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- [00:00]
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- [01:11]
V. Speer
Rise and Shine, Fever dreamers. Look alive, my friends. I'm Vspier.
- [01:15]
Sammy Sage
And I'm Sammy Sage.
- [01:16]
V. Speer
And this is American Fever Dream, presented.
- [01:18]
Sammy Sage
By Batches News, the show that has a bit of frustration at the Supreme Court. Their age, their opinions, their general vibes.
- [01:27]
V. Speer
And today, Sammy had a great conversation with Leah Lippman who does the podcast Strict Scrutiny. We've had them on before. We love them. She also just wrote a book called Lawless how the Supreme Court Runs on Conservative Grievance, Fringe Theories and Bad Vibes, which is a mouthful of a book, but a lot easier to read than it is to say.
- [01:47]
Sammy Sage
So her book is really great. And I'm not someone who's really gonna read a lot of law books because they're very dense and boring. Even if they, even if it's interesting, like if you were to speak about it, it's just very boring to read legal, and that's, you know, what they call it over here. But she is very, very interesting. She's really funny with it. Like she's, she's clearly not just like someone who's stuck in the theory and the books and she knows how to really translate it for other people. But what I wanted to ask you as we head into this conversation, when you were younger I guess or even maybe like 10 years ago, did you feel like the legal profession in terms of the judiciary, did you think that that was like a very serious, somber corner of our government?
- [02:38]
V. Speer
Cuz I always kind of thought that yes and no. 1 I, I didn't think about it because I just assumed that our institutions were institutioning and at that time in the 90s and 80s they were. But I had an experience because I wanted to go to a different high school than the town I lived in. I had to like get emancipated from my parents. I don't often talk about this, but I had an experience with probate court as like a 15 year old and I actually found the judges in family court to be so much like more warm and understanding and thoughtful and interesting than I would have ever expected them to be. So I see both when it comes to the law. I've seen like my expectation that these are very studious, scholarly, smart, thoughtful, long term thinking people. And then I've also seen like my silly probate family court judge like be very cute. So I think, I think I had a good opinion of the judiciary that I now sort of don't.
- [03:39]
Sammy Sage
Yeah, I mean I didn't think, I think there's like also different obviously parts of the law. You know, there's Judge Judy, there's.
- [03:46]
V. Speer
Yeah, I mean my idea of Bender.
- [03:48]
Sammy Sage
And Bender, mine were like, yeah, they.
- [03:51]
V. Speer
Do a lot of commercials and also have a lot of TV shows, People's Court, Judge Judy, Judge Joe Brown.
- [03:57]
Sammy Sage
Yeah, Nancy Grace. But I, I always perceived the, the judiciary, you know, the federal judiciary that's deciding constitutional law to be just like a different vibe. You know, I always, you know, corporate lawyers are out there for the money and like kind of the dice.
- [04:17]
V. Speer
I wasn't in Harvard yet, so I wasn't, I wasn't, you know, I wasn't.
- [04:21]
Sammy Sage
Worried about Harvard law, but like it's hard. Yeah. But I, you know, I didn't really get that there was, that there was like this cultural kind of like corner of people trying to manipulate, just trying to inject their agenda. I guess that's what I didn't really understand is that it is more of an agenda fied part of the government than I really understood it to be like. And maybe it wasn't always like this, but it's really quite disappointing when you realize that it's no more, there's no more fidelity to the constitution than there is in any other branch.
- [04:59]
V. Speer
Well, I mean I went to school for theater so I didn't have A front row seat to the Federalist Society coming to my school and like, holding rallies and like sign up camps for future lawyers to.
- [05:12]
Sammy Sage
I went to a labor union school.
- [05:14]
V. Speer
Yeah. To get like pipelined into far right Deloitte conservative, you know, organizations and whatnot. The closest thing that I ever saw to that, and maybe this will be the next industry we expose is one of my friends had gone to school for accounting. And I remember I was like graduating with my little theater degree and I was like, oh, I guess I'm gonna go be a waitress. And she's like, oh, I'm doing a summer with KPMG in like the Bahama, like, for her summer internship. And I was like, oh, Steph, like, that's awesome. So, yeah, I assume that some of these law kids at these big schools were being very heavily and expensively courted by folks like the Federalist Society and America First Policy Institute and whatnot. And now here we are a generation later.
- [06:00]
Sammy Sage
Well, that all came in a reaction to, you know, the 60s and 70s, more, yeah, liberal vibes in America. And I think that, you know, that was really like a pipeline. I don't know if the more liberal justices have the same sort of pipeline where they're identifying talent that could potentially be on the federal bench in the future. I just don't know if that's really how that works as much. Like, I think there's obviously a lot of competition to get clerkships and, you know, people kind of want to like, move between different areas and, you know, make the right connections with the right big law firms or work in the government that in a way that would like, you know, position them for that. But I think that it's a much less defined pipeline than, you know, they are in with the Federalist Society and they pick them out. But also like the all big law firms, not maybe, I don't know about all, but many, I think most donate to the Federalist Society, but they also donate donates to like the aclu. So it's there.
- [07:06]
V. Speer
I. I just think maybe we didn't have our eye on how nefarious this was because it seemed like, oh, folks are interested in college students making an easy transition for them. This seems like a good thing. I would say. When it came to like white hat lawyers or the people who were maybe going to go the more liberal way, I think they more got pipelined into just being a federal servant or like moving to D.C. and being a lawyer for like, you know, the Wildlife Federation or something. One of my friends from high school Went to Vanderbilt Law, and I remember what she worked on for her senior project was how they were going to legally prosecute Saddam Hussein, which was pretty cool, like, because they had captured him and they wanted to find a way to kill him, obviously. And she was, like, part of, like, the Vanderbilt law students who were, like, working on how you would constitutionally kill a foreign dictator. And we thought that was, like, the coolest shit in the world. And also, like, really crazy because that was big for coming from my small little town for somebody to be involved in that. And then she went on to, I believe, be a jag, and now she's a judge. A judge. So it's like, you know, you could go be a military lawyer and try to figure out. But they were always the ones that I knew, at least people I was friends with. They were trying to figure out how to use the Constitution and work within legal frameworks, not necessarily how to work around it or change laws to sort of usurp the original spirit and intentionality of the Constitution the way they are now.
- [08:26]
Sammy Sage
I was on. Under the impression that they were seeking constitutional ways to carry out.
- [08:31]
V. Speer
They were.
- [08:32]
Sammy Sage
Dictatorial assassination.
- [08:34]
V. Speer
They sure were.
- [08:35]
Sammy Sage
Allegedly.
- [08:35]
V. Speer
They sure were. Yeah.
- [08:37]
Sammy Sage
Well, you know, Emily Amick, her job, her most recent job was prosecuting was trying to get settlements for victims of terror in the Middle east or, you know, abroad. And, you know, that's.
- [08:50]
V. Speer
There's literally stuff that lawyers do, and. But what we hear about is all the horrible, nasty stuff a lot.
- [08:57]
Sammy Sage
Or the very expensive stuff.
- [08:58]
V. Speer
The very expensive stuff.
- [08:59]
Sammy Sage
You know, there's just lawyers who are just writing contracts to make people very rich.
- [09:05]
V. Speer
Yeah.
- [09:05]
Sammy Sage
But on that note, I think that we should get into the episode with Leah because she talks about how we've ended up in this place, and not pretty. Welcome back. I am joined by Professor Leah Lippman, co host of the Strict Scrutiny podcast and author of the new book Lawless how the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. Welcome.
- [09:34]
Leah Lippman
Thank you so much for having me. I'm so excited to be here.
- [09:36]
Sammy Sage
And thank you for writing this book, because it is really. This is like, what I've been looking for, a way to explain how crackpot I guess the Supreme Court has become compared to what I think the American public thinks they're doing. I just want to say this is a legitimately entertaining book. And basically, you kind of summarize in many words, but with many pop culture references how the conservatives on the court are codifying the culture wars into law. So can you talk A little bit about this. What are they doing? And, like, why is it so much more outrageous than people even realize?
- [10:15]
Leah Lippman
Yeah. So there's a lot of fuck shit happening at the Supreme Court. And I have wanted to write this book for a while, basically ever since I clerked at the Supreme Court almost 15 years ago. And I think the basic through line is they are ruling for the rich and reactionary elements of American society based on this idea of victimhood. They are imagining themselves and other people who are part of the modern Republican coalition as the victims, and then using that idea to victimize basically everybody else.
- [10:48]
Sammy Sage
Is this different than how they have done this in past decades? Like, is this a. A phenomenon of, you know, the 2000s, or is this something that has been going on the whole time that maybe people didn't realize that the court wasn't as official as maybe we thought?
- [11:04]
Leah Lippman
Yeah. So I think that the Supreme Court, basically, throughout American history, has always been a little small c. Conservative. It has always been political in important ways and has not exactly been a beacon of progressive light. That being said, I think things basically jumped the shark around the time of Bush versus Gore, when they decided, let's just make George Bush president and go all in and yolo. Because after that, it all went way downhill.
- [11:34]
Sammy Sage
That's my perception of it. I can't tell if that's because I was like, 10 at the time. So it was like, you know, oh, this. My awareness, you know, happened to coincide with them jumping the shark. But, yeah, it does seem like that was a pretty important moment. And when, you know, let's just talk about that case for a second, because they didn't, quote, unquote, decide the election there, but they did say, stop counting the votes. Do you think they would have done that if their preferred candidate had been ahead or their less preferred candidate had been ahead?
- [12:07]
V. Speer
No.
- [12:07]
Leah Lippman
As I kind of describe in the book, you know, as the reports are coming in, the returns are coming in. Justice Sandra Day o' Connor, who wanted to retire, saw this, saw Gore ahead and said, oh, no, this is terrible. And then they get the opportunity to basically weigh in, and as you say, they tell the state of Florida, stop the count. Twenty years before, Donald Trump was screaming the exact same.
- [12:30]
Sammy Sage
When he was doing that, I was like, wait, this is. He's actually using the precedent of Bush v. Gore, which. The one thing I remember about that is that they said it could not be used as precedent.
- [12:40]
Leah Lippman
Right. Yes, they did say that, but then it turns out they were kind of kidding because another part of Bush versus Gore that Donald Trump and his allies pick up is this wild idea of the independent state legislature theory. I'm putting that in air quotes. This was the theory that Rehnquist, Scalia, and Thomas wrote separately in Bush versus Gore to offer. It's the idea that state legislatures and state legislatures alone get to set the rules regarding federal elections so state courts may not be able to enforce state constitutions and whatnot. And that was kind of a twisted version of the theory that Donald Trump offered when his ally suggested in 2020, actually, state legislatures can just throw out the votes and select him as president because they get to decide these federal elections.
- [13:28]
Sammy Sage
When we get into these, like, little intricacies, sometimes I feel like I'm like, but wait, we're talking about votes and we're talking about counting, so don't we just. Like, who cares, like, about the specifics of that? Like, we're just gonna count 1, 2, 3, 4, and then we're gonna count. Who has more? Like, where is it? Why don't we get so far from that just basic concept? Like, how have we. How have the courts come to a place where it's not just like, just fucking count them, bitch. Like, it's just so obvious.
- [13:58]
Leah Lippman
I think this is honestly part conservative grievance mindset, and in many ways, the Supreme Court offered it before Donald Trump picked up on it. So, as I note in the book, you know, at the 2020 rally, Donald Trump is screaming about how all of his supporters are victims, as if, frankly.
- [14:14]
Sammy Sage
We did win this election.
- [14:15]
Leah Lippman
Right, exactly. Because democracy is the aggressor here and the problem. And Justice Scalia was offering a similar idea back when the Supreme Court blew up part of the Voting Rights Act. Now, more than a decade ago, during the oral argument in the case of. He was whining and ranting about how it was so unfair to Republican legislators because if they voted against the law, they would lose an election. And it's like, my God, you literally just described democracy, and you think that's a problem and a reason to strike down the law.
- [14:47]
Sammy Sage
Yeah, there's a lot of that reasoning in here where, you know, you can just tell, like, they kind of say that they're starting at a particular conclusion. Like, they write it down and like, this is what's. So. Where. I feel like the culture of the court and how it's not. Not like it hasn't really seeped into American awareness. And like, the. Because the court is supposed to be insulated, that is like, kind of a. An intention. It's supposed to Kind of be small C conservative in some, you know, some sort of procedural sense. But can you kind of describe the atmosphere of the Court itself? Like, is this court different than past ones? And what they will, like, seriously write down and be like, no, I'm not kidding. Like, I'm really writing this.
- [15:34]
Leah Lippman
Yeah. So I think Sam Alito is a whole vibe, and he has definitely taken it to another level. But I think the bigger picture is the Supreme Court has become way more insulated and removed from the public than it has been in the past because the Constitution tried to set up a balancing act between independence and accountability. Of course, the justices aren't elected. They're not subject to reelection. On the other hand, they're selected by politicians. And Congress has a lot of control over what kinds of cases the Court can hear. So now we have gotten to a place where the justices basically view themselves as kings, where Justice Alito is totally comfortable announcing to the Wall Street Journal, of all places. You know, he said, I know this is a controversial view, but I'm going to say it. Congress has basically no power over us. Congress has no authority to regulate the Supreme Court. And I think the Court became so unaccountable because of things like partisan gerrymandering, which they allowed, that made the House of Representatives more removed from the people because of things like voter discrimination and voter suppression. It is now easier for presidents to lose the popular vote and win the presidency. Senate malapportionment functions the same. And so the Supreme Court became so further removed from the people, in part because of its own actions, that the justices now feel free to let their freak flags fly all over the pages of the US Reports.
- [16:59]
Sammy Sage
That's the strange thing to me. And because they're, you know, these, like, esoteric academic things, I don't think people are seeing them. But if they were, like, as written as publicly as Donald Trump's tweets, I think people would realize, like, how ridiculous it is.
- [17:14]
Leah Lippman
Yeah. So the Court, I think, makes itself difficult to follow. You know, they do not, for example, tell us when they are going to release particular opinions. So we never know when to prepare ourselves to actually make time to read that.
- [17:27]
Sammy Sage
And Rep. TV is coming every day, you know.
- [17:30]
Leah Lippman
Exactly. Yeah. And they write them in these long, dense opinions. But buried in there is this insanity, like when Justice Alito, together with Clarence Thomas, writes about the fact that you can no longer say that marriage is between a man and a woman because people just said that. Right, Exactly. He's literally been saying that for over a decade. And what he means is people are criticizing him for it, which, you know, for a bunch of free speech warriors screaming about cancel culture, they are sure quick to shit all over speech.
- [18:08]
Sammy Sage
Yeah. That's been kind of the, the through line of, of the whole quote unquote, can't, you know, anti cancel culture thing is it's like, no, like, you're not canceled. Just like this market is not the market for your ideas.
- [18:20]
V. Speer
It's.
- [18:20]
Sammy Sage
We're not buying them here. So that's okay. You talked about minority rule. You mentioned partisan gerrymandering and how they allowed that. I think that this is one of those things that doesn't get enough play in public as just something people really understand. Because, you know, this is where people feel like, well, the Democrats had a trifecta. How do they. How did they not do anything? How come nothing ever gets passed? And I think that if people really understood, like, these mechanics and the fact that the Democrats won't just break them the way the Republicans will.
- [18:52]
Leah Lippman
Yes.
- [18:53]
Sammy Sage
Which, I mean, can't even get into that. I think this is a key message to crack. How do you make this, like a more salient thing that people can really understand?
- [19:05]
Leah Lippman
Yeah. So I think part of the goal of the book is to try to inject more of the court into the broader culture so it becomes more part of progressive politics and Democratic politics. I think people, as you suggest, want to believe if Democrats win an election, they're just going to be able to fix this in one fell swoop. But the reality is the conservative legal movement spent over five decades targeting the court and taking it over, where they would get to a point where the Court is literally weaponized against democracy. And progressives need to dig in for the long haul and get used to going out in elections and organizing again for the foreseeable future with an eye toward the Court.
- [19:48]
Sammy Sage
Well, this is why when we first signed on, I think before we were recording, I was saying, I think that you need to be starting like a fun version of above the Law or SCOTUS blog, because people are not seeing this. Like, I just don't think it's in their language. And yet in this book, you have actually translated it into references that I actually think other people will understand. Like, you know, just to share with, you know, the audience. There's just all, you know, how do I describe your chapter on Citizens United and money in politics is called There's Always Money in America, and it's based on Arrested Development. There's Always Money in the Banana State. And. And there's Just all these really funny references. And you can't. The gay marriage chapter is called you can't sit with us and basically trying to marginalize gay people. And there's just so many good references. And it's like, if people could actually see it like this, they might. They might see it. They might be like, oh, there's like a whole thing here. Like, you know, you could. You know, we have crypto influencers.
- [20:51]
Leah Lippman
We could have Supreme Court influencers, law influencers.
- [20:55]
Sammy Sage
Yeah, there are. They're just all working on Blake Lively and Justin Baldoni. But that's why you gotta put the, Put it in these references, because people will. People will show up.
- [21:05]
Leah Lippman
That is part of the goal of making all of the different chapters pop culture motifs and ridiculing the justices and exposing them for being as absurd as they truly are. Because the justices really are being like Regina George when it comes to I can't have a lesbian in my pool party Janice. And that is the vibe that I think they should be assuming associated with.
- [21:26]
Sammy Sage
It is that is literally the idea behind, like, the cake baker thing. It's like, I. I can't have the request for a cake. It's like, okay, no one's forcing you to make this cake. Like, you don't have to have the business. It's just weird.
- [21:42]
Leah Lippman
Like, you can't fucking get out of bed because you are gonna make a cake for a same sex wedding. Go to therapy. Why are you so triggered?
- [21:51]
Sammy Sage
Yes. And are you being coerced to make this cake? Like, who's making you?
- [21:55]
Leah Lippman
Civil rights law, which apparently is now unconstitutional, like, saying you can't discriminate against LGBT individuals is now ranked discrimination against the people opposed to LGBT equality. It's just nuts.
- [22:08]
Sammy Sage
Well, this is one of those things where maybe you can shed a light on, like, the, the idea of, like, case shopping. Because I think about the cake thing and I'm like, okay, if I had an issue with make. If I were a baker and I didn't want to make a cake for someone, I would just be like, I don't have room in my. I can't. I don't have time, like, in my schedule. I'm full. And it would have nothing. You know, I could think that. I just don't, like. I don't know, I don't like the date. I don't like their names, like, whatever the fuck it is. So these people weren't just rejecting making the cake so that. Because they didn't want to, like, make the cake. And, like, then it was over like they were part of an activist.
- [22:47]
Leah Lippman
Yes.
- [22:48]
Sammy Sage
Strategy. So can you talk about how, like, these cases come up, how they come up with example cases and what that process looks like and how long it takes?
- [22:58]
Leah Lippman
Yeah, I mean, I think this process really began with a marriage equality decision in Obergefell vs Hodges. Because in that case, when the Republican justices in dissent were ranting and raving about marriage equality, they suggested the decision would violate some people's First Amendment rights. And that was basically a call, hey, file some cases challenging civil rights for LGBT individuals and raise a First Amendment claim. So what happened there spawned a cottage industry of First Amendment challenges to civil rights protections for the LGBT community. And over time, the Supreme Court took some of these cases, signaled what kinds of cases it was especially interested in. And that generated the most recent decision in 303 Creative, which was this wedding website designer who said she didn't want to make a wedding website for same sex weddings. And that case was filed by ADF Alliance Defending Freedom. And it was really generated because at the time the case is filed or before the case is filed, this company isn't a wedding website design company. It's a website design, and then it gets refined into, oh, this is a wedding website design company that really wants to celebrate religious views of marriage. And they refine that case into the one that Justices wanted to hear.
- [24:15]
Sammy Sage
Can you talk about when justices signal. What does that mean? Is it legitimate? Like, is that norm? Is that. Has that always been something they're doing? Or is that like a really activist tactic?
- [24:26]
Leah Lippman
Yeah, so this is definitely new. So in the chapter about arrested development and the justices viewing themselves like kings, I talk about how the Supreme Court didn't always have control over what cases it would hear. That's actually a modern development that didn't happen until 1925. So after the Court developed the authority to hear its own cases, then it.
- [24:50]
Sammy Sage
How'd they get that?
- [24:51]
Leah Lippman
So Congress technically gave them the authority at the urging of William Howard Taft, former president and Chief justice, who always aspired to be Chief justice of the Supreme Court. And once there, decided to make that position as powerful as he could.
- [25:08]
Sammy Sage
Interesting. Underrated. I'm going to Google him later a little bit about that. So, okay, so how did they start to be more, like, active in signaling and deciding their cases? Yeah.
- [25:21]
Leah Lippman
So after Congress gave them the authority to pick what cases they could hear, the Supreme Court said, not only can we pick what cases we can hear, we get to decide what questions in those cases we are interested in opining on. Then once they Assert that authority, they start writing into opinions or sometimes statements accompanying decisions not to hear a case. By the way, I'm super interested in this issue and flagging it for litigants. And this is all happening in this conservative legal movement ecosystem where, okay, a justice says this, let's write some law review articles about this. Let's get the conservative public interest organizations looking for clients and developing it. And sure enough, it all happens.
- [26:02]
Sammy Sage
Right. And there's funding for all this.
- [26:04]
Leah Lippman
Oh yeah.
- [26:05]
Sammy Sage
Okay. So you wrote, just going back to this idea of publicizing it and getting it more into the zeitgeist to talk about the court and what they're doing and maybe have them viewed as a little less serious. So you wrote that publicizing the court's behavior is a good idea and cited an example from 1935 where the public did caught up catch on and they were protesting the court and then the following year they were protesting the court because they didn't want to basically like uphold New Deal policies. Then the next year FDR threatened to pack the court, which led them to uphold the law, basically. So let's say you were to do this now or deploy that tactic now, how would you go about that? Like, I mean, maybe Biden could have packed the court, you know.
- [26:53]
Leah Lippman
Right. Yeah. So I don't think that calls to pack the court or just publicizing the court is a long term structural solution. I think it is the first step toward a structural solution in part because the Supreme Court is deciding so many different issues and fucking up so many different areas of law. This isn't like the New Deal system where the question is, is the Court going to prevent the country from getting out of the Great Depression. Now the question is basically, are the justices going to repeal the entirety of the 20th century since maybe send us back to the dark ages on a range of different topics and so sustaining that level of focus and outrage on so many different issues over the length of the Republican appointees service, which could be decades, I don't think that is sufficient to keep these guys from driving the country off a cliff. So I think we need to build public attention and outrage to create a base and create incentives for democratic politicians the next time they are in office to adopt more structural reforms that would make the Court more accountable to the people, make the court more representative, and not let these yo hoes right, keep on doing whatever they want.
- [28:06]
Sammy Sage
So what are some of the bigger structural things that can be fixed or that we should try to fix?
- [28:14]
Leah Lippman
Yeah, so one of the things is what we Were just talking about maybe modifying the Supreme Court's authority to pick all of the cases that they hear or decide what issues in a case they hear. You can also limit their authority to strike down laws like the Voting Rights act or a federal law that codifies abortion rights. You can also increase the number of justices on the Supreme Court so it's not taken over by far right fringe conspiracy theorists. Those are just some of the things you can do. There's also term limits, you name it.
- [28:50]
Sammy Sage
This is hard because you could try to limit the court, but like who's do. Who's deciding that and why are they deciding it? Is that like, is that actually what we want at this time? My feeling has sort of become like nothing is getting fixed till we get money out of politics and undue Citizens United. And until there's some sort of like ethical, anti corruption, actual initiative. Yeah, nothing will change. So what's like the fastest timeline we can make that happen on?
- [29:24]
Leah Lippman
Yeah, well, so. So this is an issue where I agree with you. Money in politics, dark money in politics is this highly corrosive force that makes democracy all the more difficult. But this is also an issue that the Supreme Court itself has enabled. And I don't think you can get money out of politics without changing the Supreme Court, because these are the guys that dismantled campaign finance regulation on the ground that that was unfair to the poor mega rich who just so desperately wanted to drown out everyone else's political spending. So I think what is the timeline for doing that? The timeline for doing that is building a constituency within the democratic base who understands not only do we need to get money out of politics, but in order to ensure money stays out of politics, we also need to limit the authority of the Supreme Court because these guys are not going to let us do it.
- [30:17]
Sammy Sage
This Supreme Court, exactly like.
- [30:19]
Leah Lippman
Exactly.
- [30:19]
Sammy Sage
Okay, let's say they did want to change the makeup of the Court or put term limits on. Is that just a matter of Congress being like we're doing it?
- [30:25]
Leah Lippman
Yeah. So Congress can, by simple legislation, change the number of Justices on the Supreme Court. The number of justices on the Court has varied over history between 6 and 10. The Constitution does not fix the number of Justices. Changing term limits is something Congress could do for future appointments, but it can't, I don't think, at least retrospectively apply term limits to the justices who are already on the Court.
- [30:50]
Sammy Sage
Well, the president can't just send people to a foreign prison. But. So I don't know what can't means.
- [30:58]
Leah Lippman
Fair point. And now that the President is above the law. Right. And has immunity. You know, hashtag yolo. Let's just do it and be legends.
- [31:06]
Sammy Sage
How does that play in, like, because if he has immunity, you know, my question is, like, how does he not do more? I mean, he's doing really bad stuff, but it almost feels like that has faded into the background as, like, an excuse.
- [31:22]
Leah Lippman
Yeah. So immunity is just a perfect example of how I think the court is using law to enable lawlessness. They're discovering these, quote, doctrines that mean you don't actually have to follow federal law or the Constitution. Now, I think the reason why the immunity decision hasn't swallowed the law entirely is because that decision said you can't criminally prosecute presidents, but it didn't say you couldn't sue the president or the president's subordinates for injunctions that block them from carrying out illegal policies. Lawyers always stay tuned for that decision because some, some Trump appointees are floating it in the lower courts that maybe you can't do that either.
- [32:02]
Sammy Sage
That's very Stephen Miller esque. So if Congress does, in theory, have this power, you know, Mitch McConnell would be using it if he. If he needed to. Why is there no, like, message? And maybe this is just the question I have in general. Why is there no attempt by the Democratic caucus to be like, here's a message we can unite around and actually campaign on? That is not. It's not right or left. It's simply, we are going to strengthen the Constitution. We are going to strengthen separation of powers. And it's about, like, fairness. Like, where is like that? Like, I just feel like they're never making use of the powers that they could have.
- [32:45]
Leah Lippman
I am at a loss for why Democrats are unwilling to campaign against the court, particularly this court. I mean, these justices are accepting untold amounts of grift while they are enabling billionaires to spend unlimited amounts of money overwhelming the election and not allowing the President to cancel people's student debt relief. That sounds like a pretty bad situation that you could sell to people. Why aren't Democrats doing it? One, they're afraid of their own shadow. Two, too many of the geriatric Democratic Caucus grew up at a time where they associate the Supreme Court with the Warren Court, which was a uniquely progressive court in American history. And so they are too afraid to challenge the Supreme Court because in their imagination and their mind, that Warren Court is the essence of the Supreme Court and they just refuse to acknowledge reality.
- [33:35]
Sammy Sage
Okay, well, when I was a child, the essence of Nickelodeon was Legends of the Hidden Temple. But I'm not still watching that today, so I don't really understand. Like, okay, that's nice that it was like that then. It's not like that now.
- [33:50]
Leah Lippman
MTV had TRL when I was watching it. Pretty sure that's no longer the main program there.
- [33:56]
Sammy Sage
Same.
- [33:56]
Leah Lippman
So we are capable of Bayesian updating in a way that it turns out senior Democratic leadership is not.
- [34:02]
Sammy Sage
It's true. It's really kind of wild just to close out. I love this book. What is the most ridiculous thing that this court has written that you can, you know, list for us here? Like, it's just, what's the craziest that maybe people don't know about? You know, we all know about Bush.
- [34:16]
Leah Lippman
First Gore, but yeah, that's a hard one. If I had to pick. Okay, so I would say something that Justice Alito wrote in his dissent in the marriage equality decision, Obergefell versus Hodges, when he said that marriage equality facilitates the marginalization of religious and social conservatives and calls to mind the treatment of gays and lesbians in the past, which some might think about turnabout is fair play. What he is saying, marriage equality is the same as criminalizing consensual sexual intimacy between adults of the same sex. Right? Declaring gay men to be sexual psychopaths, not allowing LGBT individuals to marry, adopt children and whatnot. Like that is what he is likening marriage equality to. The persecution complex is just un fucking real. Like, they always make it about them. It's not about you.
- [35:11]
Sammy Sage
It also doesn't make sense because if marriage were contagious like that, then why isn't his marriage contagious? Why doesn't it work the other way if it works his way?
- [35:26]
Leah Lippman
I think he realizes he's just not cool enough. And he looks at the gays and he's like, okay, those guys are awesome. Everyone's gonna want to be like them. And it's a deep seated insecurity, if I had to guess. No, I don't know.
- [35:40]
Sammy Sage
No, I know what you mean. That's really the whole party at this point, point, the whole movement for the past several years. Well, Leah, this has been so much fun. You should be on TV more and podcasts more and generally you should just be, like, talking in public all the time. Truly, everyone needs to hear from you. And your book is awesome. Everyone here, everyone listening should or watching should read it, buy it. It is just. It's really, really, like, eye opening and fun. So thank you so much. I hope you. I hope it does incredibly well and I hope that your Mission to make the Supreme Court more prominent in its ridiculousness is a success, and I hope to help you with that.
- [36:21]
Leah Lippman
Thank you so much. That means a ton.
- [36:22]
V. Speer
Sammy, you did a good job on that interview. I mean, I gotta say, it held my attention. And I am not a person who's like, ooh, let me dig into listening to the law. She was funny. She was clever.
- [36:31]
Sammy Sage
She's very interesting.
- [36:33]
V. Speer
You'd have to be right. Smart people are funny.
- [36:35]
Sammy Sage
But she's. She's just very, like. She's the kind of person who should be explaining this to people. Totally. Probably on the Internet as she is. But, you know the best. People hate talking to camera.
- [36:47]
V. Speer
That's true.
- [36:47]
Sammy Sage
It's very. Sorry. I know we. We do it, but, you know, I hate it. Although I'll never forget when we were at the DNC and you and Alex Perlman were both trying to, like, record your videos in one take, and you, like, both kept up, and I was like, oh, I thought you guys just do this, right? Every time, the first time. And I was like, oh, so it's not just like that for everybody. And I'm not like. Because I also need to do thousands takes. Or like, you got. You're distracted. You're like, oh, I looked in the wrong direction. And okay, I felt better after that.
- [37:18]
V. Speer
I get, like, a weird slur sometimes when I'm doing videos. I don't know why. I think my brain is, like, going faster than my mouth can. And then I'm like, the democracy, like, and then you gotta do it again because you sound ridiculous. Yeah. Yeah.
- [37:29]
Sammy Sage
I honestly think looking at yourself, it's like you're. You're getting feedback like you're doing it, and then you're, like, getting feedback of yourself doing it, which makes it hard to move the conversation forward. Yeah, it's easier when I'm just looking at you and talking.
- [37:42]
V. Speer
We should not be looking at ourself as much as we are. I mean, humanity was not made to look in mirrors or cameras nearly as much. We were supposed to see our reflection, like, two or three times in our life in a. In a pond, reflecting.
- [37:54]
Sammy Sage
Great point.
- [37:55]
V. Speer
We were not supposed to.
- [37:55]
Sammy Sage
There's no naturally occurring mirrors.
- [37:57]
V. Speer
No.
- [37:58]
Sammy Sage
In nature.
- [37:58]
V. Speer
It's against nature.
- [37:59]
Sammy Sage
Other than water itself.
- [38:01]
V. Speer
Well, what you can do if you want to fight God in nature, Listen to Leah Lippman's podcast, Strict Scrutiny, and read her book Lawless. And we will see you next time. Until next time, I'm V. Speer.
- [38:15]
Sammy Sage
And I'm Sammy Sage.
- [38:16]
V. Speer
And this is American Fever. Dream.
- [38:18]
Sammy Sage
Good night.
- [38:26]
Leah Lippman
Betches.