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Ready?
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I was born ready.
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Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And today we do have an opinion from the Supreme Court. Well, wait, no. We have an outcome from the Supreme Court. Ham v. Smith, death penalty and iq. How many IQ tests do you need to take to be ineligible for the death penalty? And what do those scores need to be? And how many times does the case need to be relisted before we actually get a decision? And speaking of court cases, what's a girl gotta do to get into court to challenge the $1.8 billion slush fund that Donald Trump has created on weaponization? More on that. And lastly, David, an interview with the OG man, Nina Totenberg from NPR. She has covered the Supreme Court for nearly 50 years, and I spoke with her a couple days ago without David. And you'll get to hear all of that right here on Advisory Opinions. Well, David, we got one decision from the Supreme Court that is worth at least a few moments of our time. This was Ham versus Smith. This case has been around for two decades. At this point, it holds the record for relists at the Supreme Court in history. It was relisted 23 times in its former iteration. And to explain what that means to people who are not relist, watch subscribers with John Elwood, though, you should be on SCOTUS blog, because that's the most fun game in town. When the court considers a petition at conference, their choices are to deny CERT the much more likely outcome grant cert, not that likely an outcome, or to hold it over till the next conference. That's called relisting it. And in fact, most of the cert grants have been relisted once or twice. What's unusual is for it to be relisted, as in held over conference to conference for 23 conferences in a row. By the way, like, John Elwood has done the work here and shown that relisting once or twice raises your chances of assert grant enormously. But too many relists actually is diminishing returns, and your chance of a cert grant then starts going down precipitously. So once Ham was in the teens, I mean, heck, once Ham was in the double digits, the chances of that being granted CERT were relatively low. So what happened? Well, in that case, they just sent it Back to the 11th Circuit, the 11th Circuit decided it again, and then it came back again to the Supreme Court. This time, they granted certs. So what's the case about? Well, Ham has been sitting on death row for two decades, and the Argument from his counsel was that he was intellectually disabled and therefore ineligible for the death penalty. And he had taken four, five IQ scores. He had scored ranging from 72 to 78. And the question was whether his IQ was 70 or lower. But the margin of error is about three points. So that 72 IQ score with the margin of error included would put him at 69, which would put him below 70. And if you're wondering where in the 8th Amendment anyone got this. Well, several things, David. The idea that you can't execute someone who's intellectually disabled, not really there in the text of the Eighth Amendment. But the argument is that it would be cruel to execute someone who doesn't understand what's going on. Basically, they lack the intellectual capacity. And then the Supreme Court, in a case called Atkins, held that a 70 IQ or below, well below 70, actually not 70 or below below 70, would mean that you cannot appreciate what's happening to you. By the way, this has two different parts of it, right? What is your IQ at the time of the crime? Could you appreciate what you were doing? And actually, totally separately from that, what is your IQ at the time of the execution? Can you appreciate now the punishment that is being meted out? Okay, so Ham, 23 relists sent back to the 11th Circuit. They reconsider it. They once again hold that he is not eligible for the death penalty. Goes back to the Supreme Court again, and this time, David, all this buildup, what do they do?
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Dismisses improvidently.
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Granted, they digged it after all this time, but it's kind of a weird dig. David, normally it's very obvious to us why something got digged, as in, like it had a vehicle problem. It was mooted at some point, like mooted out, meaning it was no longer relevant. That's not really the case here. And I gotta say, there were 63 pages of thoughts and feelings from everyone else. A concurrence by Justices Sotomayor and Jackson, a dissent by Justice Thomas, another dissent written by Justice Alito, joined by Justices Thomas, Gorsuch and the Chief. That was an interesting lineup. So this was a 5, 4 dig, where, as Justice Alito pointed out, six of the justices, Sotomayor, Jackson, Alito, Thomas, Gorsuch and the Chief all thought that there was some guidance they should be giving the lower courts on what to do with multiple IQ scores. But we didn't do that here. Instead, because it's digged, the 11th Circuit decision stands, meaning that Ham is not eligible for the death penalty. David, I was just wondering if you had any thoughts on, I guess there's both the substance and the process. Right. The substance being what do you do with multiple IQ scores and the death penalty is Atkins, you know, judicial made doctrine that has no place in sort of a textualist, originalist world. But then process wise, a 5, 4 dig where we don't give guidance to the lower courts on a question that like, keeps coming up over and over and relisted 23 times. And this is how this ends. Not with a bang, but with a whimper.
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C
Yeah, Sarah, a couple things on this one. In the Sodom Ior opinion in, in part B, she says the court's review is further complicated by the fact that the issue of how to consider multiple IQ scores was neither meaningfully raised nor passed on below. So you do have some vehicle problems here. And I think, honestly, it appears to me that if you're going to kind of cut through all the noise here, the procedural posture of the case was he was not imminent. There was no imminent execution. The 11th Circuit had ruled in his favor. And it struck me that with that kind of IQ range, with the decision reached, I can see why this thing was relisted so much. It was a vague kind of case where it was pretty easy for them to punt that this guy is just not going to get executed. You didn't have to reach a comprehensive decision about how to, how to test iq. So they didn't. And I actually kind of wish they would have, honestly, but they didn't have to. So I feel like they chose not to. And, you know, we've talked about this at some length on this podcast, and it is, it is one of those cases, Sarah, in which our listeners are so valuable because I, I don't know about you, I'm not an IQ test expert. This is not, this is not a core competency of mine to sort of know what IQ is, measuring what these ranges mean, et cetera. But it was very clear to me from all of the input of, from people who have a considerable amount of experience. What became clear over time is it's just vague at the margins. It's vague. It is not so clear cut. It's not like the difference between 70 and 69 is some sort of magic line. It's more like you enter into a gray zone and at that point, what do you do? And it struck me that the Supreme Court basically said, well, I guess the 11th Circuit pretty much kind of got this right, but the zone's going to remain gray.
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When they sent it back down the first time this was the one where they were like, Hey, 11th Circuit, why don't you write more clearly? So this was what that per curiam GVR said. On the one hand, the 11th Circuit's opinion might be read to afford conclusive weight to the fact that the lower end of the standard error range for Smith's lowest IQ score is 69. Sorry, this whole time I've been saying, ham, Ham is the warden, Smith is the criminal. My bad. So on the one hand, was the 11th Circuit saying that his IQ was 69 because one of the five tests put him at 72 and the range would still allow for that to be 69. That analysis would suggest a per se rule that the lower end of the standard error range for an offender's lowest score is dispositive. Basically like, no, that's not how we do this. On the other hand, the 11th Circuit also approvingly cited the district court's determination that Smith's lowest score is not an outlier when considered together with his highest scores. This, that analysis would suggest a more holistic approach to multiple IQ scores that considers the relevant evidence, including as appropriate any relevant expert testimony. And they were kind of like, wink, wink, that's the right way to do this. And so they sent it back down. But now the 11th Circuit then went back and was like, yeah, yeah, holistic. Yeah, yeah, that's what we meant. Okay, so it comes back up. And by the way, for that original one that got sent back down, it was Justice Thomas and Justice Gorsuch who said they would grant the petition and set the case for oral argument. So we know who two of the votes for cert were. And they end up in dissent in the final word here. Okay, so the 11th Circuit says they do this holistic approach. They're not just looking at the five IQ scores. And it doesn't matter whether the five IQ scores all are above 70, including the one that within the range could be 69, that they listened expert testimony, they're looking at who Smith is, and they're just like, no, this guy can't appreciate that he's being put to death. David, I would have been fine if the Supreme Court had said, yeah, that's how we're doing this. Obviously we're not creating a judge made IQ doctrine because that's like manufactured on top of manufactured. It's judicially created this like magic 70 number. And then the IQ tests themselves, of course, have a problem. They are man made and gamable, potentially both ways, by the way. And so, like, weird stuff all the way down. If you only use IQ tests, surely the right answer is a holistic approach. Why couldn't you just uphold the 11th Circuit? Then? Why did we dig it? That doesn't make a lot of sense.
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C
Yeah, I mean, I was very comfortable with just upholding the 11th Circuit. A holistic approach strikes me as, of course, that's what you do. You know, it isn't like a IQ test that says you're 70.
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Definitely kill that guy. He gets it.
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C
He totally gets it. But you tick over that one point and the. The light goes out of the eyes. You don't know what's going on. That's just not the way this is. And so I found this a tad bit frustrating.
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And of course, we heard nothing from Justices Kagan, Kavanaugh and Barrett. Shrug. Well, there's plenty of death penalty cases that come to the court all the time, so if you're going to have a vehicle problem, not to worry. There's lots of cars zooming by. More vehicles to come. David the next substantive topic I wanted to talk about was back to the slush fund. But this time, the standing issues for people bringing these cases. I'm going to admit, David, I was annoyed. I was annoyed with the two January 6th officers who immediately filed a lawsuit about the slush fund. Maybe that is not the right emotion to have, but I was, like, really annoyed. Like, you know, like, it really bothered me because it was so clear to me that they don't have standing. And it felt like a press release lawsuit. And then it worked, right? Every news headline, you know, every major newspaper covers this lawsuit that has no chance of actually doing the thing that they say. And at the same time, everyone now thinks there's this lawsuit, that the courts can now shut this thing down. And if they don't, that's on the courts, right? They have failed in their job. And I think this is frivolous as a term of art in legal worlds. Do I think that they should be sanctioned for filing this lawsuit? No, but it's meritless. So let me read you the paragraph on standing, David. The fund. Now, this is going to refer to the $1.8 billion. The fund's mere existence sends a clear and chilling message. Those who enact violence in President Trump's name will not just avoid punishment, they will be rewarded with riches. That message by itself substantially increases the already sizable risk of vigilante violence. Dunn and Hodges, the officers face on a near daily basis, and it encourages those who are harassing Dunn and Hodges and sending them death threats. To up the ante, these concrete, imminent injuries which defendants have caused give plaintiffs standing. No, they don't. So someone does something that, quote, sends a message that then encourages third parties to do something illegal, and that gives you standing. So I wrote this out, David, in an LSAT style prompt that I put on Twitter, which is maybe a mistake, because unless you've, like, taken the LSAT or listened to this podcast, maybe it's not your thing. But for those who have taken the lsat, for those who do listen to this podcast, okay, Bob assaults Dan. Dan receives threats from Bob's supporters, but there is no evidence that Bob is threatening Dan. Bob is later injured by Tom. Tom agrees to pay Bob for his injury. Dan cannot sue to stop Tom because Dan is not injured by Tom giving Bob money. Okay, now I'll put in the real players. January 6th dude assaults officer. Officer receives threats from January 6th supporters, but there is no evidence that January 6th dude is threatening the officer. January 6th dude is later injured by government. Government agrees to pay 1-6-Dude for his injury. Officer cannot sue to stop government because. Because officer is not injured by government giving money to someone injured by the government who had happened at a different point to have assaulted the officer. As in, like, the injury to January 6th Guy and the injury to the officer are not the same. And I, I hear people yelling like the. The January 6th dude wasn't injured. I hear you, and I of course, agree with you. But there was a settlement here, and the argument is that that's what the settlement is for and that's what they're going to give the money for. So it actually doesn't matter for legal purposes whether the government actually injured this dude. What matters is the government is going to pay the dude for a perceived injury that the government now agrees that they inflicted, whether they did or not. Again, legally irrelevant to standing purposes for someone who is not involved in that set of issues.
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C
Yeah, I don't have a freestanding right to go into court to sue those people that I subjectively believe made my life more dangerous. So that's, in essence what's happening here. In essence, what they're saying. And as a matter of fact, maybe it's right. Maybe it is absolutely correct that if you are going to compensate people who've engaged in violent acts against police, that, guess what, you might get more violent acts against police. That's a reasonable argument to make, is not a standing argument that gets you into court.
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A
Yeah, I mean, the injury to the officers is caused by the people who are making threats against Them, Yes. The reason for the threats may be this slush fund, but the fund isn't causing, legally speaking, the threats. The reason for the threats and the cause for the threats, one of those is legally cognizable causation. Not the reason.
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C
Let's make this super concrete in a way, you know, so both Sarah and I have been exposed to withering criticism online.
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I got a death threat this morning. David. How fun.
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C
Did you really?
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I did, yeah. I mean, on Twitter. So, like, who cares?
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C
Oh, my gosh.
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It also. It was. It was lacking in specificity. Like, I was like, is it to me? I don't know. I think it is, though.
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C
Yeah. So this is a thing that happens. I mean, perfect example. I'm so sorry that happened. So if somebody says, let's just take it Real World, 2019, Sorba Mari writes against David Frenchism, it becomes a thing. People start to get very exercised about it. All of a sudden, I start getting awful things happening at our house. Awful acts of harassment, terrible things. I end up having to call the police, etc.
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A
Etc. That's an interesting hypothetical.
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C
Yeah. Imagine if that happens. So does that mean I have a right to sue Sora Bamari, who did not threaten me at all, did not intend for me to receive threats, threats, or harassment? No, absolutely not. Did he send up the signal flare that caused other people to be like, oh, I really hate this guy. I want to do something about it? Yeah, but those are very different things.
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A
I mean, and imagine a world in which, by the way, Sora Bamari, someone writes something, you know, to defend you, David. Someone writes something defamatory about Sohra Bamari. Clearly defamatory. He sues that person and they're like, oopsie, I did defame you. And they pay him money for defamation. You can't stop the payment to Sohrab Omari for him being defamed just because he said, you know, the payment to him will then increase the number of threats against you once again because you were not injured in that transaction.
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C
Exactly. By the way, if you think, well, only bad people create these kinds of threat environments. False, False. So you can be a person who's decent and civil and try to do everything the right way, and you can criticize someone publicly, and that can cause some horrible people to come out of the woodwork and attack that person in a way that you completely hate and you would never approve of. So, for example, I would never argue that Sohrab intended any of that to happen. It happened. But I don't think that he intended it at all. And so let me put it this way. If a district court grants them standing, that's getting reversed. But the interesting question to me, Sarah, is who has standing here?
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A
Yeah, so let's do one more group that doesn't have standing because we got a lot of questions about Congress. You know, this is taking Congress's appropriation power away from them, like we said, David, quite impassionedly in our last podcast. So why can't members of Congress sue or like Congress as a whole? Well, the courts have held that Congress does not have standing. Members of Congress do not have standing for encroachments on their constitutional prerogatives. Why? Basically, like, when one sibling's beating up on another sibling, you don't go to the third sibling to like deal with it with that third sibling's, you know, weaponry. You have your own weapons. So Congress has political weapons to deal with this. It has the power of impeachment and it has the power of the purse. And by the way, David, let's just do a little golf clap for Congress somehow managing to do its job by not doing its job. It's refusing to pass the appropriation on immigration and for the Department of Homeland Security as a way of protesting this. Now why are they doing it that way? Because if they had some piece of legislation that was like, you cannot use this fund for X, Y or Z, or you can't create this fund, or we are changing the, you know, settlement judgment fund, that would be vetoed by the President, so you would need a veto proof majority. But refusing to fund things that the President wants actually is, you know, a little weapon in their toolkit. By not doing their job, they are somehow David, kind of sort of, if you screw up, squint real hard doing a job, but they don't have standing to go into court because the courts are like, you have these other things that you can do so you can't go into court. I don't think that's like so inherent in the constitutional order, David, that we like it was always going to be the case that Congress couldn't have standing, that there's not some world in the multiverse where members of Congress do have standing. But I guess I'm okay with a world where Congress doesn't have standing because I don't want to. You know, there's 535 of them. You lose the vote. The majority, you know, votes X way and you wanted it to be Y way. So then you get to run into court and do that. Even though you're not actually injured, you had process to vote, which Congress did when they passed this indefinite permanent, you know, appropriation out of the general fund for any judgments, sorry, judgments or settlements out of the Department of Justice. I guess I don't want them to be able to go into court and sort of have a second bite at the apple, so to speak.
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C
So let me ask you this hypo before we get to who actually would have standing.
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A
Well, David, that sounds like a great idea. After the break, I want to tell you about a new podcast. It's called In Dissent and it's hosted by Anastasia Bowden. She's an attorney at Pacific Legal Foundation. We've had her on the show before. She writes a column at Sconus Blog that digs into the stories behind Supreme Court dissents. So here's the premise of her new podcast. The Declaration of Independence was America's first great dissent. I love it. The story of American liberty begins with a minority standing against a majority power. In six episodes, Anastasia traces the thread of American defiance from the Declaration to the Constitution to Supreme Court battles over the Declaration's promise. You'll hear interviews with Pulitzer Prize winning historian Joseph Ellis, author Richard Brookheiser, journalist Jesse Wegman, and more. They have fantastic stories you can listen to In Dissent wherever you get your podcast or visit indescent.org who gets to be a citizen of the United States at birth? When it comes to sports in school, who gets to compete with the girls? And how much power does the president actually have to hire and fire at independent agencies? These are some of the key questions before the U.S. supreme Court this term. And as any good lawyer knows, whether you win or lose in the highest court depends on the facts, the evidence, and how you frame your arguments. But that's not the only thing that matters. I'm Laura Jarrett, senior legal correspondent at NBC News. And this month in a new series for our here's the Scoop podcast, I'm talking to legal experts and lawyers whose past legal victims victories are now the building blocks for the biggest cases still left to be decided. I want to know how they convinced the court they were right, when the stakes were high, what special sauce locked it in? And what could be different this time around? Join us for here's the Scoop Supreme Court Edition new episodes every Saturday. You can find Here's a Scoop from NBC News on YouTube and wherever you get your podcasts. Becoming a parent really shifts your perspective. I felt how suddenly everything isn't just about me anymore. It's amazing, but also it Comes with a lot of responsibility and plenty of unexpected moments you can't plan for. You start thinking more about the future and what would happen in situations you hope never come. That's why having some kind of safety net matters. Just knowing your family would be protected brings a different kind of peace of mind. Ethos makes life insurance fast and simple with a fully online process. Get a quote in seconds, apply in minutes, and even secure same day coverage with no medical exam, just a few health questions. Online, you can get up to $3 million in coverage with plans starting around $30 a month from a network of trusted carriers. Take 10 minutes to get covered today with life insurance through Ethos. Get your free quote@ethos.com ao that's, that's e t h o s.com ao Application times may vary, rates may vary. By the way, they did have a legislative veto when they passed this. So this was passed in 1962. They had started doing legislative vetoes about 50, 30 years earlier than that. And the legislative veto isn't struck down in chadha until the mid-1980s. 86, I think. Yeah. Like they, if they allow DOJ to pull from the general fund for any judgments or settlements, in theory, they could have vetoed any of those.
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C
Yeah. So legislative veto is gone. They say, okay, well, we can't amend the Constitution to get ourselves a legislative veto. That is hopeless. But here's what. We're going to give ourselves a right of action to challenge any, any executive branch misappropriation. We're going to write it into the statute. We get a right of action with summary proceedings, you can outline the proceedings, et cetera. But we're getting it. We're giving ourselves a right of action according to particular procedure where this committee votes for this committee or, you know, or the, the whole House votes, et cetera. One, one chamber votes. We get a right of action to challenge it.
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A
I don't know. I kind of like it. I wonder whether the courts would still say political question doctrine, but I think you're getting closer. But let's, let's put this into then who does have standing? Like we said before, anyone who is denied by the fund has standing then for all sorts of things. The problem is, you know, you apply today, they haven't given you any money tomorrow. Have you been denied by the fund? No. What about six months later? I don't know. Have they been giving a whole lot of other people the fund? And there's a process and you're just stuck in the process. Like all sorts of issues about Getting standing by being denied because they just will not deny anyone as the money starts going out the door. At some point, I think you've been constructively denied, but I don't quite know when that point would be. David, have you come up with anyone else who has standing?
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Yeah, I mean, the platonic form of plaintiff here is James Comey, who, who files is denied and says, okay, this is purely political. I'm going to challenge this thing as applied on its face, et cetera, et cetera.
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The number of arguments for why this is unlawful. First of all, I think you can argue that Acting Attorney General Todd Blanch is not the acting Attorney General because Congress cannot delegate away its advise and consent power indefinitely when which they have done because he can be acting Attorney General for as long as he wants because he was the first Deputy, so that he's not Attorney General, he can't create this fund. Two, you can't pull from the general fund arguing that it was a settlement because it was never a settlement because it was never a case or controversy.
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No case to begin with. Yes.
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Doj. So to your point, David, Congress doesn't need to challenge this as a, you know, inappropriate use of the settlement fund because it never should have come out of the settlement fund. But even if it were, David, I think you could argue that the settlement fund is unconstitutional. Non delegation doctrine. Once again, Congress cannot give away indefinitely and permanently a delegation of its appropriation power to the Department of Justice. And we're not even getting into the Administrative Procedure act problems. The creation of the commission, the process that it's not supervised by the Attorney General, that they didn't follow the right process to create it in the first place. All of that. That is actually what it's going to get decided on. I just have all these constitutional beasts that I wish would get there.
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C
No, I think it's unlawful six ways from Sunday. I mean, there's just no very, very little question about that. It's who gets to challenge it. And yes, we can easily articulate somebody who has standing. But here's the catch 22 of the situation. Awful lot of money can go out of the door and awful lot of checks can be written before you find that person whose case who has standing. Their case is ripe. If it's a delay, you know, I think you can get past emotion to dismiss arguing an ideologically motivated delay. If you can show multiple other people receive checks while you've been waiting, I think you can get past emotion to dismiss there. But again, money's gonna start flying out the door here. I think that they're going to in all likelihood, act as if speed is of the essence here, and money will in all likelihood just start flying out the door before anyone can do anything. And as you were saying, these January 6th officers, I mean, even if you have a district court that strains and strains and strains and grants them standing, it's very difficult for me to see how this would survive an appeal for any meaningful amount of time.
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A
The key is to ask for prospective relief. Again, let's use Jim Comey. So go in, say they are handing money they haven't denied you, but the money is going to run out faster than when they're going to get to your claim. And the process under the APA is not being followed. So I need you to enjoin them from granting any more claims out of the fund until we deal with this process problem that I think you can do almost immediately after you have filed a claim. As in they create the process, you file a claim immediately. And as long as, like, you think that that process violates the apa, you can go in and ask for an injunction at least. So you've got that going for you. Then, like, once everything's paused, you have, I think, some time to, like, figure out the rest of how you're going to attack this thing. But the key is stopping the money from going out the door.
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C
The bottom line here, though, is I think that it's going to be very, very hard to stop all money from going out the door. I think that's going to be really difficult. It's going to be difficult to keep Enrique Terrio or what, whatever, the proud boy leader, from driving his J6 Lamborghini. That's going to be hard to stop. I keep going back to this. That's why you don't elect people who will do things like this in the first place, because the checks and balances are never going to be super immediate. A lot of injustice can occur. The legal system was not set up to rescue the Republic. When every other branch of government crumbles, falls, refuses to do its job. I did like, Sarah, how you said Congress is doing a job. You didn't even say their job. But a job. At least that's some job. At least that's something.
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A
Yeah, I'm for it. I do think that this is the administration's baby right now. And Congress saying, if you don't give up this fund, we. We will not fund DHS. And, like, remember, this is $2 billion for the slush fund. I think it's 70 billion that they're funding DHS for. So a rational administration would take the 70 billion for immigration enforcement, a thing they ran on, versus 2 billion for a thing they didn't run on that will cost them seats in the midterm. But this is not a rational administration in the sense that they care about the Republican Party's chances in the midterm elections at all. I mean, if Donald Trump were being paid by Russia to destroy the Republican Party, tell me what he would be doing differently right now.
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C
Oh, man, isn't that the truth?
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A
Starting a war with Iran, making a deal that makes Obama's deal look awesome, and starting a $2 billion slush fund for assaulting police officers. Tell the 2012 Republican Party that that's what's at stake in the midterm elections in 2026, and you're gonna get some real baffled looks.
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C
The only entity in the world that can save the Republican Party right now is called the Democratic Party. The Democratic Party, that is the only thing.
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A
You don't have to outrun the bear. You just have to outrun the other incompetent, politically inept party. That autopsy report, David, to quote Justice Scalia, if I were the operative who had written that DNC autopsy report, I would hide my head in a bag. You would never hear from me again because I wouldn't want to hear the sympathetic tone of your voice. I would disappear, and it was like I had never existed. David, you would be sending me, you know, you would be calling, emailing, hey, Sarah, I just want to check on you. And I'd be like, new phone. Who dis never talking to you again? The level of embarrassment that I would feel.
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C
Can we just, just take a quick, quick political detour? I want to appeal. I want to talk to Grifter Sarah for a moment.
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A
Yeah, yeah, yeah.
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C
So. So I just recorded the dispatch podcast and we're talking about this autopsy. And one of the things that I said is it was such a perfect representation of the last 10 years of the Democratic Party, which if you're going to sort of come up with a two word summary of their last 10 years, in my view, it'd be staggering incompetence, just staggering levels of Amy coming to the point of, remember the Iowa caucuses, that they couldn't actually count.
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A
Yeah, there was that. Yeah, Bummer.
- [34:32]
C
I mean, what are we doing here? So here's a theory that I had, Sarah. How in a competitive two party system can the Democratic Party be so staggeringly incompetent? And I made the argument that it's a. One possible reason is that the Democratic Party where it governs and most of the places where it governs, it's a one party government. And so the big blue states, the big blue cities. And what does one party government do? It creates sclerotic government and it fosters incompetence. One party government is terrible for the jurisdiction you're governing and it's terrible for the one party over time. And so it feels like what you have is a group of people often who come up through the ranks never having to appeal to a non Democratic voter. They never have to appeal. 8. What, what percentage of Democratic elected officials ever have to win Republican votes or even a critical mass of independent votes to win. And then they come out into the larger public and this is just a mild version of it. I mean, one party rule breeds a lot of corruption and incompetence, but one of the parts of incompetence that it breeds is they can't speak to other people outside of that bubble. It comes across as inauthentic, as weird, as not real. And so it's weird to say in a closely polarized two party system that one party is one of its principal maladies is where it governs. It governs through one party rule. That was my thesis. Sarah, what do you think?
- [36:14]
A
I would like to quote our new AO mascot, Senate Majority Leader from South Carolina, Massie Shane Massie.
- [36:23]
C
Yes.
- [36:23]
A
I will tell my Republican friends Republicans are stronger when the Democratic Party is vibrant and viable. We are. Competition makes you better, y'. All. We know it in the economic sector. It also happens in the political sector. A legitimate opponent will make you a better competitor every time. True for the Democratic Party as well. David, the only other thing that I will add to your analysis, I just think. True, no notes, 10 out of 10.
- [36:49]
C
I just work chopped a column right there.
- [36:51]
A
Sarah, not having actual separate political parties is part of this as well. Political parties were the bridge over different elections that would have a party platform, have principles that candidates then had to come and agree to to be a Democrat or a Republican without political parties that actually enforce that through having money to pick their standard bearers, having sticks to whack the people who get out of Lyme. You no longer have an actual political party, so you don't have anyone whose interests go beyond the next election. And that causes a lot of what you're talking about as well. It becomes this race to 51% instead of a race to 60% over 10 years. 60%'s a little unlikely these days. But like 53, 56% over 10 years. Nobody is doing that work. Nobody has the interest to do that work. And I mean, is there any better example than the DNC autopsy report that the DNC is not a real place anymore that exists separate and apart from whoever the next presidential candidate will be? They can't even put together. Okay. We were having a bit of a giggle in the green room at ABC on Sunday because there's so many cliches in the autopsy. There's very little actual substance. There's just a lot of, like, things that are crocheted onto pillows. But, David, like, they're not writing real stuff. They're just writing random cliches as someone else wrote in a column. You know, what they might have wanted to put in to the DNC autopsy report is next time we should try to get more votes. Good plan, y'. All. Good plan. Cause that's. That was about what it said.
- [38:39]
C
It's the Shane Massie, which I'm so glad you read that again, is that Shane Massie excerpt says is the Republican Party is drifting in that direction as well. This is the hyper gerrymandering is you're going into a series of states and institutions that are one party states, one party jurisdictions. And so you're making both parties in this highly competitive environment sclerotic for the same reason. Because they don't actually have to extend beyond their core constituency until once every four years, a few swing states in. In the presidential race or a few
- [39:13]
A
Senate, that will be up to the presidential candidate to do that. Not the Democratic Party, not the Republican Party. It's just whether the candidate can win those swing states with a platform that, as we've seen on the Republican side is totally separate from anything the Republican Party stood for before or probably since, like, probably after. It'll just be candidate to candidate. Whatever that person thinks will get them to 51% this time. And what it means to be a Republican and a Democrat will come down, frankly to vibes. Do you drive a pickup truck or a Subaru? Do you drink at Starbucks or you drink at Dunkin Donuts, like, whatever that may be. You know, do you have a Trader Joe's bag and you know, matcha latte? Like, oh, then you're with that team, because that's the Vibes based team. It will have nothing to do with the size and scope of government.
- [40:02]
C
Yeah, yeah. And then as these party platforms change every four years, it will still be that guy. It'll still be God's will. Did you vote for each one of those parties, depending on, you know, which religious argument is, which religious faction is making the argument. It's amazing how God's design for man changes every two to four years.
- [40:24]
A
Fascinating, really.
- [40:25]
C
Yes. Based on who's running a political party.
- [40:27]
A
All right, David, when we get back, we're going to hear from the one, the only, Nina Effing Totenberg. She has covered the Supreme Court for nearly four, five decades. She has covered three chief justices. Three, David. The Burger Court. She was there. It's incredible. The confirmation hearings for three chief justices, by the way. So the full Burger Court, the full Rehnquist court, and now 21 years of the Roberts Court. Hold onto your hats, cats and kittens. We're going to do some Supreme Court media history. When we get back, As promised, we have Nina Effing Totenberg on today's advisory opinions podcast.
- [41:17]
B
I've never been introduced that way.
- [41:21]
A
You should be introduced that way every day, Nina. That should be your name. Like rbg, like notorious rbg. It should be Nina Effing Totenberg. That's what I've, it's right decided. For those who have been living under a rock for 50 years, Nina Totenberg is NPR's legendary legal affairs correspondent. She has covered the Supreme Court for nearly half a century, and she's covered the nominations of, I mean, hold onto your hats for this one. Three Chief Justices, 16 Associate Justices, and of course, several failed nominees along the way. This is incredible because, Nina, you have been in the room where it happens over and over and over again, from the Burger Court to the Rehnquist Court to the Roberts Court. You are one of the most central characters in American political life as a whole, but particularly for the third branch of our government. So I just. We're thrilled to have you here. Thank you.
- [42:24]
B
Well, it's wonderful to be here. And I'll plug your book before we do anything else. Everybody should read it. If you're interested in law clerks, then you can read the beginning. If you're not interested in law clerks, skip that part and read all the gossip from then on.
- [42:44]
A
You are too kind. I think I'm allowed to say. You called me from your vacation. You had brought my book to a beach vacation. And I was like, oh, my gosh, you guys, Nina Totenberg is calling me. 18 year old me could not believe that Nina Totenberg brought my book to the beach. Okay, let's start with, you know, 18 year old you. You started covering the court in 1971, and it wasn't even considered the Supreme Court wasn't enough of a beat to be a full time job. What made you say, like, no, I want to. I want this. This is where the action's gonna be?
- [43:17]
B
Well, I'm not sure that I was that prescient. I just thought it was so interesting. So I would just ask anybody any question that came into my head and surprise, surprise, most of them answered me. You know, some justices would not see me. Most of them probably would not see me, but some did and explained to me sort of the basics, some of the stuff that you do now in SCOTUS blog, how is an opinion assigned, et cetera, et cetera. I didn't know anything.
- [43:50]
A
I mean, you guys had this sisterhood, you know, you, Cokie, Ann Compton, Robin Sproul. I'm missing so many names out there, I don't want to forget anyone. But this was sort of the beginning of these lionesses covering American politics. And there were a formidable number of you all of a sudden, even though you were, you know, obviously wildly outnumbered, of course, and there weren't really women above you for you to, you know, grab a hand to get pulled up. I mean, was there even a women's bathroom in the Supreme Court when you were starting to cover it?
- [44:24]
B
There was a women's bathroom for tourists, but there wasn't for the justices. And so they had to change things around a bit. Originally, Sandra Day o' Connor had to run down the hall if she needed to go, and they were on the bench, and when they realized how far she had to go to her office to pee, that was something that is a basic function that even Supreme Court justices can understand. So they fixed it.
- [44:54]
A
How did you become friends with Ruth Bader Ginsburg?
- [44:57]
B
It was back when I was first assigned to cover the Supreme Court. I really didn't know what I was doing. The way I dealt with that was to read everything I could read and talk to everybody I could talk to. So I pick up this brief of a case that's to be argued at the Supreme Court called Reed versus Reid. And the question is whether a state can automatically prefer a man as an executor to a woman. But I didn't understand that because the Brief said the 14th Amendment guaranteed equal protection of the law, protected women. And I thought it protected black people, but it never had occurred to me that it might protect women. And so I flipped to the front of the brief, and it was written by a Rutgers law professor named Ruth Bader Ginsburg. And I went into a booth to make a call to her. She Answered. She gave me like an hour long lecture. And I finally got out of the booth, just kind of expiring from heat, and knowledge poured into my head. And that was the beginning of a gradual friendship of the. Lasted almost 50 years.
- [46:09]
A
Now, of course, we have live audio. I mean, my job is so much easier than yours. I mean, in so many ways that I know, let alone the ways that I can't even think of. But one of the biggest ways is that there is live audio of the oral arguments. There's a transcript within hours of the oral arguments. You didn't have any of that, so how would you report on it?
- [46:34]
B
Well, the first thing I realized was that I had to write differently because I didn't have audio. I would go outside, interview somebody who was involved in the case. Both sides, if I could, very quickly put in a couple of cuts of tape. But the body of the story was still what went on in the oral argument. And there was no transcript and there was no recording. There are people who still write to me and say, I miss the way you used to reincarnate the way the whole thing went. And I would go, Justice Scalia, that's ridiculous. Justice Ginsburg, why is that ridiculous? I would just pick the very best parts. What we would do, the press corps would do is we would gather downstairs after an argument and, and compare notes. And I would say, well, I have Justice Brennan saying, but I lost what he said after that. And somebody else would say, oh, he said this. We would stand there for about 10 minutes. And then, since there was no transcript then available for two weeks, we just agreed on. Basically, we had just agreed it was an antitrust conspiracy. Clearly we agreed that this is what we were going to say was said in the Supreme Court of the United States. And nobody was gonna contradict us. There was no transcript.
- [47:58]
A
Do you feel like the Supreme Court press corps has a different relationship to one another than, say, the White House press corps?
- [48:05]
B
I've never been a full time White House reporter, so I'm not sure, but I think there are not gonna be huge numbers of scoops. For example, there might be the occasional scooplet, and there certainly was, in the Dobbs opinion, a humongous breach. But I think that it's in some sense a very genteel version of us against them. We wrote a letter, I think everybody in the press corps signed it, from Fox to msnbc, signed it, a letter to the chief asking that the. They make public in a contemporaneous way the announcement of opinions. And we never even got an Answer. So that's my thing.
- [48:51]
A
I want to go over some of the changes at the court in the last 50 years. There's been many. The most obvious, I think, is the number of cases that they're taking. They were taking 140, 160 cases when you started covering the court. Now they're taking 60. How do you think that has changed what it feels like to cover the court? The sort of pace of the court I sort of came about, if you will. They were taking more cases, but nowhere near the number of cases they were taking when you started. Does it feel differently?
- [49:29]
B
Yes and no. When I first started covering the court, they had to take certain cases. They were mandatory. They weren't very interesting. They were diversity cases and things like that, but they were mandatory. It was never as insane as the emergency docket is today. There were death cases. There were a lot of death cases, and they caused a lot of angst for the members of the court because they were many times the number of what they are today, even though this court almost never stops in execution. So I'm not sure that the number is as important as the emergency docket has been.
- [50:14]
A
Another thing that has changed, I think, is the types of resumes that become Supreme Court justices and the types of resumes that become Supreme Court clerks and become Supreme Court advocates. It feels to me like that has narrowed enormously in the last 50 years. Anthony Kennedy was a solo practitioner in Sacramento. Sandra Day o' Connor had run for office. She had held elected office, been, you know, campaigned. It doesn't feel like that would even make the short list. These days. We have Paul Clement arguing, you know, 10 cases in a single term. When they're only hearing 60 cases. You have Supreme Court clerks that are doing multiple circuit clerkships. All of this feels like a winnowing to the number of people who are in the room.
- [51:04]
B
I think that's right. On the one hand, they have a more consistently excellent class of advocates because if you're hearing 160 cases a year, there's a certain number of people who will insist that they wanna argue it. So certainly the court has improved in that way. But I think the business about who is on the court is so much more gray. In Europe, judges are often civil servants in the sense that they're picked from the civil service of judges. We do that now by default because presidents want to be sure, absolutely sure, that they have a nominee that they agree with and like and will do the right thing. And I honestly think that Republican presidents are much more that way. Than Democrats are. I think when President Obama picked Merrick Garland, he did it because he thought he might get him through because he was a relatively conservative pick and he was much beloved, and he was wrong about that. But Republicans, because they have felt burnt by nominees, I think, want to pick somebody who's a sure bet. And the nature of the sure bet has changed over time. The court that I originally covered included Hugo Black, who'd been an incredibly forceful and important senator. People said he'd been a judge for a nanosecond. Earl Warren had been governor of California three times. Tom Clark had been attorney general, and he'd been a force in Texas politics. So they had a real sense of what was going on in America. I think, in a way that when you pick people who have only been judges, who in the current situation are almost all products of Washington, you get a very different kind of force.
- [53:07]
A
I'm curious for your take on this. Everyone wants to ask, you know, who is the Ginsburg and Scalia relationship that we have today? And this, you know, inspiration of them from such different ideological places, but being such good friends, taking vacations together, riding elephants together, et cetera. And my thought is that actually they are the anomaly that before Scalia and Ginsburg, you have, you know, the Scorpion Court, you know, basically where everyone hates each other. The introduction of Sandra Day o' Connor creates this different culture where they attempt to humanize each other, be friends with each other. Scalia and Ginsburg come in this era and that, like, right now, we don't have a Scalia in Ginsburg, but that. That shouldn't really be surprising to anyone. What do you think?
- [53:56]
B
Well, Scalia and Ginsburg knew each other before they were on the court, and they knew each other a long time. At one point, she was at something at the University of Chicago, and they were there together for some. I don't know whether it was a course or a conference, but she just fell in love with him because he was so funny. The other thing that they shared was a great meticulousness about writing. And although he was much more bombastic in a way than she was in her writing, she was just as. I mean, there's this, you know, she famously said he descended from her VMI opinion and he brought it to her ahead of time so she could have a chance to reply. And as she famously said, it ruined her weekend because she had to redo it and make it better. He did her a favor. It made it better. But if you look at the footnotes in that opinion, they are fighting tooth and nail. And they were able to do that and not step over the line of a personal insult. We now know from Tony Kennedy's book how much his feelings were hurt by some of the things that Scalia said about his same sex marriage opinion. If he'd written something like that, he'd have to walk around with a bag over his head. And I always thought that Kennedy was pretty stoic about it, but it turns out he was stoic about it, but it really hurt his feelings. So they're human. And I don't think this court is particularly good at understanding the humanness of the other members of the court, Perhaps
- [55:36]
A
because of that narrowing of resumes and whatnot.
- [55:39]
B
Yeah, exactly.
- [55:40]
A
But you saw the Scalia, Ginsburg friendship outside of the cameras, right? You're there at private dinners with them. I don't know. Was it the same behind closed doors? Was it as fun as it seems to all of us now, looking back at it, Were they as funny and pointed? Would they talk about legal things? What was dinner like with Nino and Ruth?
- [56:03]
B
Well, she was really a quiet person, so you had to know her well to get her to talk. And what she wanted to talk about most often was the law, something that had happened and for children and grandchildren. My husband always was great at getting her to talk. And of course, the more she drank, the more she talked. But he, on the other hand, I don't know where he put it all, but he never was even remotely tipsy. She didn't seem to be, except that she fell asleep at the State of the Union famously also. And. But I think that it was like that between them because they genuinely respected each other and they loved the court. I am not sure how much anybody on this court loves it in the sense that you think it's really working well and that you may lose, but you may win. I don't see that. And part of that is because there really isn't a center, an ideological center of the court. We like to say, well, you know, there are three courts. There's the chief and Barrett and sometimes Kavanaugh, and then there are the three more conservative conservatives, and then there are the three liberals. You know, the number of cases where of significance where that is. The case where there is a real chance for a more liberal outcome is very, very minor, except when it comes to Donald Trump.
- [57:46]
A
You've got the tariff case, you've got federalizing, the National Guard, you've got alien enemies. All of those were six, three the other way.
- [57:54]
B
But those are the cases that Are, I would say, are outliers. And the tariff case is a money case. It's not a rights case. And although I know money is very important to people, what kind of rights you think are important are not the same as money cases. And when I say what kind of rights, I mean from one end to the other, One end of this court thinks religious rights trump almost everything else. The other side of the court doesn't think that. But there are many cases in which a more centrist court would have been more interesting to cover in some ways, although, God knows, this is an interesting court. But it always gave me a sense that there was a center, that I didn't really have to worry about the country because nothing completely outrageous was gonna happen. And I'm not sure I think that anymore.
- [58:57]
A
Another change that I think has happened in the time you've been covering the Court is the increasing isolation of the justices due to protests at their house, death threats, people mobbing them at restaurants, secret recordings. I think the result of that has been to further and further isolate the justices away from meeting people that they don't already have relationships with. They can't go to restaurants anymore. You know, Justice Alito used to, you know, walk down to Cosi to get a salad. Nope. Now he has to bring his lunch. He can't just walk down the sidewalk and stand in line and wait for a salad. He was only, you know, confirmed in 2006. Like, it hasn't been that long that that change has occurred. And I wonder if you think that has changed what it means to be on the Supreme Court, what it means to be a Justice, how it might change, who's willing to do this job in the future.
- [59:53]
B
Those are all real problems. Now, I know justices go to dinner in restaurants. There are ways they can go to dinner in restaurants. And they don't generally get accosted if the restaurant knows they're coming and they can put them in a corner or whatever. But I think this is just, in some ways, a very sad and unfortunate price of having the Court be such a focal point. I went back because I had to give a speech to the American Law Institute at one point, and I think I was at the Scalia's house, and he said to me, why don't you just go back and see if the cases are different since you started covering the Court? So I did that. And they were very different in different eras. But what really struck me was that there were many terms when there was no big case. The Court was not the focal point of America, it was not deciding everything. And that was true even after abortion. And, you know, there are folks who call this court the YOLO court. You only live once. So there is, in the sense that you're trying to grab on, to change everything you've always wanted to change. This is your chance. You never know when the court will change, and you won't be able to. But that has its price, too. I mean, it's not a democratic institution, after all. And so when it decides to intervene in every Tom, Dick, and Harry thing, that everybody cares about that moment, and there isn't a center of the court, so it does move the court quite dramatically to the right. There's a price to pay for that, and I don't think anybody should have to pay it.
- [61:44]
A
Do you think there was a moment when the Supreme Court became a more central character in American political life?
- [61:50]
B
You know, it's gradual and it's over a long period of time. And I do think that everything has speeded up since President Trump became president and had the opportunity to name three very conservative justices. And it changed the winners and losers. And without a center on the court, it changed life on the court very dramatically. I think I was thinking about this today. I think there were three moments that were confirmation moments. One was Abe Fortas. The Nixon administration worked with a journalist and got information that he had done something definitely unethical. And they began a campaign just as he was being nominated to be Chief justice by President Johnson. And he didn't even want to be chief justice. And he was actually, he was a very interesting and good justice. He argued many cases before the court, including the one that held Gideon vs. Wainwright, that held that you couldn't lock somebody up without a lawyer.
- [63:04]
A
And just for listeners, he had accepted money basically equivalent to his salary from a private guy to sort of provide legal advice while he was a Supreme Court justice.
- [63:14]
B
But actually, that was the strange thing. It wasn't a lot of money. It was like 20 grand. And he did it knowingly. And I think it was, you know, I don't know. You never know why people do stupid things like that. But he did, and he got caught. And then, of course, there are always other things that you can find once you find one. And Republicans filibustered his nomination, and they succeeded in. In forcing his. Him to resign.
- [63:48]
A
I mean, correct me if you think I'm wrong about this, I don't think they filibustered it. It was both right, they didn't have the votes for cloture, but they also didn't have a majority, as in. It was. It wasn't just that they had 51 votes, but not 60 votes. They didn't have 50 votes for cloture.
- [64:01]
B
They didn't. Yeah, they didn't have 60 votes, but they also were not going to let it come to a vote so they could filibuster and prevent the vote. And it was very clear to me at the time that the Democrats were uneasy about this nomination, that this was an ethical. No, no. But I think it was the first time I had ever seen a successful blocking of a nominee for the Supreme Court, in this case for Chief Justice. Then he's off the court and Warren is about to retire. And it gives the next president a great deal of leeway. He has two nominations, I think. But the other thing that was interesting about it is that what followed was a period in which there were some nominees to the Supreme Court who also should have been and were nixed. One was Carswell, who had done all kinds of things that a good FBI screening should have screened out. And he was not respected even by his colleagues. So he was blocked. But he wasn't just blocked by Democrats. A large number. I think it was something like. Maybe something like 15 or 18 Republicans voted against him. It was big. And then he followed Clement Haynesworth, who was also rejected for reasons that I thought at the time were reasonable. And I think now I was wrong
- [65:43]
A
Fortas just to go like. But Fortas had also been blocked. That was Republicans and Democrats. There was not 50 votes for Fortas. That was because Republicans and Democrats voted against Fortas.
- [65:53]
B
Right.
- [65:53]
A
Carswell had Republicans and Democrats voting against Carswell. I think what changes with Bork is it was ideological and it was partisan.
- [66:03]
B
It was ideological, it was partisan. And there were still seven votes against him. I think that were Republicans. The Republican Party was a different party then, but Scalia got through with no problem at all. And that was because he was charming. And Republicans controlled the Senate and Republicans controlled the Senate. But he was like, almost close to unanimous, if not unanimous. It was the same as with Ginsburg. He was wildly respected. He was funny, he was charming. And he had no black marks against him. He had only good marks for him. The Democrats couldn't say, we don't like you because we don't agree with you. The Bork. I've always thought that the Republicans were justly infuriated by the Bork hearings, but that there was a there, there. And some of the things that happened are conveniently forgotten. He was not a good witness. He Refused, you know, to have practice sessions. I think that the Democrats did some things in those hearings that they probably shouldn't have, like looking at what movies he'd rented. That was crazy. But they painted a picture of him. But he helped paint help. And, you know, you can't overcome that.
- [67:22]
A
Okay, last question for Nina Effing Totenberg. Do you think the left in the next Democratic administration will try to add seats to the Supreme Court? And do you think that adding seats to the court will end it as a viable independent branch of government?
- [67:40]
B
The Democrats would have to have not just a wave, but a huge wave. But to have enough people to do that in both houses at the moment, they're scrounging to even control the House. I personally think it would be unwise because what the next Republican president would do is add more and pretty soon you have a court that is unwieldy, unrespected. And you know, Justice Ginsburg said the same thing. She thought all of these ideas about changing how the court functions. We're not smart and we're not useful in a democracy. It is conceivable to me that at some point there might be a move for term limits, 18 or 20 year term limits. But I don't know how you get there. I think the Constitution pretty clearly says it's a lifetime appointment. And that would mean that you'd have to get a majority of the House and Senate, a 2/3 majority of the House and Senate, and a 3/4 majority of the states. And I just, I don't see how that happens.
- [68:52]
A
Nina Totenberg, covering the court for nearly 50 years. Thank you for sharing all of this history with us, all of this wisdom. And for those of you watching on video, you can see her desk is just piled with opinions and briefs and maybe chocolate covered almonds.
- [69:09]
B
It's actually coffee beans in case I get sleepy reading briefs.
- [69:16]
A
Chocolate covered espresso beans are the secret to becoming. Nina Totenberg. Thank you so much for joining us. We appreciate it.
- [69:24]
B
Sarah, thank you for having me again. You wrote a great book, Sa.