A (4:09)

But am I wrong in sensing, and maybe I this is just visceral on my part, that back when the president tapped Garland, there was a sense that, hey, Kelly Ayotte could lose her race over this. You know, hey, Ron Johnson could lose his race over this, that this would be an issue that really enraged voters. And now we're almost seeing Senate Republicans, some are in fact openly running on the proposition that they obstructed Garland. So did this flip in a way, did this go from being something that was disqualifying in a Senate run that has now become, hey, we managed to block Obama's nominee vote for us, or is that not happening out there?

C (4:51)

No, I think that overwhelmingly the argument that the Senate needs to do its job and act and the fact that the Senate has not done its job is a powerful argument that is one that resonates with people across the country. And I think that those senators who are running and are in close races are not comfortable with the idea that they have to defend this position. And in fact, you mentioned Kelly Ayotte, you saw just recently her come out and try to massage or suggest that she would give different consideration after the election. So I think that this is an issue that has contributed to a pervasive sense that the Republican majority in the Senate has failed to execute its basic responsibilities. Now, this is a unique election and there are a lot of issues that have contributed to that. But I think that this absolutely has had an impact on the pretty clear sense that the dysfunction in Congress is not what typical people expect when they elect people to positions of power. And I don't think that this is something that any of those folks on the front line out there on a day to day basis are happy to be defending.

A (6:14)

Neil, I guess I want to ask you the corollary question that just has to do with how folks are thinking about the court in this election. And I think maybe we can stipulate or maybe you dispute that there is a sort of enthusiasm gap and that Republicans for decades have done a better job of organizing around the composition of the court and messaging that this matters, that, you know, for whatever reason, Democrats tend to rank the court far lower on their list of things that they vote about. Is it your sense that that has changed because of this open seat, or is it your sense that Democrats continue to say, you know, number 17 right after the environment, that's where I put the composition to the court? Or has the sort of existential question about whether the court is broken and Republicans in the Senate are responsible, has it broken through for Democrats in this election?

B (7:10)

So, Dalia, I'm not sure that I would necessarily accept the premise, but in any event, for this election, I would say that this Supreme Court nomination has become a significant issue for Democrats and particularly those who are following the election carefully. I think in the last several years we've seen a series of quite significant cases come out of the Supreme Court that impact the lives of ordinary Americans. And I think the result of that is that more and more people are recognizing the importance of the Court basically to their daily lives, to their values and to the way that we go about the political process. And so if anything, I think that there is much more attention by Democrats and certainly as well as Republicans on that outcome, who the president is going to be and who has the opportunity to get the next confirmation of a nominee to the Supreme Court. You know, having said that, the Republicans in this case have acted in a way that is unprecedented in history. They are taking the position that the people should decide and there should not be a nominee in the last year of a president's term. I must say that that is complet unprecedented. There have been a number of nominees in the last year of a president's term going all the way back to President Washington. The Republicans and conservatives always like to talk about the Founding Fathers. Well, in the Founding Fathers era, there were nominees to the Supreme Court during the last year of a president's term and during an election year. And indeed, as we know, Justice Kennedy was confirmed in the last year before an election when President Reagan was the president.

A (8:41)

Neil, I think my follow up question is, and I know the White House has been messaging this really hard and I know, you know, Joe Biden has been out talking about this, there's been so many events around the vacancy as the court term has opened. Is it complicating to message this when the court itself institutionally keeps insisting that it's doing just fine and that, you know, by and large, I think with the exception of, you know, I think now Justice Ruth Bader Ginsburg has come out and said, no, this is, this is not good. And I think Elena Kagan said something softer but similar. But insofar as there's not someone at the court who's saying we only took IP cases this year, help, we had to bat away immigration, again, help, what does that mean? That in some sense, when the White House speaks on this, it speaks in the absence of a real voice from the court itself.

B (9:36)

So, Dalia, I think that's interesting and I think about it in the following way, which is that and I'll sort of come back to your question in a second. I think one of the impacts of what's happened in the Senate Republicans obstruction of this that really causes me concern is an impact on the institution itself and whether that institution can perform its function. It has a critical function to render decisions in cases. And obviously we saw last term, hopefully we won't see this term because Judge Garland will be confirmed quickly, but we saw the court essentially unable to fulfill its responsibility. And I think that that has an impact on the court. I clerked in the court a lot of years ago, October term, 1979, and I have an enormous love for it. And I have to think that part of what's going on is the justices do not want to particularly acknowledge that having gotten caught up in the political process has an impact on them as an institution. So what they say publicly and what might be happening up there I think may be somewhat different. I think if you look both at the number of four, four cases and really critical issues last term, I think that's a reflection of an inability to do their work. And actually, Dolly, I'm sure you follow this, but as you just said, if you look at the cases they've accepted for this term so far, they're well below or behind previous years. And although there are certainly some important cases, they're not the level of important cases that you usually see granted by this time in a term. So the fact they're not talking publicly about it, I don't think is a reflection. I think it's a reflection of their concern about the impact of being drawn into the political process, which is not good for the Supreme Court as an institution. And I worry about the impact of what's happened in the last several months on the court as an institution.

A (11:23)

Neil, I think the follow on question, because you've raised this question of the politicization of the Court is that, and I asked this question to Tom Goldstein in the last episode, is there's an awful lot of Americans, including American progressives, who say this is awesome. The court is now minimalist and it's humble and it's doing very little. And that is as it should be. The court has wildly overreached in the last few decades, and this is a good situation on the left and the right to have the court back off and let political processes decide things once and for all. And that's, I don't think that's a partisan argument. I've heard it made across the boards that maybe the single best thing we could do is kneecap the court and let politics spread, sort the rest of it out.

B (12:11)

So I don't agree with that argument. I think, as others have said, and I think Justice Kagan actually said this fairly recently, there are an odd number of justices for a reason, and you could have an argument about whether the court has or has not been too intrusive in various different areas. That's a separate question. But I think the issue about whether it has the full complement of justices in order to do its job is a very different issue. The result, if you think about it, and I think we're starting to see a little bit of this, obviously I was heavily involved in the immigration executive actions, and ultimately, as a result of the district court's determination to enter a nationwide injunction and affirmance by the fifth Circuit, basically that has become the law of the land, at least in the short run, because of a 4, 4 court. And so we're basically in a situation where the Fifth Circuit has made law, if you will, and then it's been affirmed by a 4, 4 court. I just think that that's inappropriate. There should have been an occasion for the Supreme Court to make a determination on a nationwide basis. And as a result of being hobbled and being justiced down, it was unable to make those determinations. There were a series of those cases that took place in the spring. So I think the question you ask about sort of the role of the court and whether it's been too involved in the political process is a debate that's happening. And I recogn but I think you have to separate that from the issue of whether or not the Senate Republicans have prevented the court from having a full complement and as a result not making decisions not because they've decided not to take cases or the like, but because they've been hobbled in their ability to do so. I think those are very different.

A (13:52)

Brian, I think I want to ask you the question that I get asked probably most of all by readers. You know, I wrote a few weeks ago that, you know, I thought the President played it straight. He opted to go for, you know, the person with impeccable credentials that he genuinely believed Republicans could live with. And you know, a lot of his liberal critics, the minute the nomination was announced really balked at that and said this is Obama imputing reasonableness to the other side. This is how he gets worked every time, you know, he thinks he can do a deal. There's never a deal. And I've heard a lot of flack from progressives who say, and who said even at the time that Garland was put up, you know, if the President had nominated a 48 year old African American woman, there would have been a real rallying around that person. That person's name would be in the newspaper all summer long. What do you say to those people who just think that the play was noble but wrongheaded?

C (14:54)

Well, I guess I'd say a couple things. The first is I think the President feels very good about what he did here and if he had the opportunity to do it over again, he would do the same thing. And I think that this reflects a, I think it does reflect a broader approach on the President's behalf. And it's one of the reasons why I've been very proud to be able to serve him is that very early on in this nomination, after Neil let him know that Justice Scalia had passed and that there was going to be an opportunity to or an obligation to fill the seat, his posture was, I have a view on this. I want to play it straight. I want to find the best possible person for this role at this time. So that's point one. But point two is I also think that this is an example where the best policy and the best decision making process also makes the best politics. Because one thing that we were able to establish very early on by dint of Judge Garland, who he is and his credentials is that this is a person of unimpeachable qualification who is absolutely qualified for this position. And that's very important because the conversation subsequent to that has not been about, is President Obama playing politics with the court? And has this now become a just incredibly partisan issue that every side is just using as a political football? And instead, the argument has been, why won't the institution that is charged by the Constitution to do their job? Why won't they do their job? And I think that if you look at the polling, it turns out to be the case that that's a very powerful argument. It also happens to be the argument that I think is the best for the institution at this moment, particularly during this election and with all of the uncertainty and anxiety that's going on in the country, that having a nominee like Judge Garland out there and being able to make the case that this is the right thing to do for the country and it's the right thing to do for the institution is important.

B (17:01)

So.

C (17:01)

So I think that the president feels quite comfortable with the approach. He's not in any way naive. He's been at this a long time. And so we're obviously very attuned to the politics. But I do also think this is a place where good policy also makes good politics.

A (17:16)

So if I were to paraphrase, I think what you're saying is, and you'll certainly tell me if I'm getting it wrong, but that more or less by sort of taking the attention off the nominee beyond the fact that he's qualified and rendering him kind of all but invisible, the upside is we're forced to have a debate, an institutional debate, and that. That is one that you think is either more worthy or winnable. Is that fair? Yeah.

C (17:43)

The friendly amendment that I would make is. It's not invisible. It's unimpeachable that by having a nominee who everybody. There isn't any serious argument out there that Judge Garland is unqualified. And frankly, there is widespread support among progressives and among conservatives that he would be a great Supreme Court justice. And I would also say that his support among progressives is quite strong. So I know the argument that you put forward is one that obviously we have heard, but we have also heard and seen vocally and publicly, a lot of support among progressives and among progressive members of the Senate, validating that Judge Garland is precisely the kind of nominee that they would be interested in voting for and that the country would benefit from right now.

A (18:37)

Tell me, and this is just the last question, and either of you can take it or both of you can take it. But I think an awful lot of listeners when they, you know, on a 1 to 10 scale of sleeping like a baby and 10 being, you know, I wake up at 3am with my heart pounding. I think that 10 scenario is a Bush v. Gore style meltdown over voting that goes to a 44 court in November. Where do you each locate yourself on that 10 scale in terms of how much you worry about that and how likely that scenario is?

C (19:15)

Well, like Neil, I get paid to worry about almost every potential downside scenario. This is not one of the ones that is in the top tier of things I worry about. But I'll tell you what I do worry a lot about is that the impulse that led to this unprecedented and historic obstruction is amplified rather than reduced in the country because there's already some talk out there among conservatives that suggest, well, depending on what happens in the election, maybe we could block for four years or maybe we could block for even longer. And I think that whatever the impulse has been to try to stand behind Mitch McConnell's non principle principle between now and the election day, if cooler heads don't prevail and if the institution of the Senate doesn't demonstrate that it actually can move forward with a nomination, particularly of somebody who's as unimpeachable as Garland. I do worry about what the consequence of that will be not in the very near term, but over time because we're at a moment right now in our politics where extremes are amplified and where there is a tendency to think that things are unthinkable until they occur. And so I think that this next period is very important and pivotal in terms of avoiding really catastrophic long term consequences.

A (20:58)

Brian Deese is a senior advisor to President Obama. Neil Eggleston is White House counsel. And both of them join me to talk about the Merrick Garland nomination. Gentlemen, I thank you so very, very much for your time today.

B (21:11)

Thank you, Dalia.

C (21:11)

Thanks for having us.

A (21:13)

This past Tuesday, the Supreme Court heard oral argument in a case testing whether judges can inquire into allegations of pretty extreme racial bias in jury deliberations. Now, for the most part, legal rules prohibit judges from piercing the privacy of these sacred jury deliberations. But in this case, the question for the justices is whether such extreme bias was evinced in these specific jury deliberations that the justices need to just step in now. Joining us to discuss his oral argument on Tuesday, Representing criminal defendant Miguel Angel Pena Rodriguez is Jeff Fisher. He is co director of Stanford Law School, Supreme Court Clinic, and a law professor at Stanford. And, Jeff, I open by saying welcome to Amicus.

D (21:59)

Thank you so much.

A (22:01)

So can you please start by telling us if that is accurate, if the interests that I just laid out there, you know, on the one hand, we have these jury deliberations. We want them to be sacred and private. On the other hand, we want there to be a fair trial. Those are the two interests at stake here.

D (22:17)

At a high level. Yes. The tradition in our country, which we borrowed from England, has been to keep jury deliberation to some degree private. But I do say to some degree because from its inception, we've always had exceptions to the rule of jury secrecy, both in terms of limited circumstances where jury testimony has been available to, as lawyers say, impeach a verdict. In other words, to look into the validity of a verdict. And also in the sense that jurors have always been allowed to talk to their friends, their family, even the press afterwards. So there's been a limited rule of jury secrecy. And that's one of the reasons why we say that even though there are significant interests on the other side, they're not strong enough to override the countervailing interest in fighting against racial bias that we identify here.

A (23:05)

Okay, so let's step back at the most granular level and tell us about your client and what are the facts of his conviction.

D (23:13)

So Mr. Pena Rodriguez is a horse trainer from Colorado. He was accused in 2007 of attempting a sexual assault of two teenage girls in a bathroom in Colorado at the horse track. He has, from the moment these allegations were put forward, denied that it was him and said that the girls must have identified the wrong guy because of the quick and harried circumstances under which the events took place and the suggestive show up the police arrangement afterwards. But fast forward to the important part. For our purposes, he went to trial. And after trial, where the jury came back with something of a compromise verdict, convicting him of a couple of misdemeanor counts. His lawyer learned from two jurors who stayed afterwards that another juror in deliberations, who's known in court papers as Juror HC those are his initials, exhorted the others in the jury room to vote to convict. And I'm going to quote here, because Mexican men do whatever they want with women. And quote, when he was on patrol, he was a former police officer. When he was on patrol, nine times out of 10 Mexican men were guilty of assaulting women because they have bravado, et cetera, et cetera. And then the other important piece of information by way of the facts is this same juror exhorted the others to disbelieve Mr. Pinha Rodriguez's alibi witness who testified at trial that he was with him at the time of these events, on the ground that the alibi witness, who's also Hispanic, was an illegal and therefore you couldn't believe anything he said. As it happened, that witness was a lawful permanent resident of the United states, just like Mr. Payne Rodriguez. So that's how the case got set up. And he asked for a new trial on the ground that his Sixth Amendment right to an impartial jury had been violated. The Colorado courts have rejected that argument and that's why we find ourselves in the Supreme Court right now.

A (25:07)

Now, so Jeff, explain for those of us who just can't fully understand why it is that there is this long standing interest in protecting the sanctity of what goes on in the jury room. I mean, it seems, I think I understand why we believe that. But can you help unpack why this seems such a crucial, crucial interest?

D (25:31)

Well, I'll just tell you what the state of Colorado and the federal government say in their briefs, which I think summarizes the state interest quite well. And there are a few related interests. First, they say that there's an interest in full and frank discussion inside the jury room. And if jurors arguments inside the juror room are going to be subject to second guessing after the verdict comes back, people are going to hold back or somehow refuse to make certain arguments in the jury room. Next they say that we have an interest in protecting jurors from harassment after trial. We don't want lawyers barraging jurors with questions and trying to, you know, pluck out of them perhaps manufactured reasons to upset a verdict. And then finally they say there's, there's an interest simply in finality that a criminal case must come to an end sometime. And once we have a verdict in place, case we should be very hesitant to second guess the legitimacy of that verdict just because of the cost on the system of having a new trial and that sort of thing.

A (26:36)

And correct me if I'm wrong, but at argument you are then asked to sort of say, as between this evil of piercing the sanctity of jury deliberations and the other evil which is having a racially tainted jury, you're asking the court to pick the lesser of two evils. Right. That's how it's presented by John Roberts.

D (26:57)

Well, I think that's how all sides present it. That's how the government presented in its brief, drawing from an old Supreme Court case involving a different kind of juror misconduct. And so the Court has always set up this situation as involving the balance and understanding that one important value is going to have to be sacrificed. And our position in this case is that, look, it might be that in certain circumstances, the value of the sanctity of jury deliberations prevails over the interests of an individual litigant who might be disgruntled. But when it comes to racial bias infecting the criminal justice system, there's such an overriding societal interest in ridding our system of that poison that goes back through our history. It's obviously in the present as well, and is deeply woven into our constitutional structure. So that's what we say, is that the lesser, lesser evil can never be racism.

A (27:54)

Right. So it's not even a lesser evil. It's. You're looking at a scope and scale of a problem that is just not comparable.

D (28:02)

That's right. And the court has done this. And we point out in our papers, in an argument that there are other areas of law involving criminal procedure doctrines where the Supreme Court has said that, you know, the Constitution requires special attention to the problem of. Of racial bias in the criminal justice system and sometimes requires special medicine that isn't available to deal with other kinds of potential problems.

A (28:29)

So John Roberts, and I think to about the same extent, Sam Alito in argument, their big worry is this slippery slope problem. Right. If we start looking at your statements about race, we're gonna start looking at jury statements about everything. So let's listen to a little colloquy between you and Chief Justice John Roberts.

E (28:50)

What about religious bias? Same thing in this case, except it's not, you know, this is how Mexicans act. This is how Catholics or Jews act. So they're obviously guilty. Wouldn't that also come under your exception?

D (29:03)

Well, there's obviously, Mr. Chief justice, frequently an overlap between race and religion. And so for that reason, religion might be viewed very similar.

E (29:11)

All right, well, that seems to be avoiding the question. Let's say there isn't, I don't know, Catholics.

D (29:17)

All the court needs to decide in this case today is race.

E (29:20)

No, I don't think that's fair. Once we decide race, this is not an equal protection case. It's a Sixth Amendment case. So we think invocation of race is an impermissible. Impermissible enough, I guess, that we will pierce the jury confidentiality. Well, the next case is going to be religion. So if whatever we say on race is going to have to happen, have either a limiting principle that makes sense or it's going to open up a broad category of cases.

A (29:47)

And not to be outdone, Justice Sam Alito then goes on to raise the possibility of policing all jury speech for political correctness. Let's just have a listen.

E (29:59)

In this case we have a very blatant statement, but let's consider the standard that now applies on a lot of college campuses as to statements that are considered by some people to be racist. What would happen if one of the jurors has the sensibility of a lot of current college students and thinks that one of the something that's said in the jury room that falls into one of those categories was a racial comment?

D (30:29)

We're talking here, Justice Alito, only about intentional racial bias. So even in the equal protection clause, haven't gotten anywhere.

E (30:36)

The person said something that is considered improper on the college campus today and another juror thinks that that shows intentional racial bias.

D (30:49)

No, I think, as I said, it's an objective test. Even under the Court's equal protection jurisprudence. The court hasn't tried to.

E (30:54)

Yeah, well, how will the judge decide? How will the judge decide whether the statement is racist?

A (31:00)

So, Jeff, I guess I want to ask you, what's your answer to this question of the slippery slope? You know, all the stuff that's said in jury deliberations is probably going to offend somebody. And, you know, where does it stop?

D (31:13)

Well, I think there's two different issues that the justices were asking about. One is, is race different than other sorts of bias? And the second question is how do we decide when something even within the realm of racial bias is sufficiently serious that the Court would need to step in? So on the first question, what we told the Court is that that racial bias has been treated as a category of its own. Uniquely poisonous for the reason I said earlier, in terms of our history and traditions, and we're not saying that other forms of identity based bias like sex bias or sexual orientation bias or religious bias aren't also very serious things. It's just that however you decide this case doesn't dictate any particular answer in those cases. And the Court should do what it normally does, which is decide one case at a time and then if it gets a case about a different kind of bias, ask itself whether the same balancing that we're asking it to conduct here comes out our way or comes out the other way. When it comes to the second question that the justices were asking about how do you Identify racial bias. That one we think isn't terribly hard because courts do that all the time. Even in the situation of jury verdicts. If a juror had passed out a note five minutes before the verdict was entered, no, nobody disputes that the judge could then look in and decide whether racial bias was affecting deliberations and also in all kinds of other areas of law. Just think of one example, which is employment discrimination. Courts and juries have to decide every day whether somebody was discriminated against on the basis of race or something else. So we're not saying that it's an easy question in all cases, but we're saying this is something that courts customarily do. And even if there are going to be hard borderline cases where we say, well, we really have to ask, hmm, is that really racial bias or is it something else? You know, we can tolerate those hard cases and maybe not getting everyone exactly right. What I think we can't tolerate is a case like this, which is the very worst form of bias. Unabashed race based, negative stereotypes, dealing with criminality, and that the court needs to stop.

A (33:24)

Jeff, what do you do with the questions that you get that say, can't this be cured just by questioning jurors earlier in the process? There's a fake to this that doesn't involve piercing the sanctity of the jury room.

D (33:37)

Well, that would be lovely if it were true. It is possible for lawyers to ferret out potentially biased jurors at the outset of cases sometimes. And there are some other tools available to sometimes catch some situation like this before it blossoms. But without getting into all the details, I think any listener, whether they know much about law or not, would understand that it can be very difficult to get somebody to admit in advance, you know, raise your hand if you're a racist. Doesn't always get every last hand in the room. And indeed, maybe that's a little too flip. Even the juror in this case, remember, said, in my experience, here's what I believe. And so if you'd have asked this person, you know, are you racist? I doubt he would have said yes, even though he know we can look at these comments and say for ourselves that they're reprehensible. So yes, you can get these problems sometimes before they hatch, but not always. And that just brings you back to the question, can the law tolerate a verdict like this when the safeguards haven't ferreted out the problem? And now afterwards, we know this is what happened. Should the law step in and require a new and fair Trial or not.

A (34:58)

Jeff, I think that one of the things that's really evident from this argument is that Justices Sonia Sotomayor specifically and Elena Kagan, you know, look at this as egregious, Right. Here's Sonia Sotomayor saying, you know, of course race is different.

E (35:16)

I always thought the most pernicious and odious discrimination in our law is based on race.

D (35:24)

I agree with that.

E (35:25)

All right. So why is a rule that says, given the exceptions we've recognized since the 1800s that have said that race is the most pernicious thing in our justice system, why can't we limit this just to race using principles of the 14th amendment is what.

A (35:49)

And here's Elena Kagan saying this is screaming race bias here.

E (35:54)

We have like, screaming race bias in the jury room. We have the best smoking gun evidence you're ever going to see about race bias in the jury room. And notwithstanding that, in these two lines of cases, we've said there need to be special rules to address this prevalent and toxic problem in our criminal justice system. Here we're not going to do that. And the question is, why would this category of cases be different from those other two?

A (36:25)

Is there a strange way in which the Court is very much caught up in the same historic moment we're all caught up in, which is some of the justices really want to believe that, you know, we are race blind. Race is not a problem in America. We are post racial. We've all gotten over it. And some of the justices are really, I think, deeply invested in the conversation around race and the criminal justice system, and that in some strange ways, we talk past each other, not only sort of in the public discourse, but right there in the courtroom.

D (37:00)

Well, I'm not going to try and get inside the justices heads. Exactly. But it's no secret that different justices on the Court think about the problem of race differently. In fact, there was a moment during the state's piece of the argument where Justice Sotomayor interjected to ask about. About the idea of political correctness. And even then, I think she acknowledged that different people on the bench had different views on that issue.

E (37:25)

There's a lot of talk about political correctness or not, and some people think it's a negative thing and others think it's a positive thing. But if an individual is harboring racial bias, isn't it better to harbor it then infect the whole. Everyone else is your deliberations on the basis of it.

D (37:48)

She's openly admitting there that different people on the bench are thinking about the problem in different ways. So the court is certainly engaged in a bigger dialogue about race in the criminal justice system and indeed race in society that goes far beyond this case. And that's obviously one of the challenges when you're up there at the podium is that you're in some ways dipping your toe into a stream that's moving past you and trying to participate meaningfully in that conversation that justices are in many ways having with each other.

A (38:18)

And how much do you, in your own head, Jeff, have to tune out the fact that in this completely bizarre election season, you are actually talking about the criminality of Mexicans and you are talking about a racially broken criminal justice system. I mean, you're talking in a deep way about some of the same issues that have been smoked out on the campaign trail. How much are you just saying to yourself, don't talk about the newspaper, don't talk about the newspaper when you're going in and talking about issues that are absolutely front page concerns right now?

D (38:53)

Well, it's a great question, and I think it's a great challenge. You know, the court doesn't typically like to have dialogue, an argument that is directly ripped from the headlines or is directly responsive to the latest story in the New York Times.

B (39:11)

But.

D (39:11)

But it's also foolhardy, I think, to go in there and pretend that this isn't a topic of intense concern and conversation in our political system right now. So finding that sweet spot really is a great challenge. And so I think that justices probably can take care of that part for themselves. By that part, I mean how this case fits into this moment. And I think the best thing the lawyer can do is to go in there and situate your argument as sort of appropriately and deftly as possible in the concerns not only of the Constitution and of the law, but also of the moment without making it so overt.

A (39:57)

Jeffrey Fisher represented Miguel Angel Pena Rodriguez at the Supreme Court this past Tuesday. He is co director of Stanford Law School Supreme Court Clinton, and teaches law at Stanford Law. Jeff, thank you so much for joining us on the show.

D (40:13)

Thank you. It's always really fun to talk to you.

A (40:19)

And that is going to do it for this episode of Amicus. We are eager as ever to hear your thoughts. And now you can find us on facebook, yay. @facebook.com amicuspodcast or you can email us the old fashioned way@amicuslate.com we love your letters. We love your feedback. If you're new to this podcast, you should know that all of our past episodes are available for your listening pleasure on our show page. That's@slate.com amicus and if you're a Slate+ member, you'll also find transcripts there. And if you're not, well, you should be. And you can always sign up for a free two week trial at slate.com amicusplus thank you to the Virginia foundation for the Humanities, home of our show. Our producer is Tony Fields, Steve Lichtai is our Executive producer, and Andy Bowers is the Chief Content Officer of Panoply. Amicus is part of the Panoply Network. Check out our entire roster of podcasts@itunes.com Panoply I'm Dahlia Lithwig and we'll be back with you in two weeks with another edition of Amicus.