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Lisa Graves: I'm Lisa Graves and this is Grave Injustice, a podcast from Courier that explores how extremist interest groups have hijacked the U. S. Supreme Court to advance a far right wing agenda. In this series, we focused on five cases before the Supreme Court in its most recent term and what a terrible, horrible, no good, very bad term it was.
We saw the court's six right wing appointees shelter Donald Trump for his crimes. And bestow new, almost king like powers on the executive.
the court upheld flagrant racial gerrymandering and stripped the federal government of its basic ability to regulate that.
Even when the court sided with reason, for example, by not revoking a life saving common sense gun law or banning a safe, effective abortion pill, the Supreme Court took basic rights and protections we had once taken for granted [00:01:00] and then
put them up for debate and possibly for revisiting after the election. For that reason, we decided to end this series with a special bonus episode to explain each of the court's decisions and what they mean for the future of America. Unlike previous episodes, this episode is going to be a free form, roundtable style discussion three top notch legal analysts, my colleague Dahlia Lithwick, who covers the courts for Slate Magazine and hosts the podcast, Amicus.
Michael Podhorzer, the founder of the Analyst Institute and the Research Collaborative, and the author of the substack called Weekend Reading, And Alex Aronson, the founder and director of the legal advocacy organization, Court Accountability, who I work closely with.
It was such a privilege to have these great legal minds all in one room with me, well, a virtual room to dive deeply into the right wing Supreme Court and how its recent actions have advanced the plans of a small group of of extremist far right actors. We will [00:02:00] catch you up on each of the five cases throughout this episode, but if you're just joining us, I definitely recommend going back and listening to our episodes to understand the history and strategy behind these right wing attacks on our freedoms.
I started the discussion by asking my guests for their reactions to the latest Supreme Court term.
The court had just granted Trump immunity for illegal acts committed as official acts while in office, which could include attempted election fraud and inciting the violent insurrection on January 6th.
We get into that case in a moment, but to start off, I was eager to hear what Dahlia, Mike, and Alex had to say about the state of the American judicial system in general.
Michael Podhorzer: I think this was a week where for some who have been really trying to avert their eyes for too long, it was impossible to do so anymore. I mean, I think that this, Court, the justices that owe their positions to [00:03:00] their reliability in the eyes of the Federalist Society have been steadily plowing through an agenda.
to repeal and replace the 20th century to repeal the constraints that came into play during the New Deal on rapacious capitalists and to repeal the progress that was made through literally People sacrificing their lives were, you know, just had an anniversary for the two civil worker rights workers in Mississippi, you know, dozens of people lost their lives trying to register to vote.
And that was waved away by this, this faction, what I think is really important to put in focus about them. And when we talk about the immunity case, and I think we hear. Over and over again in the headlines that the Supreme Court immunity to gave the Trump immunity, and I think [00:04:00] only in America does our corporate media miss the real story here, which is if this were happening in Hungary, if it were happening in Turkey.
Right? The story would be that the three justices that Trump appointed, plus two who were implicated in plus one in the insurrection gave him immunity, right? This is what this is classic authoritarian playbook, that is the store. It should be the story today. And it's compounded because of the 116 people who have served as justices of the Supreme Court, only five of them have been confirmed by senators who represented less than half the country.
And those five are Thomas Alito, Gorsuch, Kavanaugh, and Barrett. This is unprecedented in the [00:05:00] court's history, that, and of course, pointed by presidents who didn't win the popular vote, This has been a Federalist Society coup for a dozen years in the making. And You put in Chevron, right? The whole thing.
And I think the other piece that is misconstrued is the idea that this is a judicial power grab because it isn't really a judicial power grab. It's a power grab by the forces behind the Federalist Society. It's the plutocrats and the theocrats, right? It's their agenda that they're doing.
Lisa Graves: Yep. Thanks, Mike. Dahlia, do you have thoughts? And then we'll come, come over to you, Alex.
Dahlia Lithwick: I mean, I think my gloss on what Mike says is, Norm Ornstein and I wrote a piece a couple of weeks ago about the, normalcy bias, about the ways in which we need to, it's the, The fancy language for being frogs in pots. And it's the ways in [00:06:00] which we need to keep reassuring ourselves that systems are holding, or that this is the single greatest democracy in the world.
Or that, this court, even though it's done one shocking thing, seriatim after another for years and years, because it gave us Obergefell one time. this is a court that on balance, cares about, you know, the civil rights and civil liberties of most people. I think there's a thousand stories, including where Mike just ended, which is what happens when you have the electoral college create a minority rule president, what happens when you have a malapportioned Senate create a Senate that then is a minority rule, right?
Re instantiation of the minority rule president's choice, for the court. What happens when that happens over and over and over, but you're so busy saying this is the most flawless democracy in the world that you just sort of normalize and metabolize that that must be what freedom looks like. And so I think what I would [00:07:00] just say is, There was a lot of talk, and I can see that some of it was for me that the thing that was gonna be the breaking mechanism on a runaway Supreme Court, particularly this term, where they took, as we're gonna discuss way too many big tuck ticket cases, I mean cases, they didn't need to take cases like the Tala case that they had no business taking, you know, cases that were jammed at them from the fifth Circuit they took.
Huge, huge cases. And I think we all mollified ourselves, Lisa, by saying, but that's okay because John Roberts, institutionalist, has constructed some kind of breaking mechanism on the all out crazy maganess of it, because he cares about his own reputation. He cares about, you know, the public estimation of the court.
And so there was just a lot of crazy ideas floated by people like me, in some instances that suggested that there was a moderating wing, that Amy Coney Barrett was, was changing, which she did in a few cases, that Brett Kavanaugh wants to serve for 40 more [00:08:00] years, and so he's not going to torch his reputation.
And, and probably at the peak of all that, that John Roberts actually really cares. Really cares that a Supreme Court that has no army and no treasury and no person, no sword and no way to impose its rule on the country other than acquiescence that the court is a court, that he would care enough to moderate something.
And I think the story of this term is John Dobbs. John Roberts, who didn't go all in for, you know, the, the independent legislate, slate, legislature bogusness of last year, who didn't hand a bunch of cases to Donald Trump in 2021 is a full on. Unreconstructed MAGA justice now, and I'm super curious what happened between then and now, but I just think that the notion that there is anyone at the court that in the face of plummeting approval ratings and [00:09:00] plummeting public acceptance of the court as a nonpartisan institution, looked around and said, you know what this court needs to rocket fuel partisanship and also to break democracy.
That's the shocker for me. I probably shouldn't be shocked, but that's not the John Roberts I've been covering since he was seated.
Lisa Graves: I really appreciate that. Before I pass it over to Alex, just to put it out there, you know, I, tried like hell to block John Roberts for the DC circuit back in, the first, term of George W. Bush and I'm writing a book about John Roberts, about the fact that he has been, you know, moving that agenda forward, but as you point out, Dahlia, not until now willing to really remove the mask.
You know, making some nods here and there of, slowing things down while still headed toward the same destination. But I do think that this question of the way we perceive of the court as having no sword, no army. In fact, if we take a look at those Alito comments about how it's you know, contest between these two sides.
They've chosen their side and they're counting on, I think Trump [00:10:00] to be that sword to accomplish the agenda that they, have embraced with this repressive, regressive set of decisions. But let me pass it over to Alex who I know has views about, how we perceive the court, how, as Americans have elevated the court.
And what this court is showing itself to be. So passing it over to my partner here, Alex Aronson.
Alex Aronson: Thanks so much, Lisa. Thanks for having me here. I always learn so much from all of you. And I think what all of your comments, you know, stirring me is, you know, I think what we're dealing with is a full blown paradigm shift from, you know, what was a system of kind of partisan politics, where, you know, you know, didn't didn't work great for everyday people, but, you know, we could, we could have policy disagreements and resolve them at the ballot box and, you know, let the chips fall where they may, and I think what we're dealing with now is a completely different, world, and, as Mike points out, so many of the institutional elite and the media, and I think the lawyer class have failed to see this, this transition.
Particularly as the Republican Party has fallen fully [00:11:00] into the thrall of an aspiring fascist dictator. And if you look back at the history of this court capture program, which, you know, we really think started in earnest with the 1954 decision in Brown versus Board of Education, the creation, really, of originalism as a political cudgel to impeach Earl Warren and reverse the progress of racial integration that that case represented.
You know, the fueling of this agenda by corporate interests in the 70s after the infamous Lewis Powell memo, which was our call to arms to the American business community to really reverse the economic progress of the 20th century. And of course, the galvanization of an electoral base around the Really created artificial goal of overturning Roe versus Wade, which, of course, much like the Coke investment in the Tea Party became a real organic grassroots movement that was that was coming for this prized and cherished freedom.
I think in the face of that, steady attack, you know, fueled by hundreds of millions of dollars, as you have documented, Lisa, and now [00:12:00] backed up by, you know, billions of dollars. democracy interests, the Democratic Party, the elite media, the lawyer class has sort of failed to recognize that these hard earned wins that we needed the courts to protect and achieve in the 20th century were, were deeply vulnerable.
And so what we're seeing now, as I think a really ominous development in the advancement of this agenda, of course, it was fueled by the, Conversion of the Senate in the Trump era into a conveyor belt for extremist judges in the outsourcing or as Don McGahn, the former White House counsel, called it the insourcing to the Federalist Society to the theocratic extremist and billionaire ally, Leonard Leo, of hundreds of federal judicial selections, including these three, you know, critically important Trump Supreme Court elections, which have, together with these two disqualified justices who sat on the immunity case in violation of clear federal law, have now delivered not only a victory to Trump and MAGA, but a death blow to the basic premise of, of checks and balances in this country.
And one of the reasons I think it's really ominous [00:13:00] and, you know, we, Dahlia mentioned sort of what happened with, with, uh, Roberts. We're sort of at a real inflection point here with the, with the election coming this fall. And Lisa, you pointed out that these interests sort of see Donald Trump as a vessel.
You know, Mike has done incredible work to document all the reasons why we shouldn't expect this court to be a bulwark either against Trump and his MAGA 2025 agenda in the foreseeable future, if Trump comes to power, or in fact, to be a bulwark against efforts that we can already see and document that these very interests are.
undertaking on the ground right now to pre fabricate claims of massive election interference in the event of a democratic victory. we're having this conversation a week after the head of the Heritage Foundation invoked the prospect of hot civil war, saying that we're going to have a civil war unless the, and this could be a bloodless civil war unless the left lets it happen.
And so here we are at this moment. And I think what's just critical for folks in positions of power for voters on the ground to understand is that we still have a chance here. You know, I think people are [00:14:00] feeling deep despair. That is very much the product of authoritarianism in action. it's functioning in many of these states.
People in blue states, I think, are living in a little bit of ignorant bliss about the prospects for their own families, for their communities. But we have an opportunity now to reject this court, to push Congress to use the very clear tools and powers it has in the Constitution to constrain it, to pass laws that can be insulated from Supreme Court review, and to give our democracy the chance it has never really had.
So that's the work we're really leading at court accountability and that we're eager to, you know, build movement power behind because that's the only way we see a way through this. We are not going to lawyer our way through this court as we can very clearly see.
Michael Podhorzer: So I think that, especially as we look back, last week was the 4th of July. and I think when Dahlia was talking about, and we all, every, sort of the common understanding of Roberts caring about the credibility of the court, I think the key is [00:15:00] understanding that he cares about the credibility of the court in red America.
That. This is becoming the Supreme Court of Red America, which, to the point Alex was making about the Heritage Foundation statement, they hope to make all of America, right? And that, you know, the people like us tend to look at all of these decisions as having reduced the credibility of the court, which it absolutely has in blue America, but it has actually been increasing the credibility of the court in red America.
After it had declined for some time, and I think the bigger picture that all of the things we're talking about today fit into and goes back to 1776 is that we, in our constitution, we adopted a very strong federalism that has allowed that basically red interest and blue interest to stay the same intact [00:16:00] from bounding with, Section of the country aspiring to an essentially theocratic style of government, and another aspiring to a liberal form of government and the court now reflects the geography in terms of the.
Where the senators who confirmed them come from exactly the same as the House caucus, Republican caucus, the House Senate, the Senate caucus, the electoral college vote for Trump. Trump is the president of red America. This is the Supreme Court of Red America, and we have a House and Senate Republican Caucus that represents Red America.
And it's those cylinders lining up that spell this crisis.
Dahlia Lithwick: you know, you are talking about Still, when you think about Roe v. Wade, still, when you think about sensible gun rules, you know, huge margins of Americans who hate these outcomes. And, when you get a [00:17:00] bump stock ruling, that's like, Oh, I'm, I'm Clarence Thomas.
I'm an expert on guns. Here's some, like, drawings, in my opinion. Well, I will include a couple of like gun lobby, illustrations to show you that these are in fact, different from machine guns. And we just say to ourselves, well, we hate it, but this is the court, you know, that's the thing. And I, I'm always mindful of, Jamie Raskin, who keeps reminding us fall out of love with the court because the court had like a good seven years in there where it was in fact working.
I'm seven is unfair. Let's call it more than seven, where it was really working in fact, to do the work of expanding the vote and making sure that the reconstruction amendments had actual meaning, like that court has always been a fantasy that court has been. A blip in two centuries of a court that was a revanchist, backward looking, hyper conservative institution that put [00:18:00] above all things the interests of, you know, moneyed, white male slave holders.
And so I think part of the problem, and I just want to sort of lift this out, is not that, that this is, Simply a minority rule proposition that is strangling all the ways in which majorities express themselves. But it's also that we, I think on our side, and I don't mean we on this call, but we have been so brainwashed by the notion that the court is a force for justice and good because it gave us Griswold.
It gave us Obergefell. There was one hot second when it was working to create a more perfect democracy. And the idea, just going back to what Mike said, that that court is still in existence after decades. Of zero evidence to that effect is part of the reason our heads are not in the game now, part of the reason I think there is such hesitancy to do the kind of [00:19:00] work that Alex is talking about in terms of structural reforms and, you know, term limits and, transparency and all the things that we would need to do, not four years ago, eight years ago, 16 years ago, but that we are still afraid to talk about.
Right now is a function of having, I always say, for the most secular country, we have the most religiously zealous love of an oracular court. It's built to look like a temple. The justices walk around in robes. They won't let us hear freaking opinion announcements. They won't let us hear opinion announcements.
Why? Because they say so. So to take this. Oracular institution and now try to sort of level down to say it's no different from the other institutions is a really, really hard move for generations of people who somehow think that the court's in it for them.
[00:20:00] Silence.
Alex Aronson: And You know, I think for this critical window of the 20th century, the court did provide that it did its level best.
And I think it did lull us into this idea that we could rely on the judiciary to secure principles like justice.
I think that is, being, you know, shown to be short sighted as the courts and the goodwill we created around them for, for these decades have been exploited by interests that understand, uh, what a powerful force they can be, insulated from scrutiny, insulated from accountability. Insulated from democracy,
Lisa Graves: Next we moved on to the most recent Supreme court ruling Trump versus United States, which we covered in episode five of this podcast with the former president mired in litigation, including attempted election fraud. Trump's lawyers had argued that sitting [00:21:00] presidents have personal immunity for what they do while in office.
As long as those deeds fall within a broad, loosely defined category of, quote, official acts. Basically, they argue that Trump can't be held criminally liable for trying to illegally overturn the 2020 election if he was acting in his official capacity as President of the United States. Their constitutional backing for this was a massive leap and that's being charitable. I'd go so far as to say it was made up from thin air.
it's contrary to common sense, It's contrary to legal precedent.
It's contrary to our constitution's language and the importance of checks and balances to protect our freedom. But last week, the majority faction agreed with Trump chief justice. John Roberts wrote that Trump had presumptive immunity for official acts, which could shield him from not only attempted election fraud.
and his role in the January 6th insurrection, but also for illegal acts he could commit in a potential second term. And most worrying of all, the [00:22:00] decision has endowed any future president, one man or woman, with unprecedented, almost king like powers, to sidestep those checks and balances of our democracy and do what they please.
I'm going to start with you, Dahlia, did you anticipate that the court would go this far? what does it mean for the, criminal prosecutions that are pending? But what does it mean in a bigger sense about the future?
and, uh, You know, other reactions, you know, like the sort of, as you pointed out, I think online, Dahlia, this sort of notion that everyone's just hysterical that was reflected in the opinion, suggesting that the hypotheticals that, Trump's lawyer You know, parried about political assassination, calling that an over, calling that an official act or calling the acts of the president's commander in chief, that those were just, fantastical, claims when, in fact, they were real questions that merit real answers and were in grave danger.
Dahlia Lithwick: Just one gloss on that, Lisa, I just think it's worth at least [00:23:00] noticing that when the Chief Justice called, both the Katonji Brown Jackson and Sonia Sotomayor dissents fear mongering and overreactive, I just want to point out that all of the women on the court disagreed with his broad, broad theory of immunity, including, Amy Coney Barrett, who peeled off, um, on some evidentiary stuff.
the fact that the chief justice, both declined to address these hypotheticals, which as you note, were conceded by John Sauer at oral argument, and then to say like, you're all hysterical. They're there. Go away. After just one last point on this blowing through an opinion, a meticulous opinion by judge Tanya Chotkin, a woman and a three judge panel on the DC circuit, which is.
All women and saying that they acted too quickly, to take this case. Seriously, I just want to point out that I don't see everything through a gender lens, but I think telling a bunch of women that they're hysterical and then [00:24:00] not deigning to answer the actual critiques that they put forth is like.
Peak gaslighting and so beneath John Roberts that it warranted the grumpy piece that I wrote last week. Um, I want to quote Alex Aaronson for one second, which is, I think this is not a problem we are going to lawyer our way out of. And so with all due respect to the 10, 000 MSNBC panels, which included me, By the way, and some of you, about how, if we just pick our way through the magical forest of options left open, we might still get a criminal lawsuit against John Donald Trump.
And we just have to smoosh things out of the official acts into the unofficial acts. And then we have to try to not worry too much about the fact that motive can't be used as evidence and maybe it's the outer perimeter. Like that's lawyer talk. And my suggestion when the opinion came down was like, I just think we cede time to Tim Snyder and Ruth Van Giat.
And as Mike says, this is not an opinion. I really, I know I get paid to do it, but I [00:25:00] really want to spend a lot of time parsing as a lawyer. What I want to hear is what Victor Orban thinks of this, because this is, as Mike says, the playbook. This is the playbook. And so, um, I'm not super interested right now and I, I, with all due respect to all the criminal lawyers who are doing this hard work in the conversation about whether we can, you know, salvage some part of the Jack Smith, uh, prosecution or have a mini trial, you know, in time for the, like, like, great.
Do all those things, but I see this as many layers of abstraction worse than, Oh, this is a thumb on the scale for Donald Trump. This is immunity, not just for Donald Trump, but for, and up to and including, right? Him being allowed to tell his own attorney general, this is now an official act. Go ahead and have a military tribunal for Liz Cheney.
Right. And that's immunized, right? What's immunized is I will now take money to give you a [00:26:00] pardon. That's immunized. Telling Mike Pence or the next vice president, I would like you to put a bunch of fake electors certificates into that's immunized, right? There's nothing that isn't. By some construction going to be made an official act.
So let's be really clear that picking through that seems like work for another day. The work for today is how did we get into a situation where a Supreme Court that has arrogated unto itself, I know we'll talk about Chevron in a minute, the power to kneecap every single regulatory agency in the country at the same time made the president King.
And that was the grabber man. of the Sotomayor dissent. That was the piece that the Chief Justice thought was too hysterical and overwrought to answer. That's the question we have to answer. What do you do when an imperial court creates an imperial president?
Lisa Graves: I agree with you completely, Dahlia, and I mean, I just, I think, I, I agree on the non parsing because what's happened is we have an illegitimate edict. By an [00:27:00] illegitimately constituted court, in my view, a court that is, has proven itself to be corrupted and untrustworthy and the American people get it and we need to talk about it on that level, on the level of power, not on the level of law, which basically sort of further legitimizes it somehow when it's fundamentally illegitimate.
But I promise to go to you next, Alex. So let me pass the baton over.
Alex Aronson: Well, hearing Dalia's peak legal realism is music to my ears, of course. Dalia has always just been able to shine such a clear eyed light on, on these issues. And, you know, I think this is the same dynamic we just discussed around the mythology and trappings of the court as a court, as holy overseers of our constitutional meaning, and this, you know, dismissive, contemptuous Tone that the majority by Chief Justice Roberts took toward the very diligent and rigorous lower court opinions in this case, including a 57 page opinion, which was joined [00:28:00] by a very conservative Republican appointed lawyer on the D.
C. Circuit that thoroughly evaluated these what we all, I think, have consensus view on our frivolous claims of immunity for a former president. And, you know, but the courts, of course, had to make these weighty constitutional questions and to write a opinion for the ages. I think it's important, of course, to, to contrast this with another important constitutional case involving president Trump that they just heard a couple months ago and were able to resolve expeditiously between 25 days for moral argument to opinion in that case out of Colorado that would have disqualified Trump from the ballot there.
which they did not take the same seriousness and, you know, gravitas to, to address. So what's actually going on here? I think it goes back to the frivolity of the claims and what Trump was trying to accomplish here, which was just delay, delay, delay, to ensure that he would not be held accountable for the most serious of the many criminal charges he is being charged with in federal and state courts across the country.
His implication, his, his [00:29:00] direction of the. The federal election subversion effort that Jack Smith is prosecuting him for it and the so called stop the steel movement that just Salido allied himself with by allowing a stop the steel flag to be hung outside his house, his house, and, you know, whatever, this opinion is worth and I think actually it's it's implications, although it's barely worth the paper it was.
published on are very severe and dire. You know, whatever its implications, we know that it's going to help and ensure that Trump will not be held accountable and face trial for these crimes this year. And that, as Mike has pointed out, and I think really important analysis, even if Judge Chutkan does try to hold this trial, They would be on the eve of the election and throw the country into horrendous chaos and give Trump and his allies who have driven false narratives around the weaponization of justice and the politicization of justice, critical ammunition to go after pro democracy interests, to go after prosecutors who are trying to apply the law and ensure that nobody can commit crimes and not be held accountable.
I'll say one thing about [00:30:00] the opinion itself in terms of its staggering and ominous implications for the future. It connects the project 2025 and we'll talk about the case overturning the Chevron precedent soon, which does represent an enormous judicial and corporate power grab. I've had people ask me, well, how does this work?
the court on one hand is taking power away from Congress, taking power away from the executive branch to, issue and implement regulations, but on the other hand, it's issuing, sweeping executive power. This is all a plan, right? When we can see the plan laid out in what the Federalist Society and its backers have been working toward for decades.
And I think there's real reason to fear, even beyond this immunity case, that this majority has sweeping plans to install a sweep massive unitary executive theory. Folks might recall that from the Bush era, when executive theory was used by the Bush administration to justify a disgusting torture program.
But, this, this goal of overturning this, this, this Very old case, Humphrey's executor, which limits [00:31:00] presidential power to meddle with independent agency action, has not been given up by this movement. And there's very strong reason to believe that this majority is, is poised to go even further than it did in this immunity case and really unlock the full throated maximalist version of unitary executive power that Project 2025 contemplates.
Michael Podhorzer: So the, first time I'm going to say is when Delia was talking about all of the commentators at, for not just this, but like parsing everything, right? at some point, right, you have to stop blaming Lucy for stealing the football and start wondering what Charlie Brown's thinking.
Right, that, we're like a dozen years into this. And, you know, they do Shelby and then the civil rights lawyers are saying, well, we can still do this. Maybe we're still right. No, they're just like making it up as they're going right to get the outcome they want. And the more we. Do that kind of rigorous analysis.
The more [00:32:00] we tell people who aren't paying enough attention that this is actually lawyering going right that this isn't just getting to an outcome and I think there's a way we don't appreciate how the world see how we're often giving them credibility, in a way that comes back to bite us.
Right. And the other thing I, I just want to throw in to be a little mischievous here is I think the court is really not in the tank the way everyone talks about for, right? I think that especially the corporate interest behind the Federalist Society. We're more than happy to see him swept off the stage in 2020 because he really isn't who they want doing this.
They want a Paul Ryan. the thing that has flipped is that this time around going to the next administration, we'll have an opportunity to take. Thomas, he'll be 80, Alito will be 78, put, you know, two 35 [00:33:00] year olds in and have a 5 4 majority forever. And for jurists who have spent their entire life trying to overturn the democratic American legal system for this theocratic one, it is sealing their career.
so I think they are at least as much against letting a Democrat have a crack at more judicial nominations as being for MAGA insanity.
Lisa Graves: we discussed the court's decision which upended the Chevron Deference Doctrine, which had instructed federal courts to defer to the expert judgment of government agencies over the statutes they administer. As we laid out in episode four of this series, that doctrine had been a target of corporations and billionaire industrialists, especially petrochemical tycoon Charles Koch.
Coke and his allies attacked the Chevron doctrine in two cases that involve herring fishermen squabbling with the government regulators. over monitoring fees. The cases were called Loper Bright Enterprises versus [00:34:00] Gina Raimondo and Relentless, Inc.
versus Department of Commerce. With Koch's financial backing, these small time disputes swam all the way up to the Supreme Court to threaten one of the core pillars of government rulemaking. in the end, the court sided with the fishermen, or rather Koch and his far right allies, and sunk the Chevron doctrine.
now judges and not experts will have the final say on many regulatory disputes. Even when the text of the law doesn't say one way or another. The case started with the fishing industry, but it will have a major impact on climate action, environmental protections, protections for the health and welfare of our communities, and countless other areas of day to day lives.
And countless other areas of our day to day lives. Dahlia started off the discussion.
Dahlia Lithwick: I would say this, anyone has, Who is surprised at the seriatim unfurling of Jarkissi and, Loper Bright and, ultimately Chevron. [00:35:00] And by the way, you know, I put Rahimi in this category.
I mean, I think every single one of the cases this year that took a sledgehammer to some federal agency, including the good neighbor rule, right?
The EPA, every one of those cases was entirely predictable by the language we were hearing from the justices. Years ago, when you heard justice Alito in the immunity case, just snarling at Michael Dreeben about how the DOJ is full of these deep staters who could indict a ham sandwich.
That fomenting of mistrust in government actors and government agencies and government attorneys of which there are millions with expertise who know how to do stuff and who are very smart and who are trying their very best to make sure that the water is clean and the air is clean and that planes don't crash in the air.
All of that contempt was utterly predictable because as you said, this is a project. a longstanding project, the Steve Bannon dream, [00:36:00] right? To dismantle the regulatory agencies as we know it. So nobody should be surprised in some sense that the capstone for that is Chevron. Nobody should be surprised that instead of doing this agency by agency, case by case, as we've been seeing, making sure the SEC can't do enforcement actions, right?
Making sure that the EPA can't regulate air, making sure last year that we couldn't have the Clean Water Act. We just did it in one go. And that's what Chevron is. And Chevron is all of that contempt for government, for expertise, for serious, sober problem solving of 21st century problems by real people tossed aside to say, you know who knows better?
The difference between nitrous oxide, laughing gas, and nitrogen oxide, you know, ozone pollutant. I do. Neil Gorsuch. Oh wait, that's a bad example. It turns out he doesn't know the difference. But I just think this is more of the same. But the thing that I want to say is that if you are interested in fomenting an [00:37:00] entire culture of deep suspicion toward all government actors, every government lawyer, every action taken by any agency or by any, law enforcement, a really good thing to do is this drip, drip, drip, drip.
Of planting suspicion that nobody knows except you what clean water is, what air pollution is. Nobody knows, but you, what, a virus born, you know, illness is. And what scares me is that those same people are giving us bump stocks. The same people who are saying, do your own research and create your own Kyle Rittenhouse standard of what is, how we enforce.
Rules when government can't be trusted are the same people who gave everybody a gun.
Lisa Graves: Yeah, I mean, you know, one of the things that has been, I'm not sure if I would say crushing because I have been a skeptic, to say the least of, these, right wing appointees, but to have it be revealed that they're really not interested in being judges in a way. I mean, there's the power of judges, but they're really like, you know, Rush Limbaugh's ghost [00:38:00] reanimated in terms of just, or, you know, uh, Q, like, you know, kind of, embracing this QAnon nonsense, with their rhetoric, with their disdain and the contempt that you've described, I mean, it really is, it sort of reveals The truth about how they, you know, which we know from these rulings and more that they are not really acting as judges.
They're just super empowered operatives and activists and, you know, armchair, conspiracy theorists. and that's sad for our country, but it's not just sad because it's actually ruinous in their rulings. And so, let me just flip the order and, and pass it back to you, Mike,
Michael Podhorzer: Sure. so, I mean, taking the opportunity again to go a little darker, the, I think, I think that the nitrous versus nitrogen oxide and it's easy to mock them at, but the idea is not really that they're ever, they're going to regulate. It's that they have routinized the idea of being the veto point for industry when there's a regulation they don't [00:39:00] want, right?
It's not like we're now turning over environmental regulation to the government. them, right? What we're doing is saying that, okay, you go ahead and try to do your regulation EPA. But if Koch Industries thinks it's a little too strict, they go to the court and it gets bumped away.
And I think this will actually have a more subtle effect on these regulations, which is that the regulators will know that for things that have to be Addressed they have to basically get the industry to sign off on whatever they're going to do so that it doesn't come back and get vetoed and it is just really shifted the power and all of the regulatory rulemaking that way, but I think the thing that it really marks.
And this is where I was saying I was going to go darker. Is that really until the 1930s? the purpose of the state was to protect property, the elite against everyone else. And for many decades, we came to understand the state as being there to protect us [00:40:00] from the polluters, from the people who put bad medicine out and all of that.
But that was actually kind of a novel thing in our history. And this is bringing it back to being a judicial system that's there to protect the elite, to protect the property interest, which is why you don't hear the same sort of skepticism from Alito or any of the others about the Justice Department when it's prosecuting regular crime.
When it's looking at the death penalty, when it's looking at the things that keep the rabble in check, right, then they're all like spot on. They never make mistakes. We can't get in the way. Oh, my God, who's to second guess them, Because that's really what's going on is that we had this like half century where we came to believe that the government was acting on our behalf to protect us.
And now it's back to where it was before, which [00:41:00] is to protect the plutocrats.
Alex Aronson: Just to pick up on Mike's articulation of how important this system has been for everyday people in, you know, in America, since, since it really started working for us in the 20th century, across every issue you could possibly think of, the federal government and the regulatory agencies that administer and implement these, these regulations are just a vital importance to our lives.
And one of the reasons why these billionaire interests and Don McGahn, use the court to do this, is because people don't, I think, day to day follow how important this regulatory system is for their lives. And so when you hear Don McGahn, you know, give quotes like the one you mentioned or tell a group of right wing donors that, you know, really there's a coherent plan here where Deregulatory agenda is actually the flip side of the same coin as our judicial selection program.
What you see is the outsourcing of the Republican party and the billionaire interests dirty work because people want and like [00:42:00] these things in their lives. And if Republicans in Congress were to try to take these things away, they would be voted out like bums. it is much easier for Republicans in Congress.
To not do anything about it when the Supreme Court takes these rights and freedoms and important services away from us in action is a lot harder to justify than action, particularly negative action like that. And so I think that dynamic is really important to understand. It's why the court has been such a valuable weapon for these interests who want to advance deeply unpopular goals.
Lisa Graves: next we turned to the two decisions where the court actually sided against the far right plaintiffs. In United States vs. Rahimi, Rahimi had a domestic abuse related restraining order against him to protect his ex girlfriend. Federal law prohibits people with such restraining orders from possessing firearms, but that didn't stop Rahimi from carrying out a string of five shootings before he was finally arrested.
With the help of groups linked to the Federal Society and the National Rifle Association, Rahimi challenged a law that [00:43:00] blocks domestic abusers from keeping guns. Given that an average of about 70 women per month are shot to death by intimate partners, this law has likely saved thousands of lives since it was enacted in 1998.
But the Fifth Circuit Court of Appeals, in a decision led by a Federal Society judge named James Ho. Ruled that this law violated the second amendment and even violent men like Rahimi who assaulted his girlfriend and carried out that shooting spree should be allowed to keep guns. The other case, which we explored in episode one was an attempt to challenge the FDA approval of an abortion pill, Mifepristone. The case was brought by a plaintiff that is an alliance of extremist evangelical groups that created a brand new group in Amarillo, Texas, just so they could bring the case before one notoriously anti abortion U.
S. District Court judge, Matthew Kaczmarek, who was appointed by Donald Trump.
The justices overwhelmingly sided against the plaintiffs in [00:44:00] these cases. The decision was 8 to 1 against Rahimi and 9 for Mipha Pristone.
But in some ways, these were pyrrhic victories because these two cases should never have been heard at all. The arguments brought before the courts had basically no basis or standing in the case of Mipha Pristone. But by giving them credence, This U. S. Supreme Court only served to shift the status quo further to the right.
Michael Podhorzer: Dahlia, you want to jump in on Miffy and, uh, kicking that case and the other and the Idaho case back, to after the election and more.
Dahlia Lithwick: Yeah, I guess I'm going to say what I always say, which is, the Supreme Court so masterfully controls its own docket. You know, this is all sort of Stephen Vladek's material about, you know, the emergency docket and the ways in which it chooses, you know, how to, Kind of write the question in a case which distorts what's happened below, right?
Every piece of this is stage managed by the court. And another piece that is expressly stage managed by the court is that all this comes out the last [00:45:00] two weeks of June. Right? So that it's like, I keep, very, very, um. Undecorously liking it to the girl popping out of the cake where you just can't possibly process all of this stuff because it happens, you know, in a blur of frosting and then it's over and it's July 4th and we've moved on and we'll tune in next June.
So one of the ways in the many egregious ways that we've talked about how badly we cover these decisions and the implications of these decisions. We tend to, and you see all the headlines saying, Supreme Court says that it's okay to use Mifepristone, or Supreme Court says that Idaho doctors can still give emergency abortion care.
That's not what happened. And I just want to be really clear, not getting punched in the neck is not a win. Not getting punched in the neck Is not even a push. And so the vast majority of the Supreme court's docket, and we've only touched on the fifth circuit, but I want to say Rahimi was overreaching, but from the fifth circuit, Miffa Pristone was overreaching from the fifth circuit, like [00:46:00] case after case after case, trying to dismantle the entire CFPB, overreaching from the fifth circuit.
And when we see the court saying, Oh, you know what, that's too far. Here's how to do it next time, right? Just Judge Kaczmarek has already added new plaintiffs who will have standing, to do away with MIFA Prostone in a year or two. But when we say, see the court acting like the grownups in the room, what we forget is the Fifth Circuit and the renegade judges below who are just making stuff up, even if they only win 5 percent of their cases.
They win what the Overton window, like function of having the fifth circuit, do absolutely anything it wants, including saying, we're going to just let Texas have its own, immigration policy. I think we do not understand that those aren't wins when the court either bats them back or when the court says we're only going to bat back 80 percent of them, but on the rest of them, you go do you.
And so that's just the degree to which we're not seeing the big [00:47:00] picture when we do these sort of thumb sucking end of term. Oh, this is the number of six to three. This is the number of five, four. Look at how much agreement. There's so many unanimous opinions, you know, look at that's not the landscape.
And so I just would put Mipha Pristone, huge overreach, slightly curbed. It's coming back. Emtala, Not only huge overreach by the lower courts who just say there's no such thing as a preemption, but the state of Idaho, huge overreach, but then the Supreme Court jumping in to grab a case off the emergency docket that it had no business being in.
It had not percolated through the courts. through the lower courts and then handing down an opinion in which justice Alito is really grumpy because he's all like, wait, we reached out and inappropriately took this case in order to stop abortions people. Like that's what we should be doing now. So I just want to be very, very clear that the court is in no way in charge of this.
The court is on the receiving end of this. And the very last thing I want to say, [00:48:00] because I think it's Mike's point, is this puts the lie to originalism. Like, can we please never again say that Bruin was an originalist decision or that, Dobbs was an originalist decision or that, my God, Anderson, the Colorado case where every historian in the country was like, here's what section three of the 14th amendment means.
They don't do originalism. They do purposivism. They pick and choose not just which history they want, but which doctrine they want and the idea that we all sit here and are like, well, I guess, I guess that's really good history. That's like on us.
Lisa Graves: Another decision we discussed was Alexander versus South Carolina State Conference of the NAACP.
It was a challenge to South Carolina's gerrymandered voting map, which had been drawn to divide and isolate targeted black communities, specifically Gullah Geechee. Republican lawmakers didn't deny that the map was gerrymandered. They admitted it was drawn to give them an unfair advantage, But they argued it wasn't racially gerrymandered, which would have been illegal. their argument was [00:49:00] obviously bogus expert analysis showed how the lines were carefully drawn according to racial voting and polling data In one district, it lifted out the exact portion of black voters needed 17 percent to give Republicans an edge. A panel of three U.
S. District Court judges unanimously agreed. with the NAACP, and yet in a 6 3 ruling, the right wing Supreme Court ruled that yes, this flagrant act of race based voter suppression was perfectly illegal as long as the goal was partisan. Dahlia started off the discussion by explaining how this decision was just another step in in a long term plan to undermine the Voting Rights Act itself.
Dahlia Lithwick: This is just another, opportunity for the court to constrict, the voting rights act. What's left of the voting rights act after Shelby County. And this is the court essentially. Blessing a racial gerrymander while also, really, really saying, they used to say political gerrymanders are kind of gross [00:50:00] in Rucho.
Now they're like, they're awesome. And so possibly our racial gerrymanders. And, uh, the two lessons I would take from the Alexander case are one, this is another example of the court slow walking this case. So that it could not be decided in a timely fashion and the old maps, had to be used. This is the same court that was able to do Anderson, you know, very, very quickly when it wanted to put Trump back on the ballot.
So it's a court that, uh, Only determines when something is an emergency, even when the states are begging, when they deem it to be an emergency. But I think it also goes to, and maybe this tees up what Alex is going to say, in a democracy, the thing you do, if the entire population hates what you're doing.
Is you throttle democracy, and I think that I put this in the long line of cases. That's not just Shelby County. It's not just Rucho. It's not just Brnovich. It's all the cases in which the court fundamentally makes it harder to vote and fundamentally [00:51:00] makes it harder. To effectuate majority will by ways of, you know, legislative change.
So this is in some sense, the tell that the court that can't get its ideas, as Alex said, into the public discourse because they're too toxic, just keeps doing it by saying, we're just going to strangle the ability of the people to support ideas that they like.
Lisa Graves: Yeah, thanks, Talia. And thanks, Alex. I know you have a deep background in organizing to protect voting rights and being a lawyer to protect voting rights among your other skills. And so I want to make sure you had a chance to jump in.
Alex Aronson: Yeah, actually, I'm glad you brought that up before I was in law. I went to law school. I was an organizer trying to. expand access to the franchise for young people for minority communities at the state level, trying to pass election day registration and automatic voter registration laws. And we were confronted in the mid 2000s by dark money interests that were perpetrating.
Voter fraud lies. You know, there was no evidence of voter fraud back then, just as there is not any now. And they were using these scaremongering tactics [00:52:00] to keep people from accessing the franchise. And this speaks to a billionaire funded, anti democratic strategy that we see at play in cases like Alexander.
And all these other cases in the voting rights context into a very dangerous dynamic that the court is advancing, which is, you know, not only delivering for billionaires and theocrats with cases like Loper bright overturning Chevron or overturning Roe versus Wade and Dobbs, but year after year.
Ratcheting back the levers of democratic pushback so that, you know, the will of the people just increasingly cannot be reflected in their voting decisions at the ballot box. You know, one thing I'll say is that we have seen extensive evidence that Leonard Leo and his dark money network are hard at work on the ground right now, laying the foundations for the dismantling of what little remains of the Voting Rights Act.
In Alabama, there's been evidence that Leonard Leo's allies and dark money groups were instrumental in the drawing of racial gerrymanders that the court ultimately did strike down, after [00:53:00] Alabama, you know, defied its order. and, you know, investigative journalism showed how these, these interests were really taking the reins from the Alabama state legislature to create these results.
Similarly, dark money interests are behind the effort to take away the private right of action under section two of the Voting Rights Act, which allows individual plaintiffs when the justice department won't step in to secure voting rights. to, to bring lawsuits to, to secure those rights and freedoms.
I think this is really important for folks to understand, particularly as so many people in Congress, advocacy groups, and others are working to restore voting rights acts. We see in the constitutional doctrine right now, you know, from the case, for example, students for fair admissions, the one that wiped out affirmative action.
In the higher education setting, a principle of the colorblind constitution that will already, we know, make unconstitutional many of the provisions of the existing Voting Rights Act and the future efforts to secure voting rights act voting rights through legislation like the Freedom to Vote Act or the John Lewis [00:54:00] Voting Rights Advancement Act.
So what are we going to do about this? Are we just going to keep walking into this buzzsaw? Or are we going to develop a politics that will allow us to sustain it? These rights in the face of a court that we know is out for us.
Lisa Graves: Thanks, Alex. That leads us right into the lightning round, which is what can we do? What can activists be doing? And also, if you can speak to it, the importance of the 2024 election. So I'm going to start off, with you, Mike, then Alex and Dahlia, I'm going to give you the last word, if that's all right with you,
Michael Podhorzer: I think the first thing we can all do, although it's maybe mentally difficult, is to stop, stop saying the court did this or that, because the court isn't doing it. Right. It is this faction that is doing it. And for people who are not us, what they hear is that it is a corrupt institution, not a project.
That is hijacked it. Right? Every time we want to say, I say on immunity, the [00:55:00] Supreme Court didn't grant immunity, six federal society justices, three of them appointed by Trump, two of them who were caught associating with Stop the Steal decided to give him immunity. Right. If we keep saying that, then we will win the conversations about what to do about this crisis, but every time we begin our sentences with the Supreme court did this, we are saying that it is a credible institution, that the thing that we just have a disagreement with what it did, right.
We have to foreground that because I think among other things, it's It is necessary to get any of the kind of reforms we want enacted because I think that to a great extent they've been parried with the idea that they're just so that we can get policy outcome or that it can become more liberal or something like that rather than That people understand [00:56:00] that the reason all of this is happening is because of a specific crisis that can be addressed by this, and that is not partisan.
And I think the other thing, and I don't claim to be an expert on which of these different ways of doing this is important, but I think another shortcoming, which is really, I think, also associated with not disciplining ourselves to always identify the problem, is That we as a community have a credibility problem, which is that we say the sky is falling and then don't act that way.
Right. We have little solutions or we say, well, let's just do this little thing and regular voters, regular people, if they don't see action or ambitions that are commensurate with the level of crisis we're claiming, then we're quickly written off. And I think that's sort of asymmetry we saw through January 6th, right?
The people who's not all, not the guy with the Viking [00:57:00] hat, maybe, but they were people who actually believed their country was being stolen, right? And that gave them fuel to do it. It gave them fuel to pass all those voter suppression laws and all of that. We make the same claim, except I It's true. And you don't see anything like that kind of energy.
You don't see anything like that kind of action. And so that's what I think we need to do.
Lisa Graves: Thanks, Mike, and that's a perfect lead into Alex on thinking big about what, what must be done. Thanks.
Alex Aronson: So we're coming to this moment after decades through which the court and the politics and power of the court have, I think, been rightly seen as a Republican based issue that was driving Republican votes, that was turning out, you know, Republican voters to the polls largely around the goal of overturning Roe versus Wade.
Having spent five years working in the Senate, up close and personal with a lot of these. Members of Congress, that idea is very much internalized, that this is not something for us to pick fights on, it's not something for us to even talk about if we can avoid it. We're seeing extensive and [00:58:00] consistent evidence that that script has just fundamentally flipped.
A couple things explain that. the, the theft of these Supreme Court seats, seats Mitch McConnell denying Merrick Garland a seat at the end of the 2016 election. The theft of another Supreme Court seat, reversing that principle at the end of the Trump years. Of course, overturning Roe versus Wade, which has driven women to the polls across the country in every election we have had since then.
since the Dobbs decision. And of course now a year of scandal and corruption, showing to the American people week after week how the agenda that this court is driving down our throats that is deeply unpopular is being done at the behest of billionaire interests that have business before this court.
And so when we look at this election, when we think about the voting power that we can muster. We have to recognize that this is our issue now, and we need to tell our members of Congress, the candidates that are running in our districts, anybody we can, that this needs to be a priority, because if it's not, then we'll lose, right?
We're in a kind of a slow bleed moment, and we need an urgent recalibration of our politics around [00:59:00] the judicial power and around the Constitution. We need to reclaim the Constitution and reclaim our court.
Lisa Graves:
Dahlia Lithwick: I think that, I want to marry what Mike said to what Alex said, which is as long as we have had court scandals, I would date it. I mean, you can date it to Shelby County. You can date it to Dobbs. You can date it to Bruin. As long as we've had those scandals. They are treated as like individual outrage episodes, which happen and people are very mad and they say, What can I do?
And then they move on. And I think that we have somehow trained ourselves to have two very unhealthy responses. One is this is shocking. Nothing can be done about it. And two, nobody's doing anything about it. And I just want to say, neither of those things are true. Things can be done. There is no problem we have discussed on this show today that cannot be solved.
Not even just term limits, not even just adding seats to the court, not even imposing enforceable ethics rules against the [01:00:00] justices. I'm talking about. filibuster reform. I'm talking about structural Senate reform, electoral college reform. There's nothing that can't be done to make democracy work democratically.
And that requires saying, Oh, wait, all of those things are really bad. And so I think we have to not just fall out of love with the court as this perfect institution, but fall out of love with the notion that democracy is chugging along perfectly as it should. And we are the freest, happiest people in the world.
And I understand the temptation to say that because it means you can just go to target again, but it's actually not true. And so I think for every single issue that Mike and Alex and I, and you have identified, there are smart people diligently working to fix it. And Alex is right. We're behind. We're decades behind on some of this on prioritizing and messaging the court.
But if anybody says to you, Oh, there's just nothing to be done about the court. We're just in thrall to this juristocracy forever and ever. They're not paying [01:01:00] attention. And so what I want to say, and I, and I agree with Alex, like the time to do this is this second. It's just not even after you go to target it's right now.
And I think if we all take very seriously that there is. A lot of good work in, progress and much of it started post Dobbs by people who came late to this, but understand that it's solvable and then put your oar in and do nothing but think about democracy repair. I know it's not glamorous the way fighting about Biden versus Trump is glamorous.
But this is the stuff of democracy. This is the stuff of de Tocqueville. This is the stuff of the Federalist papers. So like, it's not a spectator sport anymore. There's teams. We got to be on our team and we got to help.
Lisa Graves: I'd like to thank Dahlia Lithwick, Mike Podhorzer, and Alex Aronson for joining us for this really informative round table discussion. The whole team at Courier is so grateful that they lent us their time and expertise The same goes for our guests who have spoken with me throughout [01:02:00] this series. And again, if you have not heard our other episodes, or just need a refresher, you can go back right now and listen in. You won't be disappointed, although you might be a little disheartened. I know I am. Because America should be better and it can be better.
but to wrap this all up with a call to action, a plea to not give up hope, I'll leave you with these final thoughts. My hero, Frederick Douglass once said, Power concedes nothing without demand. It never did, and it never will. While this court has been on this destructive right wing path for decades, more and more people are catching on.
So let's build this movement to restore and expand our freedoms together, to counter and rebuke the authoritarian faction that is issuing these illegitimate rulings rolling back our rights and our freedoms. Let's recognize our power as we the people to help make our world and our country a better place.
The Supreme Court is on the ballot in [01:03:00] 2024. Personally, I'm a voter who is going to vote for people who will stand up to the arrogant and extremist partisan hacks that Republicans put on our nation's highest court. And I hope you'll join me.