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 your thought. You know what this podcast is. 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 the side and says, if you really miss it, you should just call her. It'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 the strip club. We're talking about the Supreme Court. Give me a clip call the.
Past fifty 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.
They should have never happened.
They should be able to 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 Scotus. First up, we have Daily Show supervising producer and writer who happens to be a former attorney juven praying, how you're doing, Jubs, Good to see you.
I'm doing great, Roy, Thank you, Thank you so much.
By the way, for my first appearance of this podcast to give me this trip club intro. I really appreciate that.
Yeah, I'm really sorry that I had a little bit of a melt down there at the top of the show. Love is an illusion, juven never forget that. Next, we have the editor of Scotus 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 Asia Civics test. James Romoser. James, welcome to Bey on the Scenes.
Thank you so much for having me.
Happy to be here and finally joining us. The aco u's legal director and fun fact, he taught both Juben 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 Juben.
I think I gotta get I think I gotta give them both a pluses.
Distinguish, can't distinguish.
My transcript says, I gotta be honest and.
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, I'll start with you, David, you know, and Juben James. You don't feel free to jump in, but be respectful to your professor, right and shut your ass up. Uh. The last Supreme Court session, David, you know, it wrapped up last June, and it was pretty contentious. There was a lot of you know, back and forth on a lot of cases that don't necessary only find their way
to 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 go de session.
It was a brutal term. You know.
President Trump appointed three justices to the Court during his time, and he promised that they would overturn Roe versus 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 the football coach high school football coach had the constitutional right to pray publicly at 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, fifty years of precedent and Dobbs one hundred 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.
Oh yeah, yeah, I missed that one. I missed that one.
So yeah, yeah, so what about that one? Had to had to reverse the precedent on the environment give us.
That constitutionally, it does not have the right to exist. It turns out, yeah, very amazing, amazing.
It turns out the EPA is unconstitutioned. No, they did not rule that the Environmental Protection Agency is unconstitutional, but they did rule 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 poessentially 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 moribund 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. There's a year. I would say, how does all of this like not get the same level of public attention or has it been getting it 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 Dobs 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. But some of these other cases about religion, about climate change, and that 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 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 clay 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 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 Row versus Wade, I think, you know, a hodest Court would say, well, let's not you know, make number one on the agenda overturning Roe versus Way, because then it looks like we're just doing the president's bidding.
We're not acting like judges. Uh.
And so you know, I think most people predicted that the Court would not overturn Roe versus Way. It would maybe you know, limited at the edges. But boy, as soon as you you know, we we we heard the argument in that case, it was clear they were they were going for it, and they have not slowed down, as as James indicated in the cases that they're going to hear this term.
So with Juveen on the show, now, I don't know, you know how he was as a student there with you, David, but well they.
Said a plus. So I think we can assume that's accurate. And in every respect, I don't think we needed to We don't need to take any further into he.
Made He made a great He made a great joke in every class.
You know, I wasn't trying to I was just trying to answer the questions.
Unfortunately, Juben is what I believe to be one of the emotional col in the writer's wing in that as a writer on the daily shows, You've been, 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 You've been somehow is mastered with the art of feeling empathy within the story and making sure that that heart is honored within the piece in addition to the comedy, so like, so's you been?
Like?
What are 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 in sneakers because nobody told me that I needed kayak shoes and I was wearing a good as Anyway, it.
Was funny though, right, it was funny on the back it was a very.
Good piece when you and Trevor and the rest of the writing team were reacting to Roe v Wade in 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 time 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 when you were saying earlier, you really just have to channel all the jokes through the emotions. 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 with the abortion, with the leak of the job decision, and eventually the decision itself was you know, especially with a lot of the writers who are 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 and Mansion 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 does Susan Collins, why she never tricked into doing anything good?
It seems like the only people on the planet who didn't realize what was happening would Joe Manchin and Susan Collins, who now say that they were tricked, tricked, I tell you, by these judges. And by the way, why does Susan Collins never get tricked into improving healthcare or solving climate change?
Huh?
Yeah, she's never like, oh damn it, I accidentally canceled student loan debt.
Get it together, silz.
And because people don't come to you know, a comedy show, you know, looking to not laugh if you are not providing those jokes, then you are not You're just opining, and you can go anywhere to find opinions. That's the challenge of comedy writing is it's hindly that emotion into jokes that resonate with those feelings.
And I think, you know, especially it helps with you.
We had we had this delight 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 her while being very clear what she's 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 sam Alito and anybody who tells us
what women can do with their bodies. That kind of releases that and there's a there's a rhythm to this and a music to it that you need to have and you can only have that by going through the emotions that you're feeling.
The real weather event is happening over at the Supreme 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 twats. So that's the weather.
Back to you, Trevor, I think, uh, thank thank you, thank you very much, Daisy.
But clearly that wasn't about the weather.
I no, no, it wasn't sam Alito and anyone else who tells a woman what to do with their own body.
Here's a question for the three of you, what changed within this within the ideology of the Supreme Court. Because the thing is that, you know, the Court since the seventies 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, Judge, 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 Dale 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 ideologic, ideological positions with the Republican parties, policy preferences, and the legal views of the federal society. And there
are many reasons for that. There's been, you know, 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 to the ranks and get vetted and become the top candidates for justice lots 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 our you know, 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 you know, the end of the Obama administration, essentially every judge, every federal judge, had to be approved by sixty senators, which meant that you had to 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 for.
Lower federal court judges this but the Republicans got rid of it for the Supreme Court. Once you do that, you got fifty 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.
That under Trump, I just want to make sure we make that clear.
Yeah, for Supreme Court justices. But but 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 that led Harry to say, we're going to get rid of it for for for district court and Court of Appeals judges, not for the
Supreme Court. But then McConnell got rid of it for the Supreme Court.
You know, it actually is interesting to me as as the the the idea that the Supreme Court and that the legal system in general has always been just an extension of politics by other means. It's always been like a critique of the left. But I feel like I'm thinking about this, but something used to you said earlier, David, that it feels like this idea that that the courts are just simply another part of the 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 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 twenty thirty 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 into the 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 there.
It's it's partly that you know, I do think still that the ideal is important and that a lot of judges and including some justices uphold this ideal, which is that you know, they're not partisan acts. They're supposed to actually apply the law. They're supposed to be guided by the law. There they are, they are not allowed to do as members of Congress can just 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 twenty five percent, which is probably above Congress, but it is the lowest the Supreme Court approval rating has been. I believe, you know, 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 run for reelection, 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 fifty 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 difference that it would.
Otherwise be due.
And that's 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 they're they're 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 barbershops, Scotus. This is just in a side James.
You got the Scotus 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 like we got Court TV and we'd be watching all these state and local cases. We don't need that shit. The Supreme Court needs a camera there so we can see this shit happening and unfolding in real time.
Be nice.
I could not agree more. Todasblog has been advocating for a greater transparency for quite a while. I don't think it's gonna happen. The justices have long been resistant to
any cameras. They don't even allow photography, never minds 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 it arguments, and I think you know, it was actually like 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 get video in there.
Yeah, yeah, well love the transparency. As you took a lot of political science classes, and you know, you know, in a poly science class and a government class, we learned there are three branches of government there's a legislative branch, there's the executive branch. Judge judy bran, excuse me, the judicial branch. I thought the judicial branch had some judy More and more it does.
It's going to be next nominee if he wins re election.
Yeah, it be known as a judge judy branch.
She'd have to take a major pay cut to move to.
I don't know what to do it.
Very conversation 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 as you've been 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 that's not something most people know about. But you also have you know, the judiciator, the execuary, all that kind of stuff that's a lot more real than the stuff you learn in you know, in elementary school.
A public schools, thank you shout out, yeah.
You're not gonna doot that.
No.
I mean, that's 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 law making power just by virtue of being able to interpret the law and thereby changing who app 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 it's more active in other areas. I do think you could argue, for example, the war in court was much more in the realm of active lawmaking with respective criminal justice over the sixties, and we are now in a different era where the Court is much more active with respect to issues 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 to see.
If David James agree with me, But it feels like that tension between judiciary that wants to that that cannot help, but create law just by interpreting law is one that always exists, and it's just a matter of like wish justice feel comfortable using the power in what area.
I think that's right.
Although, you know, one of the key things about being a judge, and 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 presents and you have to try to make sense of them in a consistent way unless you decide to overturn those prior presses.
And when you overturn those prior presents, 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 disadvantage groups.
So the war in court, 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 charged in criminal cases, make sure they have a fair, fair process. And like what the arguments now are, the ego protection clause blocks state and private schools from using a firmative action to try to lift disadvantage groups up and to create integrated and diverse communities.
They're arguing that the Indian Child Welfare Act, which is a law that Congress passed to try to keep tribal families together, it violates the ego protection Clause, and therefore Congress can't seek to protect Native American kids by singling them out.
In a case called three zero.
Three Creative, 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 UH 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 as a barrier to other branches protecting disadvantaged groups.
Can we course correct this at all, Like, is there a way for the court to relegitimize itself or is this just the way it's going to be going forward when it comes to issues like president it's president now officially, we just basically making new rules at this point, right.
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 curtailling 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 our or bust interpretation 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 jurisprudens lately as expanding people's religious rights. And yes, you know those rights do you
come up against other interests. I think it's maybe a little simplistic to just say, like, oh, the War On 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 there are different stakes. And similarly, with regard to precedents, you know, definite is true that the current Court is overturning a lot of president and quite
aggressively and quickly. But again, the Supreme Court has always done that. Again, the War and Court overturned a lot of President Brown versus Board of Education, one of the most iconic decisions in Supreme Court history overturned precedent. And let's not pretend that you know, if you know Kamala Harris, you know is elected to 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 president and re ensrine 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. Now you asked about sort of ways to create more accountability, and I think there are some things
that Congress could do. They could certainly expand this size to the Supreme Court. There are proposals to enact term limits on the justices, which would ensure that each president gets to a point like sort of the same number of justices, and I 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 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 regard to expanding the court versus term limits, should we do term limits? James and Juben, Should we expand Supreme Court? Or what are some other ways that we can return to 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 public opinion for judiciary, I think that would go a long way towards at least allowing there to be a little less pressure on the system in other elections where 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 at least, you know, pull a little bit of
the venom out of that area. And I think that's by itself a good reason to 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 where you have these like bizarre imbalances where some persons get to a point in lots, 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
or so, maybe step down? Or basically how they hounded Briar 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, how you know, to have this political calculation of when should I retire or or you know, how long can I you know, should I just like keep pumping the vitamin so I can last past this particular
president's term. So I think that's 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 vote in justice who might you know, modify it or overturn it.
It is it is striking what you were saying there about the logical decision, because I do feel like, again this goes to my sense that this court is just openly political.
Now.
Was reading just as 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 bring up and wanted to
just complain about. And if you are able to make unaccountable decisions democratically, you should The whole entirely of opinion is that you should have your reasoning made very clear.
And if it is getting to the point now where the justices 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 towards the situation where nobody is going to respect the court, regardless of their of you know, whether it's a conservative court or liberal court. And I think that's the real poison in terms of the court 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 and 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 early part of the twentieth 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's 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 war in Court. The war in 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 fifty percent of this country enjoyed for fifty 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 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 you know, protest, you know, 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 it's approval rating is twenty five percent, they're already you know, they've gotten the message in the sense of their 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 legitiacy 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 legitimate ublicity up to the individual justices, That it's better to trust them to kind of like understand when they've gone over their skis, or do you think there are any structural changes that might operate, might operate better and take that decision making out of the hands of their you know, their own like savviness 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 to the court, hey, when we're doing something wrong, because no one was talking about that for a long time. Now everyone's talking about it, right, So that in and of itself sends a message, you know, of those reforms, I am. I think the term limits one makes a lot more sense 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 made narrow, incremental arguments, because that's the way the
law developed in incremental, narrow steps. Now you're seeing ads 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 get be bound by what happened in seventeen eighty nine and ignore.
The fact that two hundred years of history has come in between.
And you know they could do that because they've shown in cases like the religion cases, the gun cases and the and 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 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 possibly doubled down and they doubled down this term on equality and deny you know, 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 ready 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 matter of fact, I just need a break right now because you've made me so frustrated. After the break, we're gonna bring it home and we're gonna see if the three of you can say anything nice about Scotus 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 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 ropes.
I don't think y'all are gonna do it. This is beyond the scenes. Whoope, right back, Oh my lord, beyond the scenes, we have been talking about the Supreme Court at the United States and all of the odd and controversial and contradictory decisions they've been making. The strip your lulls of before to 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 scotis this term that also live under that umbrella of attacking equality? I know at the state level, there's been a lot of gerrymandering issues. There's also been a lot of you know, equality cases in terms of denying same sex couples 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 commodations laws, and striking down the Indian.
Child Welfare Act.
But there are two big cases involving essentially jerrymandering. One involving racial gerrymandering by your home state, I guess of Alabama. Where are twenty seven percent of the population is African American, but only one of seven congressional districts do African Americans having a meaningful chance to elect a candidate of their choice and coincidence, and we challenge 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 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've 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 the Republican majority in North Carolina drew a congressional map that is skewed, skewed heavily towards favoring Republicans for Democrats, far in excess of their actual percentage of of voters, and the North Carolina Supreme Court said that's unconstitutioned onto 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 been apothosis a hyponsin exactly because it hasn't gone to a theory yet.
But they hope wish will think, wish thought, But they've.
Been voked 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 strained by state courts, even where 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 of of many branches of our government and institutions in our society to 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 they?
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's a nice thing. That is a good thing, right. They cannot call out the troops. They cannot.
They got a bunch of fences.
Though they got some law clerks too, don't forget about that.
Yeah, they're very very those clerks. But you know that, so they can't.
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, and that is an important, important constraint on their power. What this court is 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 unconstrained altogether. And I don't think we've seen that yet.
James, what are you noticing over at scotus blog about how Americans are learning and interacting with all of 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 active? Are they more connected to Wait a minute, what the hell is going on up there in DC?
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.
It's you don't have to be a lawyer to understand that the constitutional rights 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 concealed weapons in public. So, you know, the stakes are so clear, and people are you know, you know, obviously rightfully concerned about these stakes.
And see, we're seeing a lot of engagement, not just you know, on scotusplag 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 TikTok 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 watched that TikTok account a year or two ago, I was like kind of skeptical.
I was like, really, it is the Supreme Court, you know, a doctrine on on TikTok, 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.
What have three things happened at the Supreme Court today? Orders two oral arguments, and DOJ filed its opposition to Trump in the mar A Lago documents fight. Here is a quick explainer of all of the above. Grab your negroni spagliato with prosecco in it, and let's go.
I think there really is an appetite for you know, understand for civil's education 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 come to conquer the worlds of TikTok and basic late night cable variety shows.
You know, there's a lot of pride to be had.
You got to go where the power is right.
Yes, is the Bill, Bill Parcells, Bill Belichick coaching tree just greatness? So as we as we bring it 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 and 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 your.
Shuman well you know, Roy, I'm hearing a lot of bitching from you about the justices and how you.
Can't they got to do something in Congress.
But why don't you quick complaining and be a Supreme Court justice yourself?
Huh?
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. Yeah, get myself together.
It'll snowballs from there, man.
David. Outside of helping youve and write jokes on a daily show, what can people do, if anything, to change the lack of accountability not only within the Court, but you know, what can we do to help influence Congress as well, to try and make the court something that are a little bit nicer.
The answer, you know, will probably not be a surprise, but it's vote right. It is vote vote like your rights depend on it. That is what will 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 you know, even prosecutors can so
and all of them people are up for election. So, you know, the thing that gives me hope is that, 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 for the most disadvantage in
this country, stand up and speak out. And what gives me hope is that we are doing that. You know, from the from the Women's March, when when when Trump was inaugurated, to the Black Lives Matter of 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 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 Courton, but we got at least twenty different boxes of cereal. And when it's a long day, I have myself a nice three
PM bowl of cereal and that's my cigarette. You know, when it comes to just being stressed, I just sit in our little cafe we have and that's how I relax. James, how do you, person who runs scotus blog 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 routine? What
is your apple jacks? What is your bowl of apple jacks?
James?
You know what I wish I had some apologize. 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 colla sing. 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 DC, the National Gallery, the Phillips Collection. I really love looking at, like, you know, twentieth 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 of 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.
But I don't know, jus, 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 tell you.
That's how I that's how I get away from from all this worry about the future.
Man.
I just look at my kids in the eye, and I just look at them and their faces, and they sneeze in my face and give me a cold and then I don't have to worry about Supreme Court anymore because I I'm trying to get over a cold.
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 watched the Daily Show.
That's the correct answer. This was this is 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, guys, thank you so much.
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