A Supreme Court Term Like No Other
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Speaker 2: So long as we do nothing. This is the future we can expect.
Speaker 3: If you read in the footnotes and between the lines and some of these decisions that we just got in the end of this term. You do see that the court cares about the public, but it’s not today’s public. It’s the public of 1791.
Speaker 4: I want to know, like what you think the Democrats might possibly do that would put this court’s exercise of raw and unreasonable power in serious jeopardy.
Dahlia Lithwick: Hi and welcome to Amicus. This is Slate’s podcast about the courts and the Supreme Court and the rule of law. I am Dahlia Lithwick, and that’s my beat here at Slate. And this show is our annual term ending breakfast table episode. That means it’s a look at the 2021 term that just wrapped up last week, but will reverberate on through the summer throughout millions of lives and for the foreseeable future. Slate Plus members, this week’s roundup is all happening in the main show. No bonus segment necessary, but we are so grateful for the support you have given this show this term.
Dahlia Lithwick: So sometimes as a term ends, things grow very quiet in the first week of July, but not this year. The protests that are happening outside of the homes of Supreme Court justices rage on the marshal. The court has asked Maryland and Virginia officials to enforce their state’s anti picketing laws. We are hearing reports around the country of new physician guidance that’s being developed about how long one has to wait to terminate an ectopic pregnancy. Evidently, the mother has to be crashing. A ten year old rape victim in Ohio had to be moved to Indiana for an abortion last week. And a mass shooting devastated the 4th of July parade in Highland Park, Illinois, on Monday.
Dahlia Lithwick: As Justice Alito’s concurrence in the Bruen case, the gun case continued to ring in our ears. What, he asked, Do mass shootings have to do with expanding gun rights? So this year, our breakfast table is going to attempt to not only chew on the cases that have come down, but on what it all means for an institution that gives every single sign that it has only just begun and that it really doesn’t care what it unleashes on the public, and it doesn’t really care what the public feels about all that.
Dahlia Lithwick: Joining me to wrap up this term is Slate’s own Mark Joseph Stern, who covers the courts and the law for Slate. Hi, Mark.
Speaker 4: Hi, Dahlia.
Dahlia Lithwick: Also joining us is Professor Catherine Franke. She is the James L professor of law at Columbia University, director of the Center for Gender and Sexuality Law and Faculty, director of their Law Rights and Religion Project. She’s also the author of Repair Redeeming the Promise of Abolition. Welcome, Catherine.
Speaker 3: Wonderful to see you, Dahlia.
Dahlia Lithwick: And our newbie this year. Somebody we’ve been dying to have on the show is Professor Nico Booy. He is the Louis Brandeis professor of law at Harvard Law School. He is a historian who teaches federal constitutional law, state constitutional law and local government law. His research focuses on critical legal histories of democracy in the United States. And I should note he’s a brand new dad. Thank you all so much for being here.
Speaker 2: Thanks so much for having me.
Dahlia Lithwick: And thank you all for being here on a week. That hopes to be an off week at the end of the term, but is proving to be kind of hopping. So I want to start with what’s maybe too obvious a question. Am I correct that this is just a term like no other, certainly in modern Supreme Court history, that a term that generally might have had, I don’t know, two or three blockbuster cases on the last day of the term somehow became eight cases. And because there’s so very much of it and so many cases that reversed course on decades of established law, there’s a lot of people who can’t quite process the enormity of what just happened. And maybe, Catherine, we can start with you.
Speaker 3: Well, it’s interesting that just this week we celebrated July 4th and the Declaration of Independence, etc., and it feels like the court is doing two things at once, taking us back to the 18th century in terms of understanding what the Constitution means and doing so so aggressively. These decisions not only were losses for progressive or even liberal people or people who believe in democratic governance, but they were colossal losses.
Speaker 3: And we see a muscular conservatism with this new, emboldened supermajority on the court that I think will have lasting implications, not just for the court’s interpretation of the Constitution, but for the very idea of the Supreme Court. You know, many people feel that they have really overreached and overreached in ways which are deeply ideological and political, not in ways that have a kind of special thing that the Supreme Court is supposed to do, which is to interpret the Constitution consistently over time.
Dahlia Lithwick: And Nico, I want you to answer the same question with the gloss that I do feel like you get a certain amount of I told you so privileges because you’ve been telling us for quite some time that this is precisely what the court would and could do, and that for a lot of folks who woke up in the last weeks and said, wait, what? The Court can, you know, contravene 80% public opinion on guns and abortion? That can’t be right. This probably is cold comfort to be able to say, I told you so, but if you’d like to, now’s your moment.
Speaker 2: No, I don’t want to say I told you so, because I don’t think it has happened yet. The court’s current six three majority, I think, is only getting started. And getting started can mean a couple of different things. So as far as the court’s history is concerned, I think absolutely the role that the Supreme Court has played historically and American law has been to protect property interests from regulation, to protect large and wealthy corporations, to ensure that white voters are not, quote unquote, displaced by voters of color or women or anyone else who wants enfranchised might represent some sort of cultural threat. And while there was a notable 30 year period after 1937, when the court seemed to repudiate some of those historical commitments, I think what we’re seeing is basically that 30 year period was an interruption to a much larger trend.
Speaker 2: And I think one important thing to emphasize is this Supreme Court has not had a Democratic appointed majority on it since 1969. So before the moon landing. So since 1970, a majority of the justices on the court have been appointed by Republican presidents. And over time, litigants have been trying to figure out, well, what can we do with the current majority on the court? What can we get away with? And you see the sorts of questions that the court considers change over the past 50 years.
Speaker 2: So 50 years ago, the sorts of questions the court was considering was like, does the 14th Amendment outlaw? The Senate is the Senate compatible with equal protection? Or should we continue to displace litigants whose rights are violated withstanding or should be abandoned standing doctrine altogether? Do whales and trees have rights to sue? These are the sorts of questions the court is considering to protect environmental justice, protect reproductive justice.
Speaker 2: And over the past 50 years, the questions have just become more and more conservative and the court has become more and more conservative. And what counts as a moderate justice has become more and more conservative since 1970. And so I think what’s new about this term relative to the past 50 years is just that the court has accelerated in a way that makes it seem as though the previous 50 years were 50 years of moderation, as opposed to a pretty consistent push in a very conservative direction.
Dahlia Lithwick: And Mark, you really do get to say, I told you so, because Nico reminded us right before we came on that this breakfast table last year involved you warning of a Mad Max smoking apocalypse scenario. I wonder if you can answer. And this is a slightly amorphous take on the question I just asked our other two guests.
Dahlia Lithwick: But one of the things that I think Nico flicked at this just now as well we haven’t quite integrated is that the court is signaling that this is by no means an outlier, that this is, you know, stomp your foot on the gas pedal. We are all systems go. And I wonder for people like you and I, who for years have been writing the court cares what the public thinks. They triangulate against public opinion. They’re careful not to get too far out of their skis because there are repercussions. What does it signal when you get a Justice Alito or Justice Thomas just saying, don’t care, don’t care and don’t care?
Speaker 4: It’s very disorienting. And I think of it as an experiment because for most of modern history, there has been at least one swing justice who had a finger on the pulse of public opinion. Lewis Powell. Sandra Day O’Connor. Anthony Kennedy. Sometimes, not always. And now, of course, that’s gone. Chief Justice Roberts sort of filled that role for a couple of years. But now Brett Kavanaugh is the median justice, which is just terrifying words coming out of my mouth. And Chief Justice John Roberts is the fourth most liberal, as you and I have discussed, which doesn’t mean he’s liberal, but the five justice ultra conservative majority clearly does not care what the public thinks of its rulings.
Speaker 4: Now, that doesn’t mean they don’t care what the public thinks of them. I think that Brett Kavanaugh has a huge ego and wants the public to like him. I think that Amy Coney Barrett wants to be thought of as an intellectual and a professor type who is just grappling so intensely with the issues. She asks these arcane and esoteric questions at oral arguments that focus on some random, obscure part of the case that makes you think, Wow, she’s a genius. She’s found this really important little tidbit that she’s going to extract and use to find a middle ground. And then she completely ignores it and the final decision blows past it. She was just performing. So I think that Kavanaugh on Barrett have these egos, but at the end of the day, they will do what they want without concern about public backlash. And the simplest explanation why is because there’s nothing the public can do about the court.
Speaker 4: Now, Nico’s going to tell me I’m wrong, and I’m going to really enjoy hearing it because I want to be wrong. But my own view is that it’s extremely unlikely that Democrats will exercise their political power in a way that reins in the Supreme Court anytime soon. And so we’re going to learn what happens when there is no Powell or O’Connor or Kennedy, and the court just goes entirely off the rails and veers sharply to the right away from public opinion without any semblance of doubt or any apology, and just decides to go full speed ahead on a different track that most Americans are appalled by, or at least very scared of. We don’t know where this will go, but it seems like the ball is in the Supreme Court’s court. And, you know, if Congress isn’t going to do anything, if the president is going to do anything, they’re just going to push this baby as far as they possibly. And until it blows up figuratively.
Dahlia Lithwick: It’s interesting because Mark and I, I think both took the position that when SBA was moved from the shadow docket to the merits docket, it was a signal that a massive public outcry had evinced that there is some capacity for shame or at least some capacity for managing optics. I think we over read that signal.
Dahlia Lithwick: But Niko, I want to give you Mark has thrown down the gauntlet in his first round here. And I want to give you an opportunity, because one of the reasons I so wanted to talk to you for this show is that you think about the structural institution as part of government. And you have been warning us, you were warning the Biden commission to stop thinking of judicial review as this powerful, magical uniform that helps act as a minoritarian check on reckless majorities. And you’ve been saying this is not what the court as you said, there were seven good minutes where the court did that in the interest of protecting civil liberties, but not its historic function.
Dahlia Lithwick: And I do want you to answer, Mark, but I also want you to tell me what the answer is to the question that I’ve had leveled at me, which is you just don’t like the outcomes. This is not a structural critique. You were perfectly happy with Windsor. You were perfectly happy with Roe in Obergefell. So you’re just a hypocrite. You’re fine with the court acting as a minoritarian check as long as it’s your civil liberties that are being protected. And I wonder what’s the formal smart Nico answer to that question.
Speaker 2: I think that there is a structural response to that, but I also think that it’s important to keep our perspective on what is actually happening. So what role is the court currently playing in American government and American politics? And I don’t want to lose sight of that because from a external perspective, a term like this seems pretty clear what’s going on. So in 2020, the national GOP, in preparation for Donald Trump’s campaign, it had no new national platform. It just took the 2016 platform and part. That was just because of the influence of candidate Trump, but in part it was because the GOP can effectively enact its entire domestic policy agenda through unrestrained state legislatures and red states and unrestrained federal courts in blue states.
Speaker 2: So the Republican Party has, to its credit, spent the past 30 years identifying these two institutions, state legislatures and federal courts as important sources of power. And they have taken over these two institutions. So most states at this point are under one party control. You know, the governor’s office in both houses of the legislature, the federal courts, you know, there’s currently a63 conservative majority on the court that doesn’t look like it’s going anywhere anytime soon. And so, in theory, Congress or federal agencies can threaten this dominance. So Congress could, for example, enact a law that codifies ROE or a much better version of ROE and says here is the new national standard for reproductive justice. But so long as the Republican Party controls either in the House or 40 senators or the presidency, it just needs one of those three veto points. Congress can’t do anything new.
Speaker 2: And in theory, there are existing federal laws like the Voting Rights Act and the Civil Rights Act that would prevent state legislatures from doing things. But this Supreme Court is taking care of those laws by either invalidating them or interpreting them so absurdly, narrowly that they have no effect and executive agencies can’t enforce them.
Speaker 2: So the summary of the role of the court as currently playing is removing federal restrictions on red state legislatures and imposing federal restrictions on blue state legislatures. And while I think that that may just speak to the court’s role in 2022, what’s I think really important is that this is an institutional role that the court has played over time. The court has always been this dynamic source of allocating power between different institutions in the American federalism structure. And so we, as the American people, have to decide when it comes to these really important constitutional questions, not even constitutional questions. It’s really important questions like what should reproductive justice look like in this country? What should our country’s response to climate change look like? What should we do about these massacres every day that are preventing people from going outside or to school with fear?
Speaker 2: And one answer is, well, we should rely on these six people who were appointed by presidents with the goal of imposing a policy agenda, but who are not accountable to the public, who write opinion saying we are not accountable to public opinion, as Justice Alito just did in the Dobbs case, who specifically say, We do not care what you think about us. That’s one answer for who should resolve these really important question.
Speaker 2: And another answer is our elected officials. We should have a national legislature that’s capable of enacting laws. We should remove the structural barriers that prevent Congress from enacting laws and responding to these pressing policy challenges. Because right now we have such an inert Congress that the only branch of the federal government that’s acting are the federal courts and executive agencies. And what opinions like West Virginia versus EPA this time suggest is that federal courts will not allow executive agencies to do their own thing. And so long as we have this current structure where we just say whatever the Supreme Court says goes, we’re going to continue to live in a system in which the most important questions facing all of us are decided by these six people.
Dahlia Lithwick: And Catherine, I think one of the reasons I was so desperate to have you back is that you have been warning for a long time and you certainly warned on this show after Dobbs was argued that underneath this vision of rights and justice and equality lurks a fundamentally faith driven version of America. And it’s a fundamentally pretty narrow, faith driven version of America. And I wonder if you can sort of layer over what we’ve just heard.
Dahlia Lithwick: There has been a seismic change this term in how we think about religious liberty, how we think about the establishment clause. It shoots through everything that happened in Dobbs, whether we talk about it or not. And I think that’s another big, big change that a not clear to me folks have entirely clocked. The degree to which this is seismic. And, B, I don’t think we have a comfortable vocabulary for talking about it, but I know you do.
Speaker 3: Well, you can always depend on Justice Thomas to say the quiet part out loud. And I think it’s interesting to read the Dobbs case, the decision in the abortion case right next to the Bruen case, the gun control case that the court decided right around the same time as Dobbs. And part of what Justice Thomas in Bruyn, the gun case, exclaims, is that gun rights or the right to bear arms is not a second class. Right? It has to be treated as a first class.
Speaker 3: Right. And this is what the court has been building over the last several terms is a pretty novel and historically unprecedented approach to the bright secured in the Constitution, which is that there are certain rights which are first class rights or top tier rights and other rights, which, if they exist at all, are really lower level, less important rights.
Speaker 3: So religious liberty, guns, property interests, as Nico referenced earlier, sort of, you know, traditional masculine rights, I would say and I’ll say a little bit more in a moment about the sort of race and gender background to all of this. Those are first class rights that all other rights have to surrender when they come face to face with gun rights, religious liberty, property rights. And so the Bruen case offers for us the gun control case, a portrayal of white male vulnerability in a way that needs to be protected by top tier rights like religious liberty.
Speaker 3: We also have the image of Joseph Kennedy kneeling at the end of football games and his school, his public school in Washington. He’s just a good guy who’s got God on his side. He’s not offending anybody, but they went after him. The story the court tells about the affront to his religious liberty interests and his faith portray him as a desperately vulnerable man of faith who was a wonderful guy and football coach.
Speaker 3: And then in the gun control case, we get this idea of enormous danger that works out there. The court describes the world as crime ridden and dangerous. And we need to men really need to win bear arms. White men do certainly to protect themselves from those dangers. So we’ve seen a kind of layering, particularly the end of this term, of the vulnerability of women and other people who could be pregnant, seemingly invisible to the Constitution.
Speaker 3: And the vulnerability of white men being hyper visible to the Constitution and gun rights and religious liberties are going to come to the rescue.
Speaker 3: This kind of tearing of rights is something new, and it’s certainly not something that the framers, even if that was where we wanted to anchor the meaning of these rights, had in mind, I think, in creating an ecology of rights among all of the rights that are secured in the Constitution, in ways that doesn’t elevate any other over any others.
Dahlia Lithwick: I think what you’ve said is such an elegant formulation of two things that we’ve talked about so much on this show, which is, one, there are no tests here. We kick the legs out of Heller in the Bruin case, we kick the legs out of the lemon test, which was the long standing establishment clause test. We kick the legs out of the undue burden test and everything. That was the Casey Roe progeny. And we’re in a test that I guess is called history, and I guess it’s called Gluck’s burg sometimes, but it is entirely feelings ball. It is who the justices have solicitude that then drives whatever the test is.
Dahlia Lithwick: And I also think it ropes in something that Mark and I wrote about last. That I think is important, which is the justices have such the majority justices visible contempt for state gun licensing authorities for school officials who are trying to construct policies, such contempt for public health officials who were trying to respond to a lethal pandemic. All of these nameless, faceless bureaucrats in the construction of so much of, you know, the COVID shadow docket cases.
Dahlia Lithwick: But then some of the cases you’ve just mentioned, Catherine, are about kind of like this yucky, middle managing, pencil pushing bureaucracy that gets in the way of liberty. And I think once you’ve set it up that way, you’re not just setting up, as you say, this solicitude for whoever the justices identify with, but a really very frightening layer of vigilantism that says you do what you think you need to do. If you need to pray on the football field, you do that. And it feels as though that’s what’s coming. Nico, am I overreacting?
Speaker 2: No, I don’t think so. And to be honest, I think the people who the justices have shown the most contempt for are the public. So Justice Alito’s opinion and the abortion case of Dobbs, I think, is explicitly that we do not care about public opinion, nor should we be shaped by public opinion. And it’s been a large chunk of the opinion casting aspersions on Planned Parenthood versus Casey. And Casey from, you know, almost 30 years ago is one of my favorite decisions to teach to first year law students, because in some ways, it’s the decision in which the court is at its most self aware. So I teach it at the most self-aware opinion in the Supreme Court’s history, because part of what the majority does before diving into doctrine is it just asks what gives us our power?
Speaker 2: So why do people listen to us when we decide that the 14th Amendment requires one thing or another thing? Because it’s not necessarily the text. You know, the text of the 14th Amendment or any other amendment in the Constitution is so vague by Congress. I’ll make no law on the First Amendment. Yet Congress makes all sorts of laws that restrict speech or religion. So it’s not just the text, it’s what makes the court’s opinion better than others. And the court’s answer in Casey is it uses the term legitimacy and it says the court’s power lies in its legitimacy, which it defines as a product of substance and perception that shows itself in the people’s acceptance of the judiciary as fit to determine what the nation’s law means and to declare what it demands.
Speaker 2: And what the court meant by that was. The reason why the court has power is because people think what the court does is engaged in principled decision making. And to the extent that the public did not think that the court engages in principal decision making, they wouldn’t take it seriously. It would be the equivalent of, say, when Mitch McConnell issues a press release.
Speaker 2: So I think we all remember in 2016 when Mitch McConnell said, I’m not going to hold a vote for President Obama’s nomination of Merrick Garland, see these precedents. And he cited a bunch of precedents from the 19th century saying like, that’s the last time an opposing party considered a Supreme Court nomination in an election year. And then four years later, when Justice Barrett was nominated, changed his tune and said, well, I can distinguish that precedent from this precedent.
Speaker 2: So what Mitch McConnell is doing is he’s engaged in analysis. He’s looking at precedent. He’s saying, when is it okay to vote on the PREME Court nominations? You’re coming up with a rule. The rule is something like, you know, ten days before an election, if my party is in control, is good, but ten months before an election when my party is not in control is not that in a sense, it’s the same thing that the court does. It’s coming up with rules based in precedent.
Speaker 2: But when Mitch McConnell does it, we look at that and we think this has no internal weight to it. I can tell you what your rules are going to come out with, because I know you are Mitch McConnell. You are the leader of the Republican Party in the Senate. I’m not going to take seriously what you are saying when you’re announcing a new rule or saying that this precedent works in this case. And I think what this court is contemptuous of is that the public will treat the court the same way we treat Mitch McConnell. The court is not worried that when we read its opinions, we’re going to say there is nothing here.
Speaker 2: All of the rules that you are describing are the precedent that you are quoting is just cover for what we all know you’re going to do because you’re Sam Alito. And so to the extent that the court thinks we’re just going to automatically assume there’s a difference between an opinion like Dobbs and Mitch McConnell’s press release. I think that’s an unwarranted assumption, but it’s a cultural one and it’s a cultural force of the court’s power.
Speaker 2: And so what I am drawing optimism from at this moment is the extent to which members of Congress and the public are looking at these opinions and saying, you know, it’s not like the Constitution demands these outcomes. It’s not like these are the only outcomes you can think of. In fact, the court is overruling itself, reaching alternative conclusions. And so we don’t have to live in a system in which children are getting shot every day. And we can’t do anything about climate change. And people are forced to earth when they don’t want to. Like all of these things, we don’t have to live in this system just because the court says so. And so the court is not worried about that, but I think it should be.
Dahlia Lithwick: Mark, I want to give you a chance to rain all over Nico’s optimism, but I first want to just turn to you, Katherine, for one quick second, because I know you wanted to make a point about the COVID cases.
Speaker 3: Well, I think to fully understand what’s happened to this term, it’s also important to look back a term or two and look to the court’s jurisprudence. Some of it were final decisions and some of them were orders out of the shadow docket in the COVID cases, because the seeds for the radical quality of what we’ve seen at the end of this term were there. And your question, Dahlia, is what about public opinion or actually, what about the interests of the public either to elected public officials or just, you know, all of our wellbeing?
Speaker 3: There’s nothing that shows better, I think, the court’s contempt for public welfare then those kovrig cases where they case after case overruled governors, public health officials, public health experts in how to handle and manage an evolving, deadly pandemic in the face of religious liberty challenges. And so that that that religious liberty rights could supersede public health when we’ve had over a million Americans die, what our gay people, women, people of colour, etc., going to be able to assert that could be stronger in the courts eyes than the interests of people like Joseph Kennedy.
Speaker 3: But if you read in the footnotes and between the lines and some of these decisions that we just got in the end of this term, you do see that the court cares about the public, but it’s not today’s public. It’s the public of 1791. How did these amendments, the language of the Constitution, what did it mean to the public at the time that they were written and ratified? That’s the public that they feel allegiance to. A majority of slave owners were that were black people, certainly were not citizens. They weren’t even people. Women couldn’t vote. Women were property, you know, etc.. And that’s the frightening part, is that there is a sense of accountability to the public, but not today’s public. An 18th century public.
Dahlia Lithwick: That’s quite a terrifying reminder.
Dahlia Lithwick: And Mark, I guess I’m going to ask you to play journalist. Amongst the legal scholars for a minute in two ways. One is that even just since the end of the term, we’ve seen an earthquake in terms of states racing to limit reproductive freedoms, clinic closures, abortion funds paralyzed. Not sure what they can do. Threats being advanced that would suggest that they could burden interstate travel claims being made about even what you and I do as journalists, that if we are advocating pregnancy termination, we could be on the hook.
Dahlia Lithwick: And I guess amidst all of this, I wonder if. You can answer. Usually it takes a year or two years to say, Oh, they were gaslighting us when those justices said that stare decisis was settled precedent. You know, that’s that’s a long shelf life for a gaslighting. But we might be sitting here looking at a two week promise that this begins it ends at abortion. It doesn’t implicate interstate travel. It certainly doesn’t implicate other unenumerated rights. And my sense of the thing is that’s been disproven roundly. And anybody who’s still telling us that we are overreacting doesn’t see what’s happening on the ground. Right?
Speaker 4: Yeah. And I mean, I think we all learned during Brett Kavanaugh’s confirmation hearings that he’s a really bad liar, whatever other skills he might have in life. And I’m still trying to search and find out what they may be. But he’s not a good liar. That’s not in his skill set. And yet, every time the court issues a major opinion, he writes separately, like his predecessor, Anthony Kennedy, to try to put his own gloss on it to make it sound more moderate. But unlike Anthony Kennedy, sometimes there is nothing to substantively limit the scope of the opinion. And this is what his opinion in Dobbs does.
Speaker 4: Right. He he says, I agree that abortion is not in the Constitution and I fully sign on to the court’s opinion. But I just want to preemptively judge a few other issues that are going to arise, because FBI guys, I think it’s going to be pretty easy to deal with abortion cases from here on out. Like, I’m not sweating this, it’s going to be totally fine. You know, women can still travel to another state to terminate a pregnancy. Otherwise, that would violate the constitutional right to interstate travel, which, by the way, is also not written in the Constitution.
Speaker 4: But setting that aside, when I read that, I just thought, dude, you cast the fifth vote in the SBA case. You are the guy who said that states can circumvent and nullify established constitutional rights by simply creating a weird, convoluted structure of vigilante enforcement and chill the constitutionally protected activity out of existence.
Speaker 4: How could you possibly claim that there will be no serious issue of people being trapped within their states, barred from traveling elsewhere to terminate a pregnancy? When you just tossed the keys to the kingdom, to red state legislatures and said, do what you will with this copy and paste SB eight from Texas and just add some language about traveling, which is exactly what Missouri Republicans did in a bill that they will quite possibly pass next legislative session, which would allow any random stranger to file a ruinous civil suit against someone who aids or abets an individual’s travel out of state to terminate a pregnancy. So the gaslighting this term has been so poorly done that it gets punctured within minutes of contemplation or hours or days of real world effects.
Speaker 4: You can just look at what’s already going on, look at the draft legislation that the National Right to Life Committee is putting out there, and they are not letting Brett Kavanaugh stop their wildest dreams from coming true. You know, they are putting out drafts, laws that would prohibit advocacy for abortion rights, that would make it a felony offense to encourage someone to terminate a pregnancy in a state where it’s banned to basically use RICO type laws to take down blue state abortion clinics as a criminal enterprise with some kind of jurisdictional tie to a red state and so much more. And this is going to be the rest of our lives unless the court somehow restores Roe, which I think is very unlikely, we’re going to spend the rest of our lives dealing with the fallout from this decision. And the court doesn’t care. And I think Brett Kavanaugh knew that all of this was going to happen and he doesn’t care.
Speaker 4: And this sort of ties back to the overarching theme here, which is that five conservative justices, sometimes six, just do not care to follow or adhere to or factor in public opinion. And my question for Nico that I would like to ask, if I may, is you say, okay, well, this court shouldn’t be so complacent or satisfied that it can exercise this power indefinitely. The court shouldn’t think that it can just issue these totally unreasonable, contradictory or hypocritical opinions because something might happen to it. I’m just curious what you think could happen to it, because from where I’m standing and I mean, look, you know this better than me. You testified before that freaking commission. You had to sit there and explain to them why what they were doing was stupid. And so I want to know, like, what you think Democrats might possibly do that would put this court’s exercise of raw and on. Isn’t power in serious jeopardy?
Speaker 2: Yeah. So, Mark, you keep saying that for the rest of our lives we’re going to deal with this. And, you know, I think that that’s true if we don’t do anything. I think that’s true if Congress is unable to legislate. I think that’s true if we accept the court’s role in our democracy, that we basically have to roll the dice every generation and just accept whatever majority exists on the court and treat that as though it’s gospel. But we don’t.
Speaker 2: I think one notable thing about the court is for all of its contempt of Congress, almost every decision that it issued this term could be reversed by a simple statute passed by a majority of both Houses, so Congress could, in effect, reverse. DOBBS By enacting the Women’s Health Protection Act or a stronger version of it. The Supreme Court allowed Oklahoma in every state to regulate tribes by exercising enforcing its criminal law in Indian Country. Congress could just pass a law saying, no, that was wrong. Please try again. The court harmed the EPA’s ability to regulate climate change. Congress could enact legislation to say that was a mistake, an interpretation of our statute. The court reinforced qualified immunity this term. Congress could abolish qualified immunity and say, if you’re a police officer and you shoot somebody, you can go to court so that they can recover some damages for their loss of life.
Speaker 2: Basically, everything the court did this term can in theory be limited by a statute. Even the decisions that reinforce gun rights or religious liberty could be modified by Congress, especially a Congress motivated not. So what that means is that the court is, I think, a manifestation of a problem with Congress. The fact that we have a Congress that cannot respond to this, the fact that the court in 2013 gutted the Voting Rights Act. Yet Congress has been unable to fix that.
Speaker 2: Notable problem that everyone can identify demonstrates a real problem with Congress in a sense that we should demand more of our national legislature, that it’s time to abolish the filibuster. It’s time to think of Congress as something that can act rather than something we must fear. And the flip side of that argument. So the argument that’s advanced by someone like Senator Cinema is, well, if we got rid of the filibuster, then Congress could do bad things.
Speaker 2: So it’s possible to imagine a Congress that enacts a nationwide abortion ban. So, you know, in Massachusetts or New York or every other state, no one can have abortion because Congress passes a law. And this is actually my fear. My fear is that in 2024, we’re going to have a Republican president and a Republican Congress that in 2025 enacted a nationwide abortion ban and it goes up to the Supreme Court. And then everyone’s like, oh, Supreme Court, stop that law. And the court will be in this really enviable position because they can say, Oh, look at us protecting minority rights by preventing Congress from enacting a nationwide abortion ban with a decision that also prevents Congress from enacting a nationwide abortion protection. So it just puts itself in the driver’s seat, even as it limits what everyone on this podcast would think is something that Congress should not do.
Speaker 2: But I think that that risk, the risk that Congress is going to pass bad laws is a risk that in a democracy we have to take we have to take the risk that in a Democratic legislature, it’s going to enact laws we do not like. Instead, we have this system where we’re so fearful of what Congress might do that we have basically every possible veto we can think of far more than every other country on the planet in terms of how difficult it is for the national legislature to pass laws. No other country basically requires a supermajority in one house, a second house, in a bicameral legislature. A presidential veto followed by this judicial veto afterward, which is just absurd. It makes it really, really hard. And we do not expect anything to come out of our national legislature. And that’s what I think we need to get rid of.
Speaker 2: We need to start electing folks who are actually capable of legislating. We need to require that our president and the presidential administration not simply say, well, I guess if the Supreme Court said that this is the rule. So long as the Supreme Court, a Supreme Court, we have to listen to them. But rather like Abraham Lincoln 150 years ago saying, yeah, the courts, the court, but I represent the American people and I’m not going to tolerate this interpretation of our fundamental law.
Speaker 2: And so there’s obviously a political problem in that. I certainly do not expect this Congress to legislate. There’s a cultural problem in a sense that most people think the Supreme Court should have the final word on what the Constitution means.
Speaker 2: But those are the two problems to focus on the political problem of building power through local organizing, through movement building, to demand a legislature that’s capable of legislating, and then a cultural problem of saying, look, Congress or the national legislature, for good or for ill, should have the final word on these questions in a democracy, because leaving it to the court is a terrible idea for a country that calls itself Democratic.
Dahlia Lithwick: Catherine.
Speaker 3: Well, in a way, you know, Nicole both posed for us a more hopeful future of the left, or at least liberals recapturing Congress and doing good things and also gesture towards the idea of it getting even worse. And I think one of the things that I think is so right about what he said is that law and political power abhors a vacuum. And so the extent that Congress is broken in such a way that it’s not exercising the political power to which it’s allocated under the Constitution, the Supreme Court has stepped in.
Speaker 3: And one of my fears just to also locate so much of this into a historical context is not that Congress will pass an a national abortion ban, although they might, but they might pass this new Republican Congress that we may get in a year and a half. They may pass something that looks a lot like the Fugitive Slave Act that was passed in 1850.
Speaker 3: And when people ask me, oh, you’re a lawyer, you must know, is it legal for states to prohibit people to travel, to get the reproductive health care that they need, even though Justice Kavanaugh says, sure, that’s not going to be a problem in his dad’s concurrence. The answer is we don’t know because we haven’t seen really a statute like that since the Fugitive Slave Act. And I think it’s entirely possible that we’ll see the Congress empowering states in the ways that Marc was talking about, giving them a blank check, and then Congress reinforcing the ability for each state’s law to have extraterritorial effect.
Speaker 3: And that’s what the Fugitive Slave Act did, was empowered, enslavers to go to another state and recapture a black person who they claimed had escaped enslavement, which in most, most, most, most cases was not the case. So any black person could just be snagged off the street. Well, you can imagine any person with a young child with a Southern accent living in New York could get seized off the street and return to some southern state in ways that look an awful lot like the Fugitive Slave Act. And particularly for women of color.
Speaker 3: So I just I just want to keep lifting up the racial and gendered component of what these decisions will do and that we have a history of legislating and the Supreme Court ruling in ways that render gender and race based vulnerabilities invisible, while ruling in ways that see the protections that rights based protections of the Constitution as primarily and importantly there to protect masculine, white masculine vulnerability.
Dahlia Lithwick: Catherine, I’m so glad you mentioned that because it was Professor Dorothy Roberts really put on a clinic in our show talking about the criminalization of particularly black women’s bodies, their pregnancy and their child raising as something that has such a storied history that, again, none of this is new. Mark, I want you to answer this question that is under everything and yet complicated, which is voting, because, of course, Justice Alito tells us, as Nicole says, not only do. We don’t much care what public opinion is, but hey, you have the vote. So if you don’t like this, get out there and vote and fix it.
Dahlia Lithwick: And I think we don’t have to belabor all the ways in which voting is broken, but it does lead us to this kind of chilling, independent state legislature case that the court granted at the very last second when we thought things couldn’t get worse. And I think it also goes to this very, very significant structural problem. I think Nico Flick did this as well, which is the same court that’s telling us that the solution lies at the ballot box, is making the ballot box increasingly inaccessible for precisely the people that they are taking away rights from.
Speaker 4: Right. And we should be ringing the alarm about this case more v harper I think every day from now until it’s decided because the independent state legislature theory is one of the most radical and autocratic conceptions of democracy that this court has ever been presented with. And it really gives the court an opportunity to roll back some rights that many of us took for granted, including rights rooted in state constitutions.
Speaker 4: So, you know, briefly, the idea here is that state legislatures, these beastly creatures that we’ve been discussing this whole time, out-of-control, gerrymandered, extreme, radical, kooky state legislatures have nearly unlimited authority over federal elections and that they can set voting rules, they can draw district lines, they can potentially appoint presidential electors without any oversight from state courts or limitations in state constitutions, and depending on which flavor you prefer, potentially without any input or oversight from the governor, from the secretary of state, from election boards, from these individuals who the conservative justices have maligned as these election bureaucrats who are scurrying around the bowels of state government trying to thwart the election and rig it for Democrats.
Speaker 4: And it’s a really dangerous case, but it’s not the only dangerous case on the court’s docket next term. In terms of democracy, the court already took Maro V Milligan, which is a terrifying Voting Rights Act case in which the Supreme Court will hold that the Voting Rights Act imposes essentially no restrictions on racial gerrymandering, on diluting the voting strength of racial minorities by drawing warped district lines. And we know how the court will rule in Merrill the voting rights case, because the court has already issued two orders based on its future ruling. So the court reinstated a racial gerrymander in Alabama and then a few months later reinstated a racial gerrymander in Louisiana without even bothering to claim that the lower courts had gotten it wrong, that the lower courts had misapplied precedent. They didn’t do any of that. They just decided that they’re done with the Voting Rights Act, a limitation on racial gerrymandering, and they’re not going to let lower courts enforce it.
Speaker 4: And so we have this very odd situation where the Supreme Court of the United States is issuing orders with the full force of law that have substantial effects on our elections and on our lower federal courts based on a ruling that it has not yet issued and will not issue until the spring of 2023. And that is, I think, an incredibly arrogant exercise of power of the sorts that we have not seen the Supreme Court do for quite some time.
Speaker 4: And I think it reflects a very fundamental contempt of democracy and guardrails that people, through their elected representatives, impose on democracy to ensure that everyone can participate in the system, and especially contempt for Congress’s ability to regulate federal elections and to demand that there be some semblance of fairness and equality in federal elections, including in these congressional maps, and not just sort of to wind it all up and let it spring out.
Speaker 4: I don’t understand how Nico can say that Congress can fix all of these problems because every single bill that Nico described to fix these problems would be struck down by the Supreme Court. It would be blocked by a Trump judge within 24 hours. That decision would be upheld by the Fifth Circuit, and then the Supreme Court would keep it on hold until it could formally strike it down. And so I just don’t see a way out of this mess that doesn’t involve direct the form of the Supreme Court. When the court is a constant veto point and it is already more or less told us that if Congress tries to overrule any of its major decisions this term, that it’s just going to step in and strike down those fixes.
Dahlia Lithwick: Nico, do you want to pick up the third gauntlet for I think there’s only two arms. So how there are three gauntlets is its own question. But Nico, I wonder if you want to respond to that. And I also just in the little bit of time we have left, you also said a version of you think it’s bad now, it’s it’s going to go faster and harder. And I want you to just give us a sense of what it looks like, but. First do do respond to Mark.
Speaker 2: Yeah. So I guess I’ll respond just by emphasizing the importance of adopting an external perspective on what the court’s doing. So, you know, Justice Breyer this past fall wrote an entire book arguing that people should not look at the court as a political body, that when the justices issue decisions or they come up with their interpretation, they’re not adopting political perspectives, but jurisprudential perspectives. And so that means something different and that it’s unsophisticated to look at the court and say some people were appointed by Republicans. It seems like these doctrines support Republicans.
Speaker 2: Therefore, you know, you can predict what the court’s doing. For the past 20 years, the justices have been going off saying, don’t look at us like politicians in robes, don’t think of us as partisan. We are just judges doing our best. But I think what’s revealing about this term, what’s new about this term is how easy it is to see how the internal perspective the justices want us to adopt. Is governed by this external perspective.
Speaker 2: And the independent state legislature doctrine is a perfect example of that because it’s not new in Bush versus Gore in 2000. So get as partisan as you can get. The Republican legal establishment trying to elect a George Bush president was mad about a Democratic controlled state court in Florida that was authorizing a recount. So they went to the Supreme Court and they argued the state Supreme Court is violating the elections clause of the Constitution, which says the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature there. And so their argument was, this is for the legislature to decide, not the Florida State Supreme Court.
Speaker 2: A majority of the court didn’t buy that argument. Chief Justice Rehnquist and Justice Thomas did. And I think it’s so important that three of the people that made that argument before the court were John Roberts, Amy Coney Barrett and Brett Kavanaugh. So these were three people who, as lawyers, were arguing, let’s just forget the recount, forget what is going on here. The state legislature should be in charge. They are now sitting on the bench and they’re now going to decide this question. So it’s a question that’s been fermenting in very sophisticated Republican circles for the past 20 years. And basically it’s now going to get its debut before the public as to how destructive it can get. But I don’t think there’s anything particularly new about it. And so I think Mark’s right that so long as we do nothing, this is the future we can expect.
Speaker 2: But I also think it’s important that in that same clause that the independent state legislature folks keep citing, the thing that follows the semicolon is. But it and it’s important. But the Congress may at any time by law, make or alter such regulations. And so the Constitution itself gives Congress is really important role in protecting federal elections. It’s a role that Congress is not playing, but it’s one that I think members of the left and Congress.
Speaker 2: So, you know, Mondaire Jones, Cori Bush, AOC, Elizabeth Warren, only this past year or two have been increasingly sort of like beating the drums about saying we have to do something, because if we don’t do anything, if we don’t step in this courts way, we’re going to lose our democracy. We have a limited amount of time in which we can elect folks who will pass legislation that can actually respond to the court. And so I think Mark’s absolutely right, that if Congress enacted a law that protected abortion rights or that protected voting rights, you could expect that the court’s going to be hostile to it, no question.
Speaker 2: But in the past, when Congress and the court have been in conflict and Congress has been motivated to do something, Congress has so many weapons at its disposal to ensure that our democracy is run by a legislature and not by a court. So Congress can strip the court of jurisdiction. It can strip the court of its building. It can strip the court of its summer recess. It can strip the court of its clerks. It can say, if you want to strike down our democratic laws, do so yourselves. Rather than relying on these 24 year old that can strip the court of it’s discretionary jurisdiction. It can strip the court of the power to enjoin laws. It can say no more federal courts can enjoin national laws and a nationwide system without a supermajority of the Supreme Court. It can change the court’s jurisdiction. It can put the court’s jurisdiction in the D.C. Circuit. Congress can do all sorts of stuff. And in the past, Congress has done so. When Congress was worried about the court invalidating reconstruction, it simply took the case out of the court’s hand and said, Court, you no longer have jurisdiction over these cases.
Speaker 2: The problem we’re facing now is a Congress unwilling to fight back, not a Congress incapable of fighting back. And I think the conflict is something that Congress needs to embrace, because I think, as you were correctly, identifying the status quo is going to lead to an unsustainable system in which everyone is being forced to give birth, in which we’re all going to burn, because we’re not doing anything about climate change in which no one can vote except for members of the Supreme Court.
Speaker 4: Let the record reflect that. While Nica was discussing all the ways that Congress could mess with the Supreme Court, I was fiendishly rubbing my hands together like a cartoon villain and cackling with glee.
Dahlia Lithwick: Good. Cackling is good. It is encouraged.
Dahlia Lithwick: Katherine, I want to let you have the last word. Only because you came on this show and you said to us, this is coming. And you said within a week of Dobbs, there would be some state preparing a challenge to Obergefell or Roe. And you said that if you really take seriously where the court appears to be headed on privileging, as you’ve said, property rights and gun rights and religious liberty over all other rights, we are going to live in a really, really different country, and that’s going to happen very quickly.
Dahlia Lithwick: And I wonder if you can pull together. You know, we’ve got Carson versus Macon. We’ve got Coach Kennedy, the praying coach. We’ve got the follow on to Masterpiece Cakeshop that the court is going to hear that involves a Web designer. And I want you to give us a sense, I guess I’m going to cue you up to do what Mark did last term, which is just say here’s what things might look like next June with the caveat that Niko is quite right. If Congress wanted to become competent, some of this could change.
Speaker 3: Well, the likelihood of Congress becoming not just competent, but actually just engaging is very, very low. For instance, one of the things I work on besides religious liberty is the Equal Rights Amendment, which has in many respects satisfied all of the requirements in Article five of the Constitution, which is the part of the Constitution that tells us how we can amend it. And we have a majority of senators, not a super majority, not 60, but 50 something, depending on the day senators, including Republicans, who are willing to basically say, let’s let the era become law.
Speaker 3: And I think that’ll be an interesting test over the next year to see whether the, you know, Susan Collins feels bad enough about being gaslit by Brett Kavanaugh that she might stand up. Lisa murkowski, a few others to actually get the era over the. A sign which could be very helpful for abortion related rights. It would give the Congress new power and a new momentum to think about, to legislate in the areas of reproductive health and liberty.
Speaker 3: On the other hand, this independent state legislature movement that Mark got us talking about so grimly may more likely be the direction that the court takes and that the really smart advocates on the right are taking, which would ultimately take us back to a world of Dred Scott and the Supreme Court’s 1857 decision that boat for religious liberty, gun rights and property rights, which you hold by virtue of being a federal citizen, all of your other rights are ones that are in the hands of state legislatures and state constitutions. Your state citizenship is actually more important than your federal citizenship, and it is the diminishment of so many constitutional rights by this court.
Speaker 3: Not just this year, but is a trend, as Nicole described it at the outset, while at the same time the elevation of a select few may take us back to a kind of hybrid Dred Scott period, which, as you will recall, led us into a civil war. So if I can end on that extremely grim note, I see the likelihood of our taking more steps in that direction. As greater than that, the Congress will finally get its act together, particularly the Senate, and actually do its job.
Dahlia Lithwick: Nicole, we have a theme on this show, which is that Mark and I are broken tigers and we used to bound through these breakfast tables just full of joy and stripey ness. And we have just become completely your by choice. And you are here hopefully to be the tiger we need to see in the world. And do you want to take us out on anything other than smoldering fire cans and civil war?
Speaker 2: Well, I guess I’ll end by being piglet, which is small and not very powerful on my own, but the glue that holds the community together and that really gets things done by encouraging folks to see themselves as powerful. And I think that, you know, we’ve just gotten so used to an inert Congress that can’t do anything in a Supreme Court that can that we have lost our ability to expect things from Congress while hoping that the court every June will issue opinions in the right direction.
Speaker 2: And I think that congressional Democrats in particular need to recognize that while an act of Congress might do bad things, you know, it likely will do bad things over time. It can also do really good things, and it can also encourage people to engage and expect more from our federal government than is opinions every year, and that the future that we can live with is one which expects nothing from our legislature and continue to handcuff it. Or we can say, look, we’ll take the risk of democracy. We’ll take the risk of allowing the Senate to function without the filibuster, even though it means that we might see laws in the future we don’t like, because all hope depends on our ability to legislate on national level.
Dahlia Lithwick: You reminded me just now that for several years I have been telling particularly reproductive justice groups when I speak to them, that the best rule I can offer for what to do next is the rule that’s posted when you camp at Yellowstone Park, which is if you see a bear be larger than you are, a rule that defies all laws of physics. But nevertheless, I think in the face of sort of grim paralysis being larger than you are, even if you feel like piglet is not a horrible way to be.
Dahlia Lithwick: I want to thank Slate’s wonderful Mark Joseph Stern, who has gotten us through this term with just incredible brilliance and eloquence. I want to thank Professor Katherine Frankie, the James Elder professor of law at Columbia University and director of their Center for Gender and Sexuality Law and Faculty, director of the Law Rights and Religion Program at Columbia, author of Repair Redeeming the Promise of Abolition. And I want to thank Professor Niko Bui. He is the Louis Brandeis professor of law at Harvard Law School. He is a historian. He teaches federal constitutional law, state constitutional law and local government law. All of you, thank you so, so much. I know these breakfast tables have over the years been probably a little bit more fun, but this was exactly the breakfast table that needed to meet this moment. So thank you for joining.
Speaker 4: Thanks, Dalia.
Speaker 2: Thank you.
Dahlia Lithwick: And that is a wrap for this episode of Amicus. Thank you so very much for listening in, and thank you so much for all your letters and your questions. You can keep in touch with us at Amicus at Slate.com, and you can always find us at Facebook.com slash Amicus podcast.
Dahlia Lithwick: Today’s show was produced by Sarah Burningham. Alicia montgomery is vice president of Audio and Ben Richmond is senior director of operations for podcasts at Slate. We will be back next Saturday with the first in our summer series of interviews about books and learn views and ideas that span both above and beyond the current Supreme Court term. And our first guest is former Attorney General Eric Holder, talking about his book co-authored with Sam Koppelman, Our Unfinished March The Violent Past and Imperiled Future of the Vote. A History, a crisis, a plan. Until then, take good care. Be well. Thanks for listening.
