issues to them that affect their day-to-day life, not this, you know, this massive conglomerate of democracy. But when we say abortion, vote for this, vote for these things. As siloed issues, they get it, right?

And they understand it. And I, frankly, I think that abortion has always been that issue that women and people with uteruses, just understand. Wait, you're going to tell me when, if, how, I need to conceive a child? Like, what country is this, right? And we know that America has a very sordid country because we know that for black and brown women, for poor women, for indigenous women, this country has always told them what they can

and can't do with their bodies. And so that being very real. I want to go back to the point that you made about white women. Let us put a pin in that. Because, you know, the problem that I always have, But Democrats at large is the fact that they always want to dance with the person that didn't bring them. They always want to court the one. It's like this unrequited love that the Democratic Party has with white women that hasn't voted for them in mass for decades, right?

And, you know, while we understand the Democratic Party to be this big tent and we're thinking, oh my God, well, if white women lose the ability to have an abortion, then they're going to show up and they're going to vote. in the quote unquote right way. But no, they actually really didn't. So I ask, as you be the representative of all white women, today, you're so welcome. What is it? Right? Like, is there a thing? Because if it's not bodily autonomy that's going to get white women to depart from their

white husbands and boyfriends and fathers, what is it, if anything? Yeah, I mean, this goes to two things. One is we forget that Roe was the basement, not the ceiling, right? White women were organized for decades around protecting Roe instead of understanding. So this is even white women on our side, right? Instead of understanding that after Hyde, Roe was irrelevant to women, you know, in the South, women in, you know, women of color, young women. Right. So that's part of the problem is that we allowed the conversation about reproductive rights. to be completely dominated, I think, in public spaces by white women and their magical thinking about Roe as the line in the sand. Roe was over before it began. And so I think that's part of the problem, right? I think the deeper answer is if we don't reckon with white women as very much enthralled to

and protective of founding American values around. patriarchy, around religion, around white supremacy, right? Like, that's all inflecting on this. And to fail to say that white women are as susceptible, if not more so, to rhetoric about God and religion, to rhetoric about threats to your family, right? That's all of the crap around, you know, civility. It's all of the crap around groomers and Q&O. And Q&ON and all that is purposely directed at white women. So I think, and this is not me apologizing for white women, but I think part of the problem is that the Democrats took for granted exactly the calculus you just posited, which was always wrong, which was, oh, but once it's your own

uterus, you know, you're going to feel different. And I think that even pre-Roe, white women overwhelmingly had much more power to fly to a different state, to go to a different country, to pay somebody, you know, to do an unlawful abortion. And so I think in a weird way, we made the mistake, Danielle, of thinking that Dobbs was the great leveler, that it was going to help white women see that their interests were aligned with women of color. And I think in a sense, what it did was allow an enormous number of white women to say, oh, well, this is never going to happen to me. Or, you know, if I send my kid to, you know, college in Georgia, I can bring them back if they get into trouble. And that was, I think, that's a very unsatisfying answer to your very hard question.

But I think maybe the most concise answer I can give is this, white women in America have banked on their luck for 200 years. and they still feel like they're going to be lucky afterdub. Yeah, and I mean, I think that they have, they have, you know, bent on their luck, but also, you know, them being described and treated as, by virtue of policy and laws being passed, as like the crown jewel, right? And so I don't need to worry about myself because my white man will protect me, right? And I think that what the misgivings are, history and the fact that we don't teach it properly, and the fact that, you know, most white women don't really understand where their foremothers were prior to the law actually seeing them as people. And that, you know, if we go back in time that those white men gave voting rights to formerly enslave black men before they gave rights to their own mothers, sisters, and wives.

And I'm like, so let that kind of be the thorn that should be burrowing into your side as to why you should be checking for yourself instead of waiting on white men to check for and protect you. Those are my thoughts. No, I think that's totally right. And also, you know, really double down on the fact that white women voted for Herschel Walker and his multiple abuse allegations, the multiple abortions, the multiple abortions, the most. multiple, you know, women paid to make his problems go away. Like, that makes no sense, right? Unless you see it through a lens of, as I said, you know, both patriarchy and privilege, but also, you know, religion.

And no, but he promises us. Like, he's fixed and so it's all good. And also, I think, through the lens of, you know, a celebrity culture that rewards the Herschel walkers of the world. because we just, you know, particularly in the South, and when we're talking about sports, just think that he's a demigod. As you said, I think there's so many entrenched levels of voting against interest for so long

that it's almost impossible to expect that Dobbs itself was going to do the work of curing all that. Yeah, you couldn't have planned a better time to put out your book. Lady Justice, you really couldn't have, you couldn't have planned for things to go so long. left for women in this country to put out this book, Lady Justice, Women, the Law, and the Battle to Save America. Tell folks a little tidbit about your book and why it is important now

more than ever. I mean, my very short answer is that it would have sucked if women had completely flopped over the finish line in the midterms and done a disservice to democracy because it would be very hard to be selling a book right now that sort of is predicated in the idea that women are going to save democracy. So I think the one takeaway that I have pulled out of both the book and the midterms is that it's not an accident that the last half of the book is all about voting and voting rights. The book lands on Stacey Abrams. And please don't tell me that Stacey Abrams lost her race. Therefore, her work was not important. Stacey Abrams gave us, Warnock. Stacey Abrams gave us a template for thinking about voter engagement and recommit

to minority voters who have no reason to believe in democracy and the ways in which that is a years, if not decades-long, proposition. So I think that the tidbit I have is that the book is sort of ostensibly about women in the law, but ultimately it's about women in democracy. And it's a way of saying that you can win these lawsuits here and there, which we do. But that if you don't fight for a representative Senate, if you don't fight to get the electoral college fixed and the electoral count act amended, if you don't fight for all of the ways in which, I know you and I have this conversation a lot,

a democracy that was designed to put down women and people of color will keep doing that unless you fix it. Democracy reform is the most boring, urgent issue in America. And that, like, I think women are really at the heart of that, Danielle. I really believe that the door knocking and the postcarding and getting stuff onto the ballot and running for office in these unprecedented numbers is a recognition that this is not a spectator sport, democracy reform. And that what Stacey Abrams is modeling and in the book, Nina Perales is modeling at Maldef and what, you know, Vanita Gupta was modeling at the Leadership Conference is the work of all of us, all of us as women, which is we can't sit around and pop, popcorn and wait till 2024. Democracy reform is an every single day proposition. And in the absence of it, we will get Dobbs.

We will get Bruin, the gun law. We will get the praying coach on the 50-yard line. We will get the Indian Child Welfare Act invalidated. We will get affirmative action invalidated. All of that stuff is coming. And it's all fixable. But it's not fixable if we just sit back and wait until 2024. Oh, Dahlia.

You know, amen. And I can't thank you. Honestly, I cannot thank you enough for the work that you continue to do, for the issues that you bring to the forefront for this book. Folks, if you have not picked it up yet, Lady Justice, Women, the Law, and the Battle to Save America, thank you, dear friend. And, you know, the midterms allowed us to say we will live to fight another day in 2023.

And thank you, Danielle. And also, on behalf of white women, I'm sorry, but I'm not broken. and I'm grateful, grateful, grateful for your voice and what you do, love. Thank you. Appreciate you. It's been a Supreme Court session full of interesting cases, fascinating arguments, and comments by conservative justices that made you go. He said, what now? And they're just getting started with the January sitting of the term kicking off on the 9th of that month.

Here to give us insight into what we saw and maybe what we'll see is the editor-in-chief of Balls and Strikes, Jay Willis. Jay, thanks so much for being here. Hey, thanks for having me. I appreciate it. So, Jay, let's talk about ethics and the... Supreme Court. Most recently, some noise was made over Justice Kavanaugh attending a Christmas party thrown by Matt and Mercedes Schlapp, who are big Republican and conservative operatives, and the fact that Matt Gates and Stephen Miller and people like that were there. How big a deal is this really? I think you've got to keep a couple different things in mind at once here.

Sort of at a basic level, conservative political elites hang out with each other all the time, like Washington is small and clubby and folks move. in and out of government over the years. They knew each other in different capacities. It's not the biggest shock in the world that Brett Kavanaugh is buddies with the Schlapps, friends of the program, as I understand it. Yes. Yes. Supreme Court justices are the only Article III federal judges who are not bound by any code of ethics. So to the extent that a normal person who is not a lawyer looks at Brett Kavanaugh hanging out with this like absolute collection of like right-wing Trumpy freaks and thinks, well, that's not great. That makes me have some questions about

Justice Brett Kavanaugh's ostensible impartiality. Legally, he's just fine. The Supreme Court has repeatedly said that although it is, again, not subject to any binding code of ethics, that it doesn't need to be bound by any code of ethics. And Chief Justice Roberts is explanation for this is more or less, well, you can trust us. We're Supreme Court just court just, we know the right thing to do. So like to me, it's just sort of table stakes, like, of course at this point, Supreme Court just court just, should be bound by some sort of code that is like, maybe when given the opportunity to hang out with Matt Gates, you pick a different Christmas party to go to that night. Well, that's just good advice in

general. That's a good point. This is less political and more like, do you want to have a good time or not, like, why would you go to this shitty party? But I also want to stress that the problems that plague the Supreme Court and particularly the court at a time when it's controlled by six conservatives are not going to be solved with like a couple of ethics rules. Like, the court is not going to be good if Brett Kavanaugh either can't go to the Schlapps party or has to like publicly disclose that he went to the Schlapps party. So I want people to keep in mind that yes, ethics would be good. Yes, ethics are necessary. And no, they are not sufficient because the Supreme Court is going to keep doing bad stuff, no matter how open their social calendars have to be to the public. There's nothing shocking about Brett Kavanaugh going to this party. He and I guess it was match slap, I think, worked together in government. And like you said, it's an insular club. And there's almost definitely something similar on the liberal side, which is not to say that Justice Sotomayor,

is going to Christmas parties with, I don't know, fill in the blank, but Washington is a small town, et cetera. You said this is not going to be solved by just saying, you know, a rule about don't go to a Christmas party. What can be done? What kind of things would you want the court to do or would you want the Chief Justice to do to sort of maybe reestablish some faith in the court's ethics amongst the American public? I want to address that one point that you brought up because I've seen people make that argument like really sincerely, you know, obviously the liberal justices are doing this too. I just want to say, like, if there is evidence that, like, Sotomayor is going to a party with AOC and Bernie Sanders, like, I would just like to see it once. The possibility that this exists always comes up in sort of this debate, usually from, like, national review bloggers.

I saw that, yeah. I would just like to see it once. Show me once, and you can have your point. But until then, like, it sure seems like. it sure seems like this stuff comes up disproportionately on one side of the ideological spectrum. Now, as far as ethics rules, I mean, you know, we've seen a lot of headlines about possible coup enthusiasts to Jenny Thomas and Clarence Thomas's refusal to recuse himself from cases in which Ginny Thomas's interests may be implicated.

An example of more robust to ethics rules would be firmer, black and white. rules around when justices have to recuse themselves. But again, like, I don't think there's a perfect set of ethics rules that Chief Justice Roberts can, you know, draw up in his notebook at night to restore faith in the Supreme Court. The public does not trust the Supreme Court. Right now, it's, you know, approval ratings are at historic lows. The public doesn't trust the Supreme Court because of these substantive things that the court is doing in cases. Now, the, you know, Ginny Thomas's Facebook misadventures, like that plays a role and that gets headlines. But the substance of what the court is doing is far worse than sort of the optics of how they

decide, you know, what cases they can be in the conference room for and which cases they have to go on timeout for. Yeah, I mean, that strikes me as correct. I think what you could say about the, you know, the Jenny Thomas type stuff is it ain't helping. Definitely not helping. This past month or so was Justice Katanji Brown Jackson. it was her first sitting. What did we see from her? What do we think we're going to get from her going forward? How do you think she did great? She was, I think, generally sort of on the more vocal side, the more dive right inside when it comes to new justices. Some folks take a while to feel their way out on the bench, figure out who they can interrupt when to jump in, when to sit back. It's just

like working in any other workplace, frankly. You've got to feel your colleagues. One thing that she did in a couple of cases is she came forward with sort of a very robust and well-developed argument based on history, based on constitutional history, usually around the 14th Amendment, which came up in several cases over the past few months. And the conservative project is ostensibly about originalism. What did this mean to the framers? Not what does it mean now, not what do we think or wish it would mean, but only its meaning at the time of the constitutions or the amendments ratification.

And Justice Jackson came forward with her version of a progressive originalism or a leftist originalism using historical data, facts, information from the time to argue for a quote-unquote originalist interpretation of the Constitution that pushes the law to the left rather than to the right. I am skeptical of this for a couple of reasons. First of all, I just don't view originalism as like a sincere methodology. I think it's reverse engineered to arrive at right-wing outcomes. And I'm sort of skeptical of the long-term efficacy of efforts to repurpose it to arrive at progressive outcomes.

But I do think it's cool that she is bringing actual history to bear, especially when the conservatives are, in many of these cases, relying on extremely dubious or thin thin versions of history to justify their preferred outcomes. Yeah, it is interesting that the originalists' interpretations or what they claim the founding fathers meant, how well it aligns with their views of things now. Crazy coincidence, yeah. Yeah, it's just really weird.

I mean, good for them, I guess, that they are able to channel the founding fathers that well. But, boy, it is amazing. This may be a weird question. Just as Amy Coney Barrett, are there maybe signs she's not as sort of hardcore about her conservatism as Alito, Thomas, et cetera, or am I just wishcasting here? Unfortunately, my best guess is that you're wishcasting there. Okay. All right.

You're right in that there have been a few cases in which she has asked questions that sound like somebody who is thinking about moderate compromises, more center, positions. She sounds different from like Sam Alito, who is Fox News Brain Freak. Right. But unfortunately, once those cases actually get to an opinion, it turns out she just votes with the bad guys. So I think that is more optics than substance, or at least it has been so far. You know, we don't have, we don't have a whole lot of data on her. But so far, the sort of fairy tales told by certain ostensibly left of center. academics about how Amy Coney-Barrant will be moderate and reasonable, those have not come to pass.

I feel like we get a lot of those. Every time a very conservative person is nominated to be a justice, we get, there's always at least one or two big op-eds from either a law school professor or someone like that who's at least, you know, center-left, as you said, saying, well, hold on a minute. They're actually not that X, you know, whatever. Yeah. And it never works out that way. Yeah, this tends to be my own hobby horse.

You can go back in my Twitter archive, assuming Twitter is still up by the time this is posted. And you will see me getting upset with a lot of the Noah Feldman's and Neil Cattials of the world. I think those get published for two reasons. First of all, just from a publication perspective. It's a pretty appealing thing if you're an opinion editor at a legacy publication to be able to publish sort of the, you always want to look for the counterintuitive take. That's going to get more clicks, even if many of them are outrage clicks. But I also think it fits into sort of the traditional liberal conception of the law as neutral and above politics and separate

from policy. Every one of these op-eds reifies the idea that there is an objective answer to legal questions. And even if you may disagree with Amy Coney-Barratt's politics, you can't argue with her reasoning. you can't argue with her good faith. And, I mean, it's just a constant case, right, of Lucy pulling the football away from Charlie Brown. There are a bunch of op-eds out there talking about how Brett Kavanaugh could save abortion. Right.

Now, Brett Kavanaugh could save Roe, and these people are so deep in these, like, elite lawyer-brain circles that they are missing the forest for the trees. The conservative legal movement has been working towards these policy outcomes for decades. and the fact that you were like buddies with Brett Kavanaugh when you guys clerked at the such and such a court back in the day, that is not going to change the hearts and minds that

matter. Sort of along those lines, there were three justices that you referred to, I thought it was really funny, as the Newsmax three. More and more people are saying it. You hear it a lot. Yes. We're hearing it more and more. I thought it was interesting that the three were Thomas, Alito, and Gorsuch, because I sort of would have thought that the third one would have been Kavanaugh. Why Gorsuch and not Kavanaugh? The reason those, I think, are, again, the phrase you're hearing catch on, the Newsmax 3, is those are the court's most committed ideologues. They want right-wing ideological outcomes, and they don't particularly care about the process

it takes to get there. Just like broad illustration of this, right? The outcome in Dobbs, the case that overturned Roe v. Wade, not politically popular, almost certainly hurt the Republicans at the polls in 2022. But Sam Alito didn't give a shit. He wanted to overrule Roe. He's been part of the movement working to overrule Roe for his whole life. And he had the opportunity and he took it.

Brett Kavanaugh is more of a partisan than an ideologue. He is undoubtedly like the most quote unquote political of the justices and that he's had a long career as a Republican operative in D.C. You know, one of these ruddy-faced gray suit-wearing guys who rotates between think tanks and law firms and stuff like that. He was, I believe, a staff secretary in the George W. Bush administration. That's a position that's like very close to the president, not quite like personal assistant, but he is very close, for example, with George W. Bush and with sort of that political sphere. Before that, he worked on the Bush v. Igor recount. This is a guy who, more so than the other justices, has been identified with, like, a political party, not like an ideological position. So I think he does think a little bit more about the optics of what the court does.

Now, I want to stress that most of the time this manifests in, like, sort of mealy-mouthed concurrences, where he's like, I agree with this manifestly unpopular right-wing outcome, but I'd like to stress that I have thought a lot of about this and, you know, as the father of a daughter, and so on and so forth. So it's not a substantive position, but he is not like, I don't think he's Newsmax brain. I think he's still sort of on the Fox News Wall Street Journal Gateway Drug. That's really interesting. And it makes perfect sense. As I, as you explained it, it clicked. And I was like, okay, well, that makes absolutely perfect sense. So speaking of two-thirds of the Newsmax three, there were two sort of, I guess you'd call them low lights that I can think of from the past term in terms of oral arguments and things that Justice has said. One of them involved Justice Gorsuch making a three-fifths compromise comparison,

and the other was Justice Alito joking about a black child wearing a KKK costume. I'm going to give you the fun job of explaining those to our listeners and then ask you to pick which one of those wins for biggest lowlight. That, my friend, is a tall task, but I will do my best at it. So the black child wearing a KKK costume, I believe the KKK people, I believe they're called costumes. I think that's a technical term. I think so, yeah. The racist pajamas.

Exactly. It was part of like a, what happens at Supreme Court oral argument a lot. It was part of a long hypothetical dialogue between Alito, one of the lawyers and Justice Jackson. The hypothetical sort of spawned a bunch of different iterations. It got like kind of weird and out of control. and then Sam Alito was, again, talking about black children, wearing racist pajamas, while the audience laughed, in my view, deeply uncomfortably.

Yeah. The Gorsuch three-fifths thing, I thought was, like, real weird. It was in this case, Morvee Harper, about the independent state legislature theory. I won't go too far down the legalese rabbit hole for this, but he was basically trying to get the lawyer for the non-awful position to agree that his position was, like consistent with the three-fifths clause or would have led to support for the three-fifths clause. It was uncomfortable, I thought, how long Gorsuch was hammering this. And the poor lawyer just had, you know, had to offer the polite legalese version of, like,

no, Your Honor, I don't support the three-fifths clause. Also, what the fuck are we talking about? Right. But like stepping back, I think, from the, you know, explaining the punchline of this, these, like, very bad conservative stand-up routines. Dali Lipwick wrote about this. slate. I think the higher takeaway is that for the conservatives, these cases that they're taking up, like, they're so sure of not necessarily the outcome in any individual case, but just their power

over the court's docket and its proceedings and the general direction in which they're pushing the law that they can just kind of treat the whole thing as a joke. Like, why is Sam Alito making jokes about black children wearing KKK outfits? I don't know, man, because he can. Like, there are no consequences for him for like doing a little knockoff gutfeld riff. Like there are no consequences for that other than like a couple op-eds that he's not going to read anyway. It's a pretty grim contrast where there are the rights, the livelihoods, the dignities of hundreds of millions of people at stake, you know, across the court's docket. And the conservatives kind of just think it's a big joke. Yeah, it sort of feels like the, I don't know if it's like the judicial equivalent.

of saying the quiet part out loud. Like, it's not quite that, but I agree. It does sort of seem like they're just completely emboldened, and they know that it's their court and that they can sort of, you know, do with it what they will. And it's letting them go to these absurd extremes and make these absurd arguments. Because as you said, I mean, what are the consequences? They're lifetime appointees.

And they've got a very, very solid majority right now. And whatever they say in oral arguments, more than likely, they're position. is going to be the majority one. So they, you know, they're unleashed, as it were. Yeah, one dynamic, I think, is important to understand about this court is that, you know, it takes five justices to win a case, to make a majority, right? So there have been sort of a lot of headlines about how a six justice conservative block means that they can lose a vote and still win.

Behind the scenes, when the court is deciding which cases to take up, it only requires four justices to accept a case. So they can lose two and still get a case before the court. There's not like a, you know, there's no one case you can point to in terms of how this manifests. But it's important to understand that the court's docket is going to be increasingly clogged up by these sort of fringe cases that never would have come before the court, you know, three years ago, let alone five or ten years ago, that are pushing the law to the right. There's not really cases on the court's docket this term that have a chance of pushing the law to the left any meaningful way. So I guess when I hear, you know, Alito and Gorsuch doing these riffs, I think a little bit about what the court is dedicating its limited time and resources to and also the cases that could be making what is, in my view, good law that are just

never going to get an audience before this court. Yeah, that's a really interesting point. And of course, part of that is, you know, as you say, they only need four to get to get it before the court. And then they can be pretty confident that they're going to get that fifth or sixth vote, even from one of the non-newsmax brained people. And even if they don't, like, you know, a closer case, maybe they still lose. But Thomas gets to write a prominent, unhinged dissent, you know, saying that he thinks the majority is wrong and calling for more challenges to the law or as dissents often work, sort of outlining the case that he thinks would come down differently, basically an invitation to conservative lawyers and activists to find the case that he think would get them there. Even if you don't,

you know, win everything at once the way the conservatives did so quickly overruling row, it might just be a process of a case or two. Sometimes the law moves to the right slowly. Sometimes it moves faster, but what matters is it's only in the one direction. Yeah, that's just an unbelievable way of looking at it that honestly sucks. Yeah, I'm not a fan. No, I know. I know. Jay, thank you so much for being here. Your insight is fantastic and hopefully we'll have you back some time. Everyone listening, go to balls and strikes, go read it. It's a fantastic legal newsletter, and you'll learn a lot from it. Jay, thanks again. I appreciate the kind words and thank you again for having me. Hope you enjoy checking out this episode of The New Abnormal.

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