What A Day - Ruth And Justice

Episode Date: September 21, 2020

Supreme Court Justice and gender equality pioneer Ruth Bader Ginsburg passed away at the age of 87 on Friday. The immediate response online and elsewhere was a mix of grief, fear, gratitude and determination.Within 24 hours of her passing, Senate Majority Leader Mitch McConnell and President Trump both said they would move forward to replace her, despite her dying wish as well as past precedent set in 2016. We talk to constitutional law professor Leah Litman about Ginsburg’s legacy and what’s next for the court. And in headlines: Tiktok and WeChat live to die another day, the US passes 200,000 Covid-19 deaths, and why people are buying flights to nowhere.Show links:votesaveamerica.com/getmitchstrictscrutinypodcast.com

it's monday september 21st i'm akilah hughes and i'm gideon resnick and this is what a day we're here for just this moment the air is clean the san andreas fault lines are peaceful nothing hurts and everything is beautiful yeah for a moment i forgot it was 2020 and that's the best kind of forgetting there is felt like 2009 when I was young, dumb. On today's show, a conversation with constitutional law professor Leah Littman about the legacy of Justice Ruth Bader Ginsburg and what is next for the Supreme Court, then some headlines. It was a long weekend to say the least. On Friday night, Ginsburg passed away at the age of 87 due to complications of pancreatic cancer. The immediate response online and elsewhere was

obviously grief mixed with fear. Justice Ginsburg had unofficially been tasked with holding our democracy together, which I think is just proof of how fragile our democracy is. Throughout her life, she was a pioneer for gender equality and women's rights and became the second woman ever to serve on the Supreme Court when she was appointed in 1993. Years before that, Ginsburg co-founded the Women's Rights Project at the ACLU, where she argued and won five gender discrimination cases in front of the Supreme Court. In the last decade on the Supreme Court, she was the senior member of the liberal bloc, often writing powerful dissents and landmark cases pertaining to voting rights, abortion, gender discrimination, plus decisions on immigration and so much more.

Not all of her opinions were always celebrated. For example, she had a somewhat mixed record on tribal rights, but her presence on the court kept conservative majorities from winning every decision and laid the groundwork for legislation that would strengthen democracy and civil rights. We're going to get into all of that in our interview. But Gideon, let's quickly go over what's happened since her passing. Yeah, it is bleak. So Ginsburg dictated a statement to her granddaughter days before she died in which she said, quote, My most fervent wish is that I will not be replaced until a new president is installed. But of course, less than 24 hours after her passing, President Trump said that he would name a nominee as soon as this week. And Senate Majority Leader Mitch McConnell said that Trump's selection would get a vote. And this is all despite the fact that he refused to Senate vote on Obama's nomination of Merrick Garland in 2016. The question now is

when McConnell will schedule a vote and whether he'll have the necessary votes. If there are just four Republicans who defect, that's enough to scuttle the nomination, assuming that all the Democrats stick together on this, which is expected. At this current moment, Republican Senator Susan Collins has said that the Senate should not vote before the election, as did Senator Lisa Murkowski. So that's two. McConnell hasn't indicated when a vote would occur, which means it could conceivably happen in the lame duck session after the election takes place. Also, these are not all people who value being true to their word, which is a major caveat. In the meantime, voting has begun in a number of states and donations to Democratic candidates shattered records on ActBlue on

Friday night. That's the site that processes a lot of small dollar contributions. The site said that they were seeing $100,000 a minute at some points. So don't let anyone fool you into thinking that the Supreme Court only fires up Republicans. Crooked Media's Senate fund, Get Mitch or Die Trying, had already raised $3.5 million before the news and since then has raised over $17 million more, which is staggering. The money goes directly to Democratic candidates in the most competitive Senate races this year, so definitely check that out at votesofamerica.com slash get Mitch. Anyway, the court is so important. There are so many issues at stake for all of us to protect the gains that have been made and to push for more. That's right. And that's what we wanted to talk

about with our guests today. So to get a sense of Ginsburg's legacy and the months ahead, we spoke with Leah Littman, a constitutional law professor at the University of Michigan, and the co-host of Strict Scrutiny, a Supreme Court podcast from The Appeal. Here's that conversation. Professor Lippman, thanks for talking to us. Thanks so much for having me. Before we get to what comes next, let's just take a moment to talk about the legacy of Justice Ginsburg.

What decisions or dissents of hers stick out to you? So I actually think it's, in talking about her legacy, important to go a little bit earlier, which is her career as a litigator for the ACLU Women's Rights Project, because it was in that capacity that she became known as really the mother of modern sex equality law. nonetheless significant, like challenging North Carolina's eugenics law or challenging the then federal government's policy of forcing women in the military to either quit their jobs or have an abortion. So Justice Ginsburg was an early pioneer for sex equality litigation and reproductive justice litigation before she ever made her way to the court. But now to answer your question, some of the most significant decisions that she has authored as a justice happen to be dissents because, of course, she's been on the

left of the court during the Rehnquist Court and the Roberts Court era. So some of those dissents include Shelby County versus Holder, in which she dissented from the conservative majority's invalidation of the crown jewel of the civil rights movement, the preclearance regime of the Voting Rights Act that required certain states to obtain permission before making any changes to their election laws or procedures. She also authored the dissent in the Lilly Ledbetter case in which the majority of the court said that women who were discriminated against by their employer in the amount that they were paid had to sue the very first time that ever happened in order for them to recover anything at all. And it was, in fact, her very powerful dissent that led Congress to change the law and enact the Lilly Ledbetter

Fair Pay Act. She has other notable decisions. She actually got a majority in United States versus Virginia, which invalidated the Virginia Military Institute's exclusion of women. And she authored the dissent in Gonzalez versus Carhartt, where the majority upheld the Federal Partial Birth Abortion Act. And she accused the majority of invoking an anti-abortion shibboleth that women regret their abortions as an excuse to allow the government to make decisions for women. That's right. And to look forward now, because we did just have the opportunity to look back, replacing her obviously moves the court from, you know, 5-4 conservative majority to 6-3 if it happens in the fashion that it could conceivably happen. So can you talk about what the difference therein would be and what is at stake in that. It is impossible to overstate

the significance of a possible Trump replacement for Justice Ginsburg, because even though there is a majority of conservatives on the Supreme Court now, currently the median justice, the justice who is kind of in the ideological middle and makes decisions is Chief Justice John Roberts. And as we saw last term, he feels compelled by concerns about the court as an the median justice who can sway opinions by joining the more liberal justices. Instead, in order for the liberals to eke out a narrow victory, they will have to peel off not only Chief Justice Roberts, but also whoever this new justice is, or someone like Neil Gorsuch or Samuel Alito or Clarence Thomas. So if that sounds like a nightmare, it is. You know, to think about the implications, you can look back to last term. Right. The decision that invalidated the president's attempt to end the Deferred Action for Childhood

Arrivals program, DACA, was 5-4. Had Justice Ginsburg not been on the court, that decision would have come out the other way, and the president would probably be deporting DREAMers. The decision in which the court struck down Louisiana's admitting privileges requirement that would have closed two of the three abortion clinics remaining in the state was also 5-4. Had Justice Ginsburg not been on the court, that decision also would have gone the other way. Going forward, though, it is truly wild to think about the implications. Obviously, one big area is reproductive rights and reproductive justice, which is part of Justice Ginsburg's legacy. It is very possible that a newly reconstituted court would uphold basically any abortion restriction that comes before them. It is also possible that they will rule that the federal government can't require employers to provide health insurance coverage for contraception. It's possible that they will invalidate the administrative state and say Congress can't

allow federal expert agencies to come up with rules regarding safety, health, welfare, the environment. So they could make a decision that says the Department of Health and Human Services can't create rules for what constitutes a safe vaccine. Next term, they are going to decide whether the Affordable Care Act, such as it is, will continue to exist. The Trump administration is currently arguing that the Republican amendments to the Affordable Care Act rendered the statute unconstitutional. And so again, if Chief Justice John Roberts is no longer the median justice deciding that case, and it's someone like Neil Gorsuch, who doesn't believe in precedent,

Brett, I love beer Kavanaugh, or, you know, Samuel Alito and Clarence Thomas, who, you know, always vote for the Trump administration. Right. That is a very scary prospect. And absolutely it is. And to remain on the possibility of hypothetical nightmare scenarios for a moment, I don't want to engage in it too much. But what does this all mean for potential cases that could arise around the election and actually tallying the votes. I think that's something else that people are sort of starting to consider, especially, you know, based on the timing here. Yeah, so it is very likely that the Supreme Court will continue to get requests concerning lower court decisions involving the election rules. Now, I don't want

to suggest that the current court with Chief Justice Roberts as the median justice has been at all remotely welcoming or receptive to voting rights challenges. Instead, they have held that the voters of Wisconsin had to go to the polls, even in the midst of the pandemic. They held that, you know, voters in Alabama had to stick with the extremely draconian requirements for absentee ballots, like making a photocopy of your government ID and getting two witnesses or a notary.

So adding on another conservative justice could move the needle even further. And that's really saying something. All right. Well, you know, we started to talk about some of the potential nominees that have been talked about. One is Judge Amy Coney Barrett. The other is Judge Barbara Lagoa. Can you tell us a little bit about them? And is there anyone else that you have an eye on that you think might be an October surprise? Sure. So I think it's probably going to be Amy Coney Barrett. What to know about her? She wrote a Law Review article arguing that an originalist interpretation

of the Constitution, which she thinks is the proper method to use when interpreting the Constitution. She argued that under that method, Brown versus Board of Education is wrong. That's a decision holding that, you know, segregation in public education is unconstitutional. She argued that the state of West Virginia is illegal. And she also argued that Social Security is probably unconstitutional. As a judge, she would have upheld the Trump administration's public charge rule. This is the rule, of course, that allows the administration to screen out any immigrants with possible disabilities or who the administration deems might accept public benefits at some point in the future. This rule has a horrible racist history and was used to screen out Black and Brown immigrants as well as Jewish immigrants during World War II. So that is one possible nominee. Next possible nominee, Judge Barbara Lagoa on the 11th Circuit.

One of her most notable decisions is a decision upholding the Florida poll tax scheme. The Florida legislature required persons with criminal convictions to pay all court fines and fees before regaining their right to vote under the state constitutional amendment that voters had passed. Unfortunately, under that scheme, it's extremely difficult for someone to figure out how many or how much court fines or fees they owe since the state won't tell them. So it creates this extremely difficult situation where individuals want to vote. But if they improperly vote, that's a felony. But the state won't tell them whether and how much they owe so they can potentially clear out the debt.

She would have upheld that law. And she did uphold the law. And that law is in effect going into the election. And once we are past this, if we can imagine, or if there is a past this. I can't, but go. I'm interested. I can't get past it.

There is talk of judicial reform, of course, potentially adding justices to the court or imposing term limits. So what sort of reforms do you think are necessary, if any, here? What's kind of the downside and where is the window moving at the moment? Because I know that pack the courts is something that people are pretty enthusiastic about, but I'm curious, you know, with folks you talk to where their heads are at right now? Sure. So I think the most, most important thing right now is to focus on the Senate, because unless you win the Senate, none of this is remotely possible. Instead,

if Joe Biden wins the presidency, but Democrats do not win the Senate, the Supreme Court will continue with whoever President Trump's nominee probably will be, since it appears as though Republicans will likely proceed with hearings and a confirmation, even though an election is already underway. But without the Senate, none of this is going to be possible. In the event the Democrats do retake the Senate, there are a bunch of different options on the table. One is to pack the courts in the same way that the Republicans are currently packing the courts. You know, Republicans held open a Senate seat creating a vacancy for President Trump.

And they invented a rule under which to do so that they are now promptly abandoning while an election is underway. They are stacking the lower courts with extremely young nominees who are overwhelmingly rated as unqualified, not overwhelmingly, but several of them are rated as unqualified, with extreme ideological views without soliciting any input from Democratic senators. They are nuking all of the norms and procedures that used to govern confirmations and nominations. So one option is to pack the courts in the same way that they're doing so by expanding the number of justices on the Supreme Court. That number is set by federal statute, not by the Constitution. And so Congress could amend the number of justices who are on the Supreme Court. Congress could also

expand the number of judges who are on the lower courts. That happened most recently in 1990. President Jimmy Carter also did this. So there is more recent tradition for that. Another option would be what is known as jurisdiction stripping. So you limit the kinds of cases that the Supreme Court could hear. So Congress could pass a statute saying that the Supreme Court can't hear any cases involving the Second Amendment, or if they pass a Green New Deal, the court can't hear any constitutional challenges to the Green New Deal. So that would be what jurisdiction stripping is. Then there are a variety of kind of wonkier proposals, such as balancing the court where you expand the number of justices, but then ask the current Supreme Court justices to,

you know, pick the justices who would serve on the court with them, or you rotate who's on the Supreme Court. So those are some of the options that are on the table. I think, however, that most of the attention is largely focused on the first court packing, and second jurisdiction stripping. I was curious, also, like, sometimes the things that you hear from the sort of more like institutionalist minded legislators is, well, if we do this, then Republicans will respond in kind and then it'll be, you know, just craziness because then they'll add like five more and then we'll add five more. Is that something that is an actual resonant concern? I think in the abstract, or in theory, the concern about an arms race is real and valid.

But in a lot of ways, that ignores the world in which we are operating today, in which Republicans have already unilaterally bulldozed through so many of the bipartisan norms and procedures, not just about the federal courts, but frankly, about all of our other institutions as well. And so the courts are just yet another institution that this administration has continued to just defile in a lot of ways through their behavior. And to do nothing about that would be to validate it. Yeah, for sure. Professor Lippman, thank you so much for talking to us. This was excellent. Thank you so much for having me. That was Leah Lippman, co-host of the Strict Scrutiny podcast. Lippman also told us that she views Ginsburg's deathbed statement as her, quote, last dissent and a directive to anyone who cares about Ginsburg's legacy.

There are all sorts of ways to honor that legacy. You can vote. You can get involved in an organization in your community that's fighting for justice. And we've got one more way. Head over to VoteSaveAmerica.com slash getmitch, where you can donate to Democratic candidates running to take back the Senate this year. The fund splits your money amongst the candidates in the most competitive races. That's votesaveamerica.com slash getmitch. And that's the latest. It's Monday WOD Squad, and for today's Tim Check, we're talking about the Emmys. As we sit down to record, they are wrapping up the last moments of the first ever virtual Emmy ceremony. This year's primetime Emmys were hosted by Jimmy Kimmel, who performed to a nearly empty Staples Center like it was a Vanilla Ice revival tour.

Earlier in the week at the Creative Arts Emmys, there were some pretty cool winners. To name a few, Maya Rudolph took home her first Emmys, plural, and Eddie Murphy took home an award for his hosting turn on Saturday Night Live. So I ask you, Giddy, did you watch any of the good TV shows this year? And who are you excited to see nominated and which wins are you psyched about so far all of those questions so many i i obviously like the regina king win um watchmen was very good it's one of three shows i think i've watched recently because i for some reason i'm very bad about getting around to shows the other

two are i may destroy you which uh is not, that can't be Emmys yet. That would be next year. And Succession and Ozark. So four. So all of those being in the mix are good. And they're also the only frame of reference I have because, quite honestly, Schitt's Creek is just a thing that I've only seen in GIFs. And I didn't know anything else about it until tonight. Honestly, that's fair, and I think after tonight,

you have no excuse not to watch Schitt's Creek because it is deeply funny. Ew, David. But on top of that, yeah, I got to agree. You know, Watchmen is just so killer that I'm glad that they're, like, really, really doing it. But, Akilah, same question. Who were you excited to see nominated and. But Akilah, same question. Who were you

excited to see nominated and win so far? Okay. Well, so obviously it's redundant to say how much I love Watchmen and they have the most nominations of the night. So I'm just excited to watch those continue to come in. Schitt's Creek is so well-deserved. And so I think that that's really wonderful. But my most excited nomination and win is my friend Cord Jefferson. He won for his writing on Watchmen and it is so well deserved. And his speech was really wonderful and he looks so handsome. So I don't know. I was really into that.

Yeah, this is going to sound weird. And I said it before, but I'll just say it into the pod now. Cord was one of the last people whose hands I shook. I'm sure he does not remember. It was at one of your parties, like the the last the pre-pandemic party um so you know that's my that's my link in the story and that's the most important part and on schitt's creek uh shout out to you know eugene levy and bushy eyebrows hive because oh yeah that's that's representation you know i'm also in the bushy eyebrows so like go off for us

we feel seen and just like, we checked our temps. We hope you win an Emmy one day. Stay safe. And we'll check back with you again tomorrow. Let's wrap up with some headlines. Headlines. Headlines. The number of people dying from COVID-19 continues to rise around the world and at home. In the United States, the COVID-19 death toll is expected to pass 200,000 today,

while the global death toll is currently around 960,000. Last week, seven states broke their own records for the highest number of new COVID infections reported in a single day, including Wisconsin, which saw over 2,500 cases in one day, and Utah, which saw over 1,100. The Midwest continues to be a hotbed for a recent surge in new COVID cases. Over the weekend, the country also broke its own record by performing over 1 million COVID tests in a day. That's a big jump from the recent average of testing 650,000 people per day. Experts say that we need at least 6 million tests a day to control outbreaks in the country. Getting there, I guess. The doctor who was accused of giving women unwanted hysterectomies in ICE detention centers is not

a board-certified OBGYN. According to a report from the Daily Beast, Dr. Mahendra Amin was not certified by the American Board of Obstetrics and Gynecology or any other American medical specialties board. Immigrant rights groups said it was outrageous that ICE allowed detainees to see a doctor who had not passed this important quality control. Board certifications aren't required in the medical field, but physicians who want to assure patients of their specialty training usually get them, especially in the case of an extremely invasive and irreversible procedure like a hysterectomy. Also last week, Acting Homeland Security Secretary Chad Wolf rejected a subpoena to appear before the House and answer questions about the ICE detention center, along with other DHS complaints. Democrats called his absence an attempt to shield

leadership from the many growing problems within the department. An update on Trump's geopolitical battle with the international app where teens hit the whoa. Sunday night marks the deadline set by Trump's executive order upon which Chinese-based apps TikTok and WeChat were to be removed from the App Store, with operations to be shut down entirely at a later date. So while we were trying to decide whether or not we'd finally bite the bullet and start our viral TikTok pages while we still could, developments made over the weekend suggest both apps will live to die another day. On Saturday, Trump announced he had approved a deal that gives American companies Oracle and Walmart minority stakes in TikTok. He also randomly said

that the deal would require TikTok to make about a $5 billion contribution toward education. But on Sunday, TikTok's owner ByteDance said it was unaware of those plans. So, you know, you're a run of the mill Trump promise completely unrooted in reality. And with WeChat on Saturday night, a federal judge in California issued a temporary injunction against the Trump ban, citing free speech concerns in a case brought by WeChat users. So TikTok is safe. WeChat is safe for now. And we can all continue to enjoy videos of Gen Z teens with impeccable style teaching us about political issues by pointing at different corners of the screen. God bless them and their pointing skills. How badly do you miss little packages of pretzels they give you on a plane? Is it badly enough to buy a ticket to nowhere? Apparently, that's the case for thousands of travelers in Brunei, Taiwan, Japan, and Australia who have started booking

flights that start and end in the same place. And while going to the airport to go through security, board a plane, land, and leave may seem like perhaps the worst use of time, money, and carbon emissions possible, these flights to nowhere have been very popular. One flight to nowhere over Australia with Qantas Air sold out in 10 minutes with tickets costing between $500 and $2,700. On Father's Day in Taiwan, the airline EVA Air filled a 309-seat flight on its Hello Kitty-themed A330 DreamJet. And in Japan, all Nippon Airways had a Hawaiian resort-themed 90-minute flight with 300 people on board. I personally will be sticking with my own personal flight to nowhere, which is what I call it when I add two entrees and an appetizer to my Postmates cart, stare at the screen for five minutes, and go to bed without

ordering. It is carbon neutral. It's also too true. And those are the headlines. What a Day is also a nightly newsletter. Check it out and subscribe at crooked.com slash subscribe. I'm Akilah Hughes. I'm Gideon Resnick. And we're flying first class to nowhere. It's a lot less depressing than it sounds. I got an upgrade and that upgrade is sweet potato fries. What a Day is a Crooked Media production. It's recorded and mixed by Charlotte Landis. Sonia Tun is our assistant producer.

Our head writer is John Milstein, and our senior producer is Katie Long. Our theme music is by Colin Gilliard and Kashaka.