The Daily Show: Ears Edition - What’s Next for the Supreme Court? I Beyond the Scenes

Episode Date: July 9, 2023

Just over a year ago, the Supreme Court overturned Roe v. Wade, limited the EPA’s ability to regulate carbon emissions, and kicked gun issues back to the state level, overruling years of precedent and going against public opinion. Roy Wood Jr. sits down with Daily Show supervising producer and writer Zhubin Parang, ACLU legal director, David Cole and editor of SCOTUSBlog, James Romoser to discuss what Americans can expect going forward, how justices could be held accountable for their rulings, and what it would take to course-correct and see a judiciary that is more closely aligned with public opinion.See omnystudio.com/listener for privacy information.

You're listening to Comedy Central. Hey, welcome to Beyond the Scenes. This is the Daily Show podcast that goes a little deeper into segments and topics that originally aired on the show. You know what the Daily Show is, but we give you a little extra more than what you thought. You know what the Daily Show is, but we give you a little extra more than what you thought. You know what this podcast says? This podcast is like, when you go to the strip club, right, you go to the strip club

to be entertained and eat a little bit of food, and then on the way out of the strip club, one of the dancers pulls you to decide and says, if you the if you're the the their th you're th you're th you're th you're th you're th you're th you're th you're thi, if you're really really really really really really really really really really really really really really really really their their their their tho, tho, their their tho, their, tho' tho' their tho tho' tho' tho' tho' tho' th.. I I's, their, their, their, their...... I I I I I I's, their, th...... I I's, th.. I's, th. I's, th. I's, th. I's, th. that, that, that, that, that, that, that, that, that that's never too late to try love again. That's what this podcast is. Today, we're talking about something that might be a little more serious than what advice you get at a strip club. We're talking about the Supreme Court. Give me a clip. For the past 50 years, ever since the Supreme Court decided Roe v. Wade, women in America have had the right to choose whether or not to have an abortion.

And now it looks like that right is going away. While many people are upset about the decision itself, some people are only upset that we're hearing about the decision. This is as corrosive, as destructive to the Supreme Court as we've ever seen. This is an insurrection against the Supreme Court. It is not up to a law clerk to decide when the decision of the court will be announced. This should have never happened. They should build them make decisions in private and secret and then once they're ready to decide and let the country know how that they have ruled,

let it out. Yeah, yeah, I like that a lot. I understand why these people are upset. You heard what they said. The conservative majority on this court has a fundamental right to choose when they want to release a decision into the world. Imagine having some random person violate your privacy and make that choice for you. Who would do such a thing? The newest Supreme Court term began in early October and today I've got three guests to help me break down where we are with everything going on in the

Scotis. First up, we have Daily Show supervising producer and writer who happens to be a former attorney. Jubem Prang, how you doing, Jubbs. Good to see you. I'm doing great, Roy. Thank you. Thank you so much, by the way, for my first appearance in this podcast to give me this trip club intro. I really appreciate that.

Yeah, I'm sorry that I had a little bit of a meltdown there at the top of the editor of Scotis Blog, a corner of the internet where you can read up on what's happening with the Supreme Court and they tell you everything that's going on. It's all right out there in the open and maybe it'll help you Aceh your civics test. James Ramoser, James, welcome to Beyond the Scenes. Thank you so much for having me. Happy to be here. L.C.O.U.'s legal director and fun fact. He taught both Jubin and James at Georgetown Law. David Cole, welcome to your class reunion. But first I have to ask, before we start, David, who was the better student? James or Jubin. I think I got to give them both A-pluses. Ha-ha-ha, I think I got to give them both A-plus. Can't distinguish. can't distinguish.

Just by the- I don't think that's what my transcript says. I gotta be honest. Just go back and make some revisions. Just retrospectively by the fact that they've made it all the way to this podcast, A-plus. Yes, fair enough. Fair enough. Well, then, since you are the professor, you know,

I'll start with you, David, you know, and Jub and James, you know, feel free to jump in, but be respectful to you professor, right? And shut your ass up, and let me talk first. The last Supreme Court session, David, you know, it wrapped up last June, and it was pretty contentious. It was a lot of, you know, back and forth on a lot of cases, the top of the media cycle. Just to start this whole conversation off, what were some of the bigger cases and issues that were decided during the last SCOTA session? It was a brutal term. President Trump appointed three justices to the court

during his time, and he promised that they would overturn Roe v. Wade. And sure enough, in their first full term on the court, they took a case that they did not have to take, and they threw out a constitutional right that every woman of child-bearing age has grown up depending upon. Really a remarkable decision in Dobbs. But they didn't stop there.

They then went on to strike down a New York law that says, you know, you can't carry a gun on the streets of Manhattan unless you have a reason for carrying a gun on the streets of Manhattan, and you got to get a permit for doing so. Over a century old law struck it down under the Second Amendment. And then they essentially turned the religion clauses on their head. It used to be that the religion clauses required separation of church and state, but in two cases last term,

the court held that a football coach, high school football coach, had the constitutional right to pray publicly at the end of every game in contrary to his school's direction. And in a case out of Maine, they held that the state of Maine, the end of every game contrary to his school's direction. And in a case out of Maine, they held that the state of Maine was constitutionally required to fund religious school, private schools, if they're funding secular private schools. So, you know, where the Constitution used to say separation of church and state now, the Constitution requires the state to support religion and requires the state to allow its officials to pray publicly at, you know, at the football game of all places. So, you know, and in all those cases, they overturned, you know, years of precedent, 50 years of precedent, and jobs, 100 years of precedent with respect to the New York, gun carrying law, and decades. And, you know, and decades, the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the state, the state, the state, the state, the state, the state, the state, the state, the state, the state, the state, the state, the state, the state, the state, the state, the state, the state, the state, the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the state, the state, thebs, 100 years of precedent with respect to the New York gun carrying law, and decades of precedent on the religion clause cases. Okay, so religion, women, guns, thank God the environment wasn't called. Oh, yeah, yeah, I missed

that one. I missed that one. So yeah. Yeah, so. Yeah, what about that one now? How did they reverse the precedent on the environment? Give us that one? Constitutionally does not have the right to exist, it turns out. Yeah, very amazing. It turns out the EPA is unconstitutional. No, they did not rule that the Environmental Protection Agency did not have the authority to require the plants that produce electric power for the the the the the the the the the the the the th. th. the. the. the the the the the the the the the the that the that that that that that that that that that that that that that that that the Environmental Protection Agency did not have the authority to require the plants that produce electric power for the grid to shift from coal power plants

to other more green sources of energy. They made up a new doctrine called the Major Questions Doctrine, which essentially says, if we don't like what a statute says, we'll say it's really important and it's major, and unless Congress has expressly provided precisely what the agency should do, we'll say the agency has no power. And, you know, Congress is essentially more abundant these days. It can't really pass virtually anything. So the notion

that it has to kind of legislate in detail in order to allow us to deal with things like climate change is a recipe for disaster. Okay, so as I attempt to not pull my hair out at everything that you just said, James, all of these things that David was just talking about, went through one Supreme Court session, busy year, I would say. Like, how does all of this not get the same level of public attention, or has it been getting exposure and we the public have just been too busy watching, dancing with the stars and the Kardashians and not paying attention. Yeah, well it's interesting I think that the Dobbs decision took up so much oxygen from the room that people

were so laser focused on that case and to some extent the guns case as well that David talked about that some of these other cases about religion, about climate change and there were others as well that we haven't even touched on, would have been blockbuster cases that would have gotten massive coverage in any other term, but because, you know, the abortion decision was so monumental, you know, some of these other cases with also far-reaching implications, you know, maybe got pushed under the radar, you know, a little bit. But I think if you look at all of the cases under the radar, you know, a little, a little bit. But I think if you look at all of the cases and the totality of the term, what you see is a court that is choosing to take up cases in order to move the law in a new direction and

a quite conservative direction, as David said, the court has a lot of discretion in which cases it wants to hear. There's no need necessarily to hear the abortion case. There's an affirmative action case we'll probably talk about later, that there's really no need for the court to take up that case, but the court decided that they're going to hear it. And just by virtue of taking up basically the most divisive issues in American life and American policy, the court is really intervening in these debates in ways that it doesn't necessarily have to, but reflects the ideological commitments of the court's new members.

Well, and also, I would say, it reflects a lack of kind of judgment and modesty. I mean, when you have three new justices put on a court by a president who expressly and publicly proclaims, I'm putting these people on the court to overturn Roe versus Wade, I think, you know, a modest court would say, well, let's not, you know, make number one on the agenda, overturning Roe versus Wade, because then, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I th. I th. th. th. the, I, I the, I thee, I th. When, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I, I, when, when, when, when, when, when, when, when, when, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I'm, I'm, when, when, when, when, when, when, when, when, when, when, when, when th. And, when th. And, when th. And, when th. And, when, th. And, I th. And, when, I th. And, make number one on the agenda overturning Roe versus Wade because then it looks like we're just doing the president's bidding, we're not acting like judges. And so, you know, I think most people predicted that the court would not overturn Roe versus Wade. It would maybe, you know, limited at the edges. But boy, as soon as you, you know, we we heard the argument in that case it was clear. They were, th, th, the th, th, th, th, th, th, th, th, th, tho, tho, thin, the, tho, thin, thin, the, the tho, tho, tho, the tho, tho, tho, the the, the, their, the, the, their, their, their, their, their, their, their, their, their, their, their, the, their, the, the, the, the, the, the, the, the, the, the, the, the, the, the the the the the the the the the the their, tho, their, tho, tho, tho, tho, tho, tho. thoooooooo. thooooooo. the. thoooooooooo. We're, the. We're, tho. We're, the argument in that case, it was clear. They were they were going for it, and they have not slowed down, as James indicated, in the cases that they're going to hear this term. So with Juvian on the show, now I don't know, you know, how he was as a student there with you, David,

but Juvian at the day of show. So I think we can assume that's accurate in every respect. I don't th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. thi. the thi. they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're they're th. th. th. th. th. the th. th. th. thi. thi. thi. thi. thi. tha. tha. tha. they're they're they're they're they're they're they're they're they're they're they're they're they'rethat's accurate in every respect. I don't think we need to, certainly we don't need to dig any further into my... He made a great joke in every class, you know. I wasn't trying to, I was just trying to answer the questions, unfortunately. Joubin is what I believe to be one of the emotional cores in the writer's wing. As a writer on the Daily Show, Jubin, you know, th, th, th, th, th, th, th, th, th, th, th, th, th, th, th, th, th, th, th, th, th, th, th, th, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, he thi, he thi, he thi, he thi, he thi, he thi, he thi, he thi, he thi, he thi, he thi, he thi, he thi, he th, he th, he th, th, th, th, th, th, th, th, th, th, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thiiiiiiiiiiiiiii, thiiii, thi, thi, thi, thi, th. As a writer on the Daily Show, Zubin, you know, and as a performer, we have to take in a lot of the worst news all the time and then figure out a way to make it funny. And sometimes you have to do that without feeling,

but Jubin somehow is mastered the art, of feeling empathy, and making sure that that heart is honored within the piece in addition to the comedy. So like, so as you've been, like, what are some of the conversations that you and Trevor had, you know, as a team, because I'm not always over there because y'all send me to Atlanta to be in a kayak and sneakers, because nobody told me that I need a kayak shoes and I was wearing my good tasks. Anyway, it was funny though, right? It was funny seeing you cry on that, on the back of that river. It was very amusing.

It was a good piece. When you and Trevor and the rest of the writing team were reacting to Roe v. Wade and that whole leak and its eventual overturn, how do you all manage striking the right tone because the country was angry and there's a lot of times when people don't want to necessarily laugh, but how do you all maintain the balance of empathy versus anger versus humor when you're dealing with all of the Supreme Court decisions? You know, it's like what you were saying earlier, you really just have to channel all the jokes,

and by doing that, by honoring the emotion, it gives you the permission, both in your own psyche and also to the audience to make the jokes. You can't pretend that people are not upset about this, you can't pretend this is not a change, and just make jokes sort of divorced from those feelings. You'll come off either cruel or indifferent, and the jokes won't have that extra punch to them. So the challenge, I think as a comedy writer, especially for topical stuff, is identifying

what it is that is making you feel whatever you are feeling about an issue and then articulating that emotion on the way to a joke. And the way we did that with the abortion, with the leak of the Dobs decision, and eventually the decision itself, was, you know, especially with a lot of the writers, thers, thiers, thiers, thiers, thiers, thiiiiii, th... th. th. thi, thi, thi, thi, thi, thi, thi, I, I, I, I, I thi, I thi, I thi, I thi, I thi, I thi, I, I th. th. th. th. th. th. th. th. th, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I th. And, I thi. And, I'm, I'm, I'm, I'm thi. thi. thi. thi. thi. thi. thooo. And, thi. And, thi. And, thi. And, I'm thi. And, I'm thi. th the leak of the Dobs decision, then eventually the decision itself, was, you know, especially with a lot of the writers who were feeling very disappointed and very angry with not just the justices, but also with the Democratic Party apparatus that was more interested in fundraising off of this than doing anything in the months between the leak and the decision to use their power to do something about it.

You know, the senators like Collins, like Collins, the, the, the, the, the, the, the, the, the, their, their, th, their, their, the senators like Collins and Manchin who were shocked, just absolutely shocked that they had been tricked by the justices into voting for them when they were assured so firmly that Roe v. Wade was a precedent. One of the jokes we had about that was that why did Susan Collins, why is she never tricked into doing anything good? It seems like the only people on the planet who didn't realize what was happening with Joe Manchin and Susan Collins, who now say that they were tricked. Triced, I tell you, by these judges. And by the way, why does Susan Collins never get tricked into improving health care or solving climate change, huh? Yeah? She's never like, oh, damn it, I accidentally canceled student loan debt.

Get it together, Susan! Because people don't come come to to to to to to to to to to to to the show, you know, looking to not laugh. If you are not providing those jokes, then you are just opining and you can go anywhere to find opinions. That's the challenge of comedy writing, is channeling that emotion into jokes that resonate with those feelings. And I think, you know, especially it helps with, we had Desilia to come on after the decision was leaked and then was overthrown to talk about her feelings

that she was doing through a weather report about all the parts of the country they're going to be devastated by this, that you're going to see all the influx of people trying to go like a hurricane into other states to get abortions. Now let's take a look at what's happening along the coast, particularly in New York and California, where there is a powerful surge of desperate people flooding into your states. So blow up those air mattresses and fill up that gas tank

because Tammy from Tulsa's moving in. Doing jokes through the weather, while being very clear what she's actually talking about, I think, builds up a very funny tension that, th............. the, the, to, to, the toe, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, the thi, thi, the the thi, the thi, their, their, their, their, their, they, they, their, their, their, their, their, their, their, their, their, their, their, their, they........... And, the the the the thi. And, thi. And, thi. And, thi. And, thi. And, too, too, too. And, too. too. tooomorrow, tooomorrow, tooomorrow, toe. toe. too. toe. toe. toe. their their their th. And actually talking about, I think builds up a very funny tension that by the end of it when Trevor's like, this isn't really about the weather, and she's like, no, it's not fuck Samuel, you know, anybody who tells us what women can do with their bodies, that kind of releases that kind of releases that

to have Court. Now, our storm centers have been tracking this for years, so we knew this acid rain was coming, but that doesn't mean it still doesn't burn the hell out of our twots. So, that's the weather. Back to you very much, Desi, but clearly that wasn't about the weather. No, no it wasn't. F. Sam Alito and anyone else to tell the woman what to do with the three of you. What changed within the ideology of the Supreme Court? Because the thing is that, you know, the court since the 70s has been majority Republican

appointed. That's not a new thing, but it seems like the decisions that the court has been making are more aggressively conservative. What do you think was the match that lit the fuse on this kind of change in ideology and adjudication? Well, it's true that the court has been majority Republican appointed for many decades, but, you know, until recently, there was no ideological purity test for justices, or at least it certainly wasn't as extreme as it is now. And so former justices like Sandra Day O'Connor

and John Paul Stevens and David Souter, these were all Republican appointed justices, but these were turned out to be liberal to moderate justices on the Supreme Court. That no longer happens. Now Republican presidents are quite certain that every justice they appoint will be a hardcore conservative and will sort of, you know, take consistent ideological positions with the Republican

party's policy preferences and the legal views of the federal society. And there are many reasons for that. There's been an emphatic movement on the right in particular to support a legal conservative establishment and appoint people within that movement to lower court justices who eventually rise the ranks and get vetted and become the top candidates for justice slots under Republican presidents. I think that's right. I think, you know, it's also, you know, the right likes to criticize the left for being woke, but the right is very rigid in terms of what kinds of legal views are going to be acceptable within the power structure that is, you know, at the top of which is the Federalist Society, an organization that started actually when I was a law student, but has become incredibly powerful and

to which President Trump essentially assigned the job of identifying judges and justices. And the other thing that I think that has changed, which is really significant, is that you no longer have to get over a filibuster to confirm a Supreme Court justice. So until the end of the Obama administration, essentially, every judge, every federal judge had to be approved by 60 senators, which meant that you had to get some support from the other party. The Democrats got rid of the get some support from the other party. The Democrats got rid of the filibuster when the Republicans started using it

across the board just to be obstructionist. They got rid of it for lower federal court judges, but the Republicans got rid of it for the Supreme Court. Once you do that, you got 50 votes in the Senate, you don't have to look for someone who's moderate. You don't have to look for someone who has an open mind. You don't have to try to appease the other side. And you know, that, and Trump just, you know, ran with that. And so I think it's the common thing. So the Republicans got rid of it, thrown.

the Democrats got rid of it for judges, but because it had been abused by the Republican Party. For a long time, it was used sparingly. And then the Republicans just started using it across the board, absolutely, regardless of who Obama put up. And so then, you know, that led Harry Reid to say, we're going to get rid of it for, for district court and court of appeals judges, not for the Supreme but then McConnell got rid of it for the Supreme Court. You know it actually is interesting to me as the idea that the Supreme Court and that the

legal system in general has always been just an extension of politics by other means there's always been like a critique of the left. But I feel like, and I'm think about this something you said earlier, David, David, David, th. the, the, the, the, th, th, th, the, th, th, th, the, th. th. I, th. I, th. I, thi, thi, thi, the, thi, the, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, th. M, th. M, th. M, th. M, th. M. M. M. M. M. M. M. M. M. M. M. M. M. M, th. M, th. M, th. M, th. M, th. I, th. I, th. I, th. I'm, th. I'm, th. I'm, th. I'm, th. I'm, th. I'm, th. I'm, th. I'm, th. I'm, th. I'm, th. I'm, th. I'm, th. I'm, th. I the left, but I feel like, and I'm thinking about this with something you said earlier, David, that it feels like this idea that the courts are just simply another part of a political project seems to have now been adopted by almost everybody in the system now. There's no longer any perception that this is a court that has any legitimacy or role to play outside of a political project. And I wonder to the extent that you were saying that even the, with Congress also driven down to gridlock, if this was necessarily going to bring the court into a role like this, or if this is just part of the larger collapse of institutions into this kind of like,

ever-grinding political, culture war that seems to have been accelerating the last like 20, 30 years. Yeah, no, I think it is the latter. I think it's really hard for any institution to stay above the fray when the country is so divided. So it makes everyone, you know, sort of sort themselves into into one camp or the other. And if you try to maintain something in the middle, you just get, you know, killed by both sides. So there's, it it it it it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's partly, it's partly, it's partly, it's partly, it's the, it's, it's the, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's. the, it's. the, it's. the, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the other. And if you try to maintain something in the middle, you just get, you know, killed by both sides. So there's, it's partly that. You know, I do think still that the ideal is important and that a lot of judges, including some justices, uphold this ideal,

which is that, you know, they're not partisan hacks. They're supposed to actually apply the law. T, the law, the law, the law, to, to, to, to, to, to, to, to, to, to, to, to, and, and, and, and to, and to, and to, and to, and to, and to, to, to, to, the the the the their, their, their, their, their, their, their, their, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, their, the, their, their, their, their, their, their, their, their, too, too, they.o, too, too, too, their, they.o, their, their, their, their, their, their, to actually apply the law. They're supposed to be guided by the law. They are not allowed to do, as members of Congress can, just vote party line down the line. But last term, they didn't act that way, and their approval rating across the country has dropped to 25 percent, which is probably above Congress, but it is the lowest the Supreme Court approval rating has been, I believe, since we've done approval ratings of the Supreme Court. And that's because I think people see

exactly what you're talking about doing, that they, you know, that the court is not acting like a court. It's not doing what you're supposed to do. And when you're not, you know, when you don't have to have have have have have have have when there's no democratic constraint on you, you know, your legitimacy turns on acting like a court being bound by law. When you throw out a 50-year-old constitutional precedent, simply because, you know, president Trump got three appointees on the court, just exercise your muscles to do that. People say, wait a minute, this is not a court anymore,

and so we're not going to give it the deference that it would otherwise be due. And that's a very dangerous thing, I think, for this society. Because you do need an institution that can resolve differences that people will accept as legitimate. And, you know, I think they're putting that into jeopardy. After the break, I want to dig a little bit more into exactly that. And let's discuss what this means for the future of the Supreme Court. And what means for the future of lawmaking. We'll be right back after the break. This is beyond the scenes. Beyond the scenes, we are back, we are talking about the Supreme Court of the United States, or as I call it in the Barbershop, Scodus. This is just an aside.

James, you got the Scotis blog and you lay everything out week to week on what's going on in the court. Why don't the Supreme Court have a channel? They need a cha-like. We've got court. The Supreme Court needs a camera in the the th so so so so so so so so so so the their their their th. th. thiiiii. thi. th. thi. thi. thi. thi. thi. thi. thi. thi. thi. thi. thi. thi. thi. thi. thi. thi. thi. th. th. their their their their their their their their their their their their their their their their their their their their their their their their their their their their their.. their s. their s. thi. thi. thi. thi. thi. thi.................................................................these state and local cases. We don't need that shit. The Supreme Court needs a camera in there so we can see this shit happening and unfolding in real time. Be nice. Right, I could not agree more.

Photos Block has been advocating for greater transparency for quite a while. I don't think it's going to happen. The justices have long been resistant to any cameras. They don't even allow photography, never mind live video. Now, there has been one tiny incremental step in favor of good transparency, which is that during the pandemic, when the court moved to remote arguments, it started making live audio streams available of its arguments. And I think, you know, it was actually a real boon for education and transparency by the Supreme Court and the courts decided to keep that in place even when they went back into the courtroom which I was I was happy

about that so everyone can listen to arguments live at least in an audio fashion I think it's going to be quite some time before we actually get video in there. Yeah yeah well love the transparency. Now, Zubin, you took a lot of political science classes and you know, and you know, in a polyscience class, on a government class, we learned there are three branches of government. There's a legislative branch, there's the executive branch, Judge Judy, Judge Judy. I thought the judicial branch has something to do with Judge Judy. More and more it does. Well, she's going to be the next nominee if he wins the election. Yeah.

So we know it's a judge Judy branch. She'd have to take a major pay cut to move to. Yeah. I don't know if she would do it. Very true. Judge Judy making that money. The judicial judicial branch branch branch branch branch branch branch branch branch branch judicial judicial judicial judicial judicial judicial judicial judicial judicial judicial judicial judicial judicial judicial judicial judicial judicial. the judicial. the judicial. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. The judicial. The judicial. T. The judicial. T. The judicial. T. T. The judicial. The judicial. The judicial. The judicial. The judicial branch. The judicial. The judicial. The judicial. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judge. The judicial. The judicial. The judicial. The judicial. The judicial. The judicial. The judicial. The judicial. The judicial. The judicial. The judicial. The judicial. The judicial. the. the. the. the. the. the. the. the. the. the. the. the. The. the. The. The. The. The. The. The. The. The. The. a separate conversation. Judge Judy making that money. The judicial branch, now, we know what they do. They sit there and they try to make sure that the laws are interpreted properly.

But it feels like the Supreme Court is attempting to make new laws. Is that what you're feeling right now, Jubin, in terms of what's going on, with a lot of the precedent being reversed? I'll tell you, Roy, when you go to law school, you learn that there's five extra branches of government that really make all the laws, and it's not something most people know about, but you also have, you know, the school. And the public schools, thank you, shout out. Yeah, you're not going to do that. No, I mean, that's always kind of been the critique, I guess, that you can't really interpret the law without changing it.

You know, to a certain extent, the judiciary has always had that lawmaking power just by virtue of being able to interpret a law and the the the the to, to, to, to, to, to, to, to, to and who doesn't. And I, it feels like the history of the Supreme Court has been one of which justices feel comfortable using that power and to what extent they do, whether the court of that era tends to be one that is restrained in certain areas and is more active in other areas. I do think you argue, for example, the Warren Court was much more in the realm of active lawmaking with respect to criminal justice over the 60s and we are now in a different era where the court is much more active with respect to issues that that the conservative

movement cares a lot more about. Gun rights, religious liberty rights, as you know unbalanced to public rights opposed to those religious liberty rights. I'm very happy to see if Dave and James agree with me, but it feels like that tension between a judiciary that wants to, that cannot help but create law just by interpreting law is one that always exists and it's just a matter of like which just does this feel comfortable using that power on what area? I think that's right, although one of the key things about being a judge, one of the key constraints on being a judge is that you are bound by precedent. So yeah, you have to take the cases that were decided before you and apply them

to a new circumstance and there's room for discretion in how they're applied to the new circumstance but you are bound by those prior precedents and you have to try to make sense of them in a consistent way unless you decide to overturn those prior persons and when you overturn those prior presence then you're not bound by anything and that's what you have with the case like Dobbs that's what you have with those religion cases. That's what you have, I think, with the gun cases. And this term, the court has taken a whole bunch of cases where the argument that's being made to them is reject prior precedent and interpret the Constitution the way we want you to interpret the Constitution,

the way it never has been interpreted before, but to obstruct the ability of other branches to extend rights and protection to disadvantaged groups. So the Warren court did, you know, did create a lot of new law, but it was seeking to expand rights for people, to expand protection for the disadvantaged, for those who are, you know, charged in criminal cases, make sure they have a fair, fair process and like what the arguments for those who are charged in criminal cases, make sure they have a fair process and the like. What the arguments now are the Equal Protection Clause blocks state and private schools from using affirmative action to try to lift disadvantaged groups up and to create integrated and diverse communities.

They're arguing that the Indian Child Welfare Welfare Act, which is a law that Congress passed to try to keep tribal families together, it violates the Equal Protection Clause, and therefore, Congress can't seek to protect Native American kids by singling them out. In a case called 303 Creative, a website designer is arguing that she has the right under the First Amendment to open a business to the public, but then th th the the the the the tri, but the tri, but the tri, but the, but the, but tri, but trie, tribe, tribe, tribe, tribe, tribe, tribe, tribe, tribe, tribe, tri-tri-tri-tri-tribal, tribal, tribal, tribal, tribal, tribal, tribal, tribes, tribes, tribes, tribes, tribes, tribes, tribe, tribe, tribe, tribe, tribe, trie, trie, trie, trie, trie, trie, trie, tribal, tribal, tribal, tribal, tribal, ttribal, tribal, ttribal, tribal, tribal, tribal, tribal, tribal, tribal, a website designer is arguing that she has the right under the First Amendment to open a business to the public but then deny her service to same-sex couples because she objects to same-sex wedding. So she's invoking the Constitution to deny the Colorado legislature's rule that a business open to the public has to serve everybody. So, you know, I think one of the key roles of a court is that they can't to to then a then a thin thin thin thin thin thin thin thin thin thin that that that that that that that that that that that that, that, that, thate the thate thi, theateateate, to to to open a to open a to open a to open a to open a to open a to open a the their, their, their, their, their, their, their, their, their, their, their, their, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thin, thin, thin, thin, thin, thoooooooooooooooooooomuuuu. thooooooooooooooooooooom. their, their the public has to serve, has to serve everybody. So, you know, I think one of the key roles of a court is that they can protect people who

can't get protected through the political process. This court, you know, this term may turn that on its head and use the Constitution as a barrier to other branches protecting disadvantaged groups. Can we course correct this at all? Is there a way for the court to re-legitimize itself, or is this just the way it's going to be going forward when it comes to issues like precedent? Is precedent now officially, we just basically making new rules at this point, right?

Yeah, well, look, I would say a couple things. I think it is important to give the other side because the expansionation the expansion to to to the expansion to to the expansion to to to the expansion to to the expansion, to to to the expansion, the expansion, to to the expansion, the expansion, to the expansion, the expansion, the the to the to the the the the to to the the the the to to to the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, their, thruui.s, thracea, th.s, their, their, their, their, their, their, their, their, their, their, their,? Yeah, well, look, I would say a couple of things. I think it is important to give the other side because the expansion and the restriction of rights really is often in the eye of the beholder. So it definitely is true that you can see a lot of the recent decisions as curtailing people's rights. But I think that people on the right would see many of the decisions as expanding rights in other ways. So the Second Amendment is part of the Constitution. If you believe in a robust interpretation of the Second Amendment, you would see this court as expanding the rights under the Second Amendment. Similarly, if you believe that religious liberty interests are important, you would see the court's religion jurisprudence lately as expanding people's religious rights. And yes, those rights do come up against other interests. I think it's maybe a little simplistic to just say like, oh, the Warren court was all about expanding rights

and the current court just wants to curtail people's rights because I think that they would see themselves as expanding rights, but they're just different rights and they're different stakes. And similarly, with regard to precedence, you know, it definitely is true that the current court is overturning a lot of precedent and quite aggressively and quickly. But again, the Supreme Court has always done that. Again, the Warren Court Court overturned a lot of precedent. Brown v. Board of Education, one of the most iconic decisions in Supreme Court the Supreme Court, overturned precedent. And let's not pretend that if you know, if you know, Kamela Harris is elected to two terms and, you know, appoints, you know, you know, you know, you know, you know, you know, you know, you know, you know, the the the the the their, their, their, their, their, their, their, their, the, the, the, the, toe, toe, the, toe, toe, the, to, the, the, the, the, the, the, the, the, the, the, to, to, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the the the the the the the the the the the the the the the the the the tho, the throwne, throwne, true, true, true, true, true, true, true, true, true, too.a.a.a.a.a, the two terms and, you know, appoints, you know, four new justices when Congress passes the court, you know, a newly liberal Supreme Court will almost certainly

overturn the Dobbs precedent and re-enthrine a right to abortion. And so like what's good for the goose is good for the gander, I think, you know, liberal justices do this too. And so I think it's just important to recognize that to recognize, their, to recognize, their, to recognize, their, to recognize, their, their, the importance, to recognize, to recognize, their, their, the their, the to recognize, their, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, the to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, to recognize, recognize that. You asked about sort of ways to create more accountability. And I think there are some things that Congress could do. They can certainly expand the size of the Supreme Court. There are proposals to enact term limits on the justices, which would ensure that each president gets to appoint like sort of the same number of justices. And I think actually the most interesting proposal is to do something called jurisdiction scripting, which sounds wonky, but it would basically be Congress just simply saying,

the Supreme Court just doesn't have the power to review laws in certain areas. So for example, Congress could pass a new voting rights law and literally say, the Supreme Court has no power to strike this law down. That is absolutely within the power of Congress to do. So there are things that, you know, the political, the political, the political, the political, the political, the political, the political, the political, the political, the political, the political, the political, the political, thi, thi, thi, but, but, but, but, thi, but thi, but thi, but thi, but tho, but thi, but thi, but tho, but tho, but tho, but tho, but tho, but tho, but thi, but thi, but thi, but thi, but thi, but thi, but thi, but thi w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w would would would would would would would would would would would would would thi, thi, thi, the the thi, thi, thi, thi. thi. thi. thiii. thiiiii. thii. thi. thi. thioanitoooooooooooooooooo, thi. has no power to strike this law down. That is absolutely within the power of Congress to do. So there are things that, you know, the political branches could do to check the Supreme Court, to reduce the power of the Supreme Court, or enact, you know, ethical oversight. I don't see any of those proposals really getting off the ground. Biden hasn't spent a lot of political capital on these things.

And with the exception of a few Democrats in Congress, I just don't see the political will to enact these sorts of court reforms. Okay, so let's stay right there in that pocket for a second. With regards to expanding the court versus term limits, should we do term limits, James and Jubin? should we expand the Supreme Court? th. And th. And th. And th. And th. And th. And th. And th. And th. And th. And th. And th. And th. And th. And th. And th. th. th. th. thi. thi. thi. thi. thi. thi, the the the thi, thi, thi, the thi, the thi, the the the the the the the the the the the the the the the the the the the the the the the the the thi, thi, thi, thi, thi, thi. And, thia. And, thia. And, thia. And, thi. And, thi. And, thi. And, thi. And, thi. Weeea. Wea. Wea. Andea. Wea. Wea. Wea. I's. Wea. It's. It's, thea. Wea. Wea. And, thea. And, term limits, James and Juben? Should we expand the Supreme Court? Or what are some other ways that we can return to a judiciary that's more representative of what the people think, instead of just doing what the hell they want to do, or doing what the hell the political person who appointed them wants them to do?

Well, I do think that if you have a judiciary that is more responsive to the public in the in the way of which they are appointed by presidents more regularly and not directly elected which I think is probably too representative of a public opinion for judiciary I think that will go a long way towards at least allowing there to be a little less pressure on the system in other elections where you know you see Senate elections almost entirely now hinge on who will give the president the president of the they they they they they they they they they they they they they they they they they they they they they they they they they they they they they they they they they they they they they they they they they they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are they are the the the the the the the the the the the th. thi thi thi. thi thi thi the thi the thi the the the the the. the they are they are they are they are they are the system in other elections where you know you see Senate elections almost entirely now hinge on who will give the president the majority they need to elect Supreme Court or to appoint Supreme Court justices you know pull a little bit of of the venom out of that area and I

think that's by itself a good reason to to go to term limits a guarantee at least a winning president gets you know two Supreme Court justices and then you don't have the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the th.e.e.e.e.e.e.e.e.eck.eck.e.e.e.e.e.e.e.e.e.e.e.e.e.e. the.e.e.e.e. the. the.e. the. the. the. the. the. the. the. the go to term limits, a guarantee at least the winning president gets, you know, two Supreme Court justices. And then you don't have these situations where you have these bizarre imbalances where some presidents get to appoint a lot, some persons don't appoint any, and everyone is just sitting here kind of just looking at Ruth Bader Ginsburg being like, lady, do you want to do anything in the next year so, so maybe step down, or basically how they hounded, to hounded, to hounded, to hounded, to hounded, to hounded, to hounded, to have, to have, to have, to have, the to have, their, their, their, their, their, to their, to their, they, they, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, th. And, the. And, the. And, the. And, th.e. And, th. And, the. And, the. And, the. And, their, their, their maybe step down, or basically how they hounded Breyer off the court. It's not funny, but there were a lot of people during near the end of Trump's term,

where people were going, we need you to live until Biden gets into office. And that's the kind of political thinking that you would not necessarily want your Supreme Court justice to have, to have to sit there and think in that element like, you know, to have this political calculation of when should I retire or, you know, how long can I, you know, should I just like keep pumping the vitamin so I can last pass this particular president's term. So I think that certainly would help reduce the rest of the political pressure on the system or in the very least would help a little bit more public acceptance of a court of the decisions if they know that well you know

if we really hate this decision we can we will have a regular chance to to vote injustice who might you know mollify it or overturn it. It is it is striking what you were saying there about the the logical decision because I do feel like again this goes to my sense that this court is just openly political now, was reading Justice Alito's concurrence in the gun rights decision that overturned New York's gun safety law. It read like the most Fox News poison grandpa screed I have ever read in a Supreme Court decision. And it felt to me like this is the writing of a person who does not really,

who's not really trying to convince anybody. He is mad that the dissent brought up a point that he disliked them bringing up and wanted to just complain about. And if you are able to make unaccountable decisions democratically you should the whole entirety of an opinion is you should have your reasoning made very clear and if it is getting to the point now where the justice that are able to either with shadow dockets or these kinds of opinions just be like you know this is what like Tucker said then I think like you are really

heading to the situation where nobody is going to respect the court, regardless of their, you know, whether it's a conservative court or a liberal court. And I think that's the real poison in terms of the course of legitimacy. David, how do we get them back to a place of legitimacy where they're supposed to, you know, honor the beliefs that the electorate, the people that they're supposed to be serving? How do you honor the people that you're serving and not just yourself in your own interest? How do we hold them accountable? One thing that history shows is that over time the court has actually relatively rarely parted company with where the country is on the fundamental issues that are presented to the court. When it has, it has lost its legitimacy, it has come under attack and there's been a course correction. So, you know, the first major time was in the, in the, in the, in the, in the, in the, in the, in the, the, thi, thi, thi, the, thi, thi, the, the, thi, it has come under attack, and there's been a course correction. So, you know, the first major time was in the early part of the 20th century, the progressive era, the depression, you know, people were hurting, and Congress and state legislatures responded

by passing laws that protected workers, protected consumers from big business. And the court kept striking those laws down as violating the rights of these corporations. And that ultimately led FDR to propose packing the court. And he didn't actually pack the court, but the court itself corrected and started letting all those laws protecting the rights of consumers and the rights of workers go through. And I think another time arguably is the Warren court, the Warren court to some degree got out ahead of where the country was, and for a long time thereafter there's been a sort of course correction, not a radical course correction, but a course correction. You know, I take James's point that, you know, one right, you know, the rights are in the eye of the beholder to some extent. But, you know, not when you're talking

about abortion. You know, that is a right that 50% of this country enjoyed for 50 years, and the court just took it away. It no longer exists. You know, and I think, you know, to say, well, you know, on, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, you know, you know, the, the, the right right right, you know, you know, you know, you know, you know, you know, you know, you know, you're, you're, you're, you, you, you, you, you, you, you, you, you, you, you, the right, the right, the right, the right, the, the, the, the, the, the, the, the, the, the, the, the, the, the the, the the, the right, the the the right, right, right, right, right, right, right, right, right, right, right, right, right, right, right, right, the, the, right, the, right, the, right, right, the, right, the, the, right, and I think, you know, to say, well, you know, on something like affirmative action, the court is going to take away the power of universities to try to do justice, to try to create integrated communities, to help the little guy, right? So yeah, you can protect the rights of the powerful against the little guy and say you're protecting rights, but that's not what we expect a court to do in a constitutional democracy. So when it doesn't do that, we have to condemn it,

we have to criticize it, we have to protest in the streets. We have to vote like our rights depend on it. We have to look to alternative forums like state Supreme Courts and the like. But ultimately, I think the court will get the message if that happens. And the fact that its approval rating is 25%. They're already, you know, they've gotten the message in the sense of they're going out and try to make speeches saying, oh, no, we don't decide cases on political basis........ their, we're, we're, we're, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, the, the, their. their, thi. thi. thi, thi, thi, thi, thi, thi, thi, thi, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, their, thi. thi. thi. thi. to. to. toe. toe. too. toe. thi. thi. toe. thi. thi. their, their, their, their, they've gotten the message in the sense of they're going out and trying to make speeches saying, oh no, we don't decide cases on political basis. We're, you know, we're not politicians. But you know, they're not going to win their legitimacy back by making speeches. They're going to win their legitimacy back by acting like judges, following precedent

and not deciding cases that really go against, you know, our country's most fundamental values today. David, do you think that in that, because of that, that it's better to leave this question of legitimacy up to the individual justices, that it's better to trust them to kind of like understand when they've gone on over their skis, or do you think there are any structural changes that might operate better and take that decision-making out of the hands of their own savvyness as political operators. Yeah, the fact that everyone's talking about all these, sort of, you know, packing the court or term limits or jurisdictions, that in and of itself sends a message.

Hey, wait a minute, we're doing something wrong. Because no one was talking about that for a long time. Now, th th, th, th, th, th, th, th, th, th, th, th. thi thi thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi. thi. thi. thi. thi. thi. thi. thi. thi. thi. thi. thi. thi. thi. thi. thi, thi. thi. thi, thi. thi. thi. And, thi. And, thi. And, thi. And, thi. And, thi. And, thi. And, thi. And, thi. And, toooooooooooooooooooooooooooooooooooooooooo. And, tha. And, tha. And talking about it right so that internet itself sends a message you know of those reforms I am I I think the term limits one makes a lot more sense than than packing the court or jurisdiction stripping but and I don't know that we'll ever get there but I do think we might get there if they continue on the line that they seem to be going on you know it used to be you to be you you you the the to be the the to be to be the to be the the to the to the the the the to the to the the the the the the the the the the the the to the to to to to to to to to the the the to to to to to to the the to the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the te. te. te. te. term. term. term. term. term term term term te. term te. te. te. te. te. narrow incremental arguments because that's the way the law developed in incremental narrow steps. Now you're seeing advocates come in and say, hey, throw it all out and let's start over and let's look back to, you know, let's be bound by what happened in 1789 and ignore the fact that 200 years of history has come in between.

And, you know, they could do that because they've shown in cases like the religion. what, what, what, the religion, the religion, the religion, the religion, the religion, the religion, the religion, the religion, the religion, the the the the the the the the the the the the the the the the, the, the, the, the And, you know, they could do that because they've shown in cases like the religion cases, the gun cases, and the abortion, that they're willing to throw out, you know, to just impose new rules. And, you know, it's possible that they double down this term. And this is as big a term as last term with, you know, the affirmative action case with the very important voting rights case that we did with the Legal Defense Fund that was argued just a couple a week or so ago. It's possible they doubled down. And they double down this term on equality and deny the ability to try to address equality, probably the biggest problem this country faces. And if so, I think there's going to be more more the v the very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, very, the very, the very, the the the the the the the the the the the the the the the the the the the the very, very, very important, very important, very important, very important, very important, very important, very important, very important, very important, very important, very important, very important, very important, very important, very important, very important, very important, very important, very, very, very, very, very, very, very, very, very, the the the the the the the the ability to try to address equality, probably the biggest problem this country faces.

And if so, I think there's going to be more and more criticism and there, you know, at some point their approval rating will go below Congress. Oh, well, this is great news and I appreciate you for bringing that to the podcast. Thank you very much for, a matter of fact, I just need a break. Because you've made me so frustrated. After the break, we're going to bring it home and we're going to see if the three of you can say anything nice about Scotis or give us anything optimistic to leave this podcast with okay.

We've been hitting them for the first two breaks with gut punch at the gut punch. I want all three of you to sit and think of something nice that what you're looking forward to with the Supreme Court. You have during these commercials for mattresses or whatever they're gonna play during this commercial, you have that amount of time to think of nice things to say about the Supreme Court, okay? I like the robes. I don't think y'all thi th th th thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi the thi thi thi thrown to to to to their to their their their their their their their their their their their their their their their their their their their their their their their their their thorobobobo-a thro-a thro-a to to to to to to to told told tom. tom-a tom-n. tomorrow tmoooooooooooooooooooooooooooe. tm. tm. tomo-tomorrow thae. tha it. This is Beyond the Scenes. We'll be right back. Oh my lord.

Beyond the scenes, we have been talking about the Supreme Court of the United States and all of the odd and controversial and contradictory decisions they've been making the strip your laws away. And before the break, David was so kind to remind us that now they will be trying to attack equality. Thank you so much. David, for that last little bit of good news before we all had to take a screen break. What are some other things that are going to be in the Scotus this term that also live under that umbrella of attacking equality? I know at the state level there's been a lot of gerrymanderingering issues issues's also been a lot of, you know, equality cases in terms of denying same-sex couple

services and stuff like that. What else is in motion right now in this term? So I already mentioned the affirmative action, the public accommodations laws, first amendment exemption from public accommodations laws and striking down the Indian Child Welfare. But there are two big cases involving essentially gerrymandering. One involving racial gerrymandering by your home state, I guess, of Alabama, where 27% of the population is African-American, but only one of seven congressional districts do African-Americans have a meaningful chance to

elect a candidate of their choice. Coincidence. Yeah, and we and we challenge that under the Voting Rights Act, the ACLU and the Legal Defense Fund., the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the Human-Cea-Ca-C. the Hea-Cea-Cea-Cea-Cea-inand-inand-inanderingeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringeringer-inand the the the the the the Hia-Cand the Hia-C. the Hi-C. the Hi-C. the Hi-C. I I I Icala Hi-C. Icala-C. Icala-C. Icala-C. I'm theircalauaumeaumeaumatuaumate, trial-Ia-Ia-Imea-Imeauauaui-cumeauauiole, theircalaurea- candidate of their choice. Coincidence. Yeah, and we challenged that under the Voting Rights Act, the ACLU and the Legal Defense Fund challenged that, and we won unanimously before a three-judge panel, including a Trump judge on that court, because they applied existing law under the Voting Rights Act, which says if you, you know, create the districts in a way that denies a minority group, a meaningful, equal opportunity to elect candidates of their choice, you have violated the Voting Rights Act. Whether you do so intentionally, whether you can prove intent or not, doesn't matter. Alabama appealed and they're arguing essentially, no, you got to prove intent, which Congress

was very clear that that is not what is required. And then there's another case out of North Carolina where, where where, where, where, the, the, the, the, the, the, the, the, the, the, the, the, a, the, a the, a the, a their, a me, a me, a me, a me, a me, a me, a me, a me, a me, a me, a me, a me, a meaningful, a meaningful, a me, a me, a me, a me, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a meaningful, a their, a their, a their, a their, a their, a their, a their, a their, a their, a their, a their, their, their, their me, their, their, their, their, their, their, their, their, their, their me, their mea, meaningful, their me, their me, their me, which Congress was very clear that that is not what is required. And then there's another case out of North Carolina where the Republican majority in North Carolina drew a congressional map that is skewed, heavily towards favoring Republicans over Democrats, far in excess of their actual percentage of voters. And the North Carolina Supreme Court said that's unconstitutional under the state constitution because you can't partisan gerrymander. And the North Carolina Republicans have taken that to the Supreme Court and said there's this thing called the independent state legislature theory. It's a theory because it's not a rule, it's not a doctrine, it's never been recognized before, but they've invoked it. Some of them may even call it a hypothesis.

Exactly. It hasn't even gone to a theory yet. But they've. But they've invoked it to basically say that, you know, because the elections clause gives the legislature the power to create the rules for congressional elections, the state legislatures are above the law. They cannot be constrained even by their own state constitutions, which after all are the things that create them and charter them, and they can't be constrained by state courts, even where they're being constrained by state courts, to the end of equality, to the end of equal representation, the end of, you, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the the, the the the the the the the the the the the the the the the the the the the the the the the, the the the the the the, the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the, the, the, the, the, the, the, the, the, the, the, theateateateateate, theateate, theateateate, theate, theate, the, thate, the, the the, the they're being constrained by state courts, to the

end of equality, to the end of, you know, equal representation for all. The big theme, I think, is real attacks on efforts of many branches of our government and institutions in our society to try to extend equal equality to those who have been denied it. And if the court stands the way of that, you know, I think approval ratings will plummet still further. Do they care about their approval ratings though? I think they do. I know, you know, you said, say something nice about the court.

So, you know, I'll say this. The court doesn't have an army. That is a good thing, right? They cannot call out the troops. They cannot... They got a bunch of fences though, boy. They put them fences up after that Roe v. Wade. They got some law clerks too. Don't forget about that. A lot of the law clerks. Yeah, they're very, very brave those clerks. But, you know, they so they can't, they can't, they can't, they can't, they can't, they can't, they can't, they can't, they can't, they can't, they can't, they can't, they can't, they can't, they can't, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, their, the. the. the. the. the. theat, thea. thea. thea. thea. thea. thea. thea. thea. thea. you know, they can't at the end of the day compel anyone to do anything unless we accept it. And so, you know, and they know that, they know that, that is an important, important constraint on their power. What this court has to be constrained by is legitimacy. If they

give up on legitimacy, if they don't care about legitimacy, you know, then they're are un uncon constrained their their their their their the't care about legitimacy, you know, then they're unconstrained altogether. And I don't think we've seen that yet. James, what are you noticing over at Scotis blog about how Americans are learning and interacting with all the news that has come out of the Supreme Court and that is about to come out of the Supreme Court? Are they more engaged? Are they more connected to, wait a minute, what the hell is going on up there in D.C.? Yeah, absolutely. We have been seeing, you know,

a ton of engagement with the Supreme Court. I think that in particular, you know, the Supreme Court has always had really significant consequences on policy and an American life, but a lot of the decisions are often like wrapped in complex jargon and are difficult for ordinary people to understand. But I think the recent decisions are like, everyone understands what the concrete stakes are, right? You don't have to be a lawyer to understand that the constitutional right to abortion doesn't exist anymore.

You don't have to be a lawyer to understand that people now have more expansive rights to carry, conceal weapons in public. So, you know, the stakes are so clear and people are, you know, obviously rightfully concerned about these stakes. And so we're seeing a lot of engagement, not just, you know, on Skodis Blag itself, but also, you know, what we've really tried to do is, you know, explain what the blog itself, but also, you know, what we've really tried to do is, you know, explain what the court is doing to new audiences in new formats.

So for example, like our Tick-Tuck account has like really taken off, like sort of much to my surprise when my friend and colleague Katie Barlow, also a former student of David's by the way, when she launched that TikTok account a year two ago, I was like kind of skeptical. I was like, really, the Supreme Court doctrine on Tick-Tock. And actually it's become really popular and we've seen a lot of young people, you know, becoming educated on the court in a way that I don't think they otherwise whatever. Three things happened at the Supreme Court today. Orders, two oral arguments, and DOJ filed its opposition to Trump in the Maralago documents fight.

Here is a quick explainer of all of the above. Grab your Negroni Spagliado with Proseco in it and let's go. I think that really is an appetite for, you know, understand for the Supreme the Supreme the Supreme the Supreme the Supreme the Supreme the Supreme the Supreme the Supreme the Supreme the Supreme the Supreme understanding for civil certification in general and specifically trying to understand what the Supreme Court is doing. So what you're saying is that we've come a long way from I'm just a bill, I'm just a bill sitting on Capitol Hill. You know I respect the classics. David you can also be proud of all your students who become law clerks, or you can be proud

the students who've come to conquer the worlds of Tick-Tock and basic late-night cable variety shows. You know, there's a lot of pride to be at here. You got to go where the power is, right? Yeah. This man is the billed, Bill Parceles, Bill home, I have two questions. One about optimism, one about wellness. First, optimism with the courts. Are there any specific cases or anything that makes you particularly hopeful about the future of the Supreme Court, you know. And also what are some

of the changes or what are some of the things that people could be doing within our judicial system to make it feel a little more judicious? Can you say something nice and if not, how do you make it nice? I'll start with you, Jiu-Jubbun. I'll start with you jubbun to the judge. Well, you know, Roy, I'm hearing a lot of the justices and? Maybe, maybe, maybe get in the grind a little bit and do your own work. All right, I'll do that. I'll get on legal zoom and start reading some documents and get myself together. It all snowballs from there, man.

Just snowballs. David, outside of helping juvenile write jokes on the daily show, what can we do to help influence Congress? What can people do to help influence Congress? It's..... that. that. that. the the that. the the that. It's. the the the th. the the the th. the to to to the to to to to to to to to to to to to to to to to to to to the to to to to to to to to to to to to to to to to to to to to to to to to to to to to to to to to to to to to to to to to to to the the the the the the the the the the the the the the the the the the the the the the the the the the to the to the to the the to thoooome.qqqaqaqaqaqaqaqaqaqaqaqaqaqaqaqaqaqaqaqaqaqaqaqaqaqaq.. to, to change the lack of accountability? Not only within the courts, but, you know, what can we do to help influence Congress as well to try and make the courts something that are a little bit nicer? The answer will probably not be a surprise, but it's vote, right? It is vote. Vote like your rights depend on it. That is what we'll send the strongest message to the court. The court is not the only branch

that can protect people's rights. The legislatures can, governors can, mayors can, even prosecutors can. So, and all of those people are up for election. So, you know, I, the thing that gives me hope is that, again, as I referred earlier, the history shows that that the court., th is th is that th is th is the the th is th, the that the court is th, the court is the court is the court is the court is the, the court is the court is the court is the court is their their their their their their their their the court is the court is their their their their their their their their their their their their their their their their their their their their their their their their their their their their their their their their their the court is the court is the court is the court is the court is the court is the court, the court. th. the. the. the. tho. the. tho. thoo. thooo. thoo. thoo. theat, theat, theat, their their their the, the thing that gives me hope is that again, as I referred earlier, the history shows that the court, when it gets out of sync with the people, it's legitimacy crumbles and there is a course correction. That course correction will happen, I believe, if and only if we who are pissed off,

we who think the court's doing the wrong thing, we who care about advancing civil liberties and civil rights for the most disadvantaged in this country, stand up and speak out. And what gives me hope is that we are doing that. You know, from the women's march, when Trump was inaugurated to the Black Lives Matter protests after George Floyd was killed to the march for our lives on gun control. People are engaged, young people are engaged and fighting for the rights that they believe in.

And ultimately when you do that in a democracy and you do it in a sustained way, working with civil society organizations, that's how change happens. So, you know, the court is deeply depressing. But the political engagement of so many people around civil rights and civil liberties today is deeply hopeful. James, we'll go around the horn starting with you to end this. Now, at the horn starting with you to end this. Now at the daily show we have cereal. Let me explain for a second. We have afforded to us,

thank you to Viacom and Paramount, one of the best serial selections in the history of late night. I don't know what they're working with at Seth Myers. I don't know what they're working with over at Corden, but we got at least 20 different boxes of cereal. And when it's a long day, I have myself a nice 3 p.m. bowl of cereal and that's my cigarette. You know, when it comes to just being stressed, I just sit and our little cafe we have and that's how I relax. James, how do you, person who runs Scotis Blob, full of a lot of bad and stressful news, how do you deal with stress?

How do you, what do you do to relax on a regular? Because I think that's an important thing for us to leave our listeners with, because we're all stressed about this. What is your apple jacks? What is your bowl of apple jacks, James? You know what? I wish I had to amapologize. I went down to the pantry this morning to have my bowl of cereal and all that was left was like this super healthy protein rich stuff. It was a raven brand out your house, bro. Absolutely. But I'll tell you what I normally do, which is, you know, I really like to sort of just step away from the Supreme Court and I go to the art museums here in D.C., the National

Gallery, the Phillips Collection. I really love looking at like, you know, 20th century abstract art, and it really is a chance to just like get away completely from what's going on in the Supreme Court, or so I thought until just a couple days ago when the Supreme Court heard this important copyright case about Andy Warhol and so even when I'm looking at modern art I can't even escape. Supreme Court jurisprudence. So maybe none of us can escape it. I don't know. What's your, what do you do to relax? Because I know you have a child there at the house, so, you know, I'm sure you have to leave the house. That's what I'll say. That's how I, that's how I get away from all this worry about the future,

man. I just look at them and their faces and they sneeze in my face and then I don't have to worry about the Supreme Court anymore because I'm that's trying I thying thying thying that's th th that's I th that's I th th th that's I th that's I don't that's I don't that's I don't thin I don't that's I don't that's I don't don't don't don't don't don't don't that's that's that's that's that's that's how I don't that's how I don't that's that's that's that's that's that's that's that's that's that's that's that's that's that's that's that's that's that's that's that's that's that's that's that's I that's I that's I that's I that's I that's I that's I that's I that's I don't I don't I don't I don't I don't that's I don't don't don't don't don't don't don't don't don't don't have tell. I don't don't don't try tell. I don't don't don't don't to that's that's that's that's I don't don't that's I don and that's I think what that's my way that's my way all right David lay it on us well you know the answer I watch the Daily Show that's the correct answer that that's the this was a test this was a test well look this has been a great conversation and I can't think the three of you for coming on and going beyond the scenes with us today thank you thank you th you th you th you th you th you th you th you th you th you th you th you th you th you th you th you th you th you th you th you th you th you th you th you th you th th you th th thi thi thi the the thi thi thi thi thi thi tho tho tho tho tho tho tho thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi thi to to to to to to to to to to to to to to to to to to toe toe toe toe toe toe toe to to to thi thi and going beyond the scenes with us today. Thank you. Thank you, guys. Thank you so much. Listen to the Daily Show Beyond the Scenes on Apple Podcasts, the IHeart Radio App or wherever

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