← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Buckle Up, John Roberts
00:50:57
Looking ahead to a turbulent 2020 for the chief justice.
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- [00:06]
A
If Roberts gets to uphold the rule of law and embarrass Trump a little bit in the process, that might just be a win win for him.
- [00:21]
B
Hi and happy New Year and welcome back to Amicus, Slate's podcast about the law and the courts and the Supreme Court and the rule of law and, you know, justice and impeach impeachment. Or as I've come to think of all that stuff, Chief Justice John Roberts Toiletry Kit I'm Dahlia Lithwick. I cover John Roberts Toiletry Kit as my job for Slate. And I'm actually not exaggerating at all when I tell you that nobody is as shocked as I that a graying attorney from Long Beach, Indiana is now somehow the most interesting and important constitutional player in America. Check that. I think John Roberts is a little bit more surprised than I am to learn that this is the case. So this week's show is going to focus on the Chief justice as we try to make sense of an impeachment chess game that's somehow about equal parts three dimensional chess, but also one part Hungry Hungry Hippo. Before we get to institutional chess hippos, I want to thank those of you who wrote in following our last show when we spoke to a bunch of lawyers who are volunteering their time and skills to support people applying for asylum at the southern border. Liz in Seattle wrote in to let us know about the organizations she's connected with to help put her attorney's license to use in service of people who are facing the daunting task of navigating the current unforgiving system. So I wanted to share the name of one of the organizations that she mentioned with you. That's Kids in Need of defense or kind supportkind.org and they put the training and support of pro bono attorneys at the very center of their work. Douglas in Illinois wrote in to recommend Immigrants Rising. Douglas writes, they have written a careful legal guide for educational institutions to provide financial support for the many undocumented young people now in this country. In particular, they helped us generate fellowships for three students involved in summer Science, Technology, Engineering, Math and research program targeted at underrepresented high school students in our community in Champaign, Urbana. Thank you to both Douglas and Liz for just reminding us that everyday people who listen to this show can do extraordinary work. And if you're a lawyer who listens to this show, pick up an or it's time. One more thing. Slate plus members keep an eye on the Amicus podcast feed. We're going to be sharing part of a conversation I had at the Aspen Institute with Neil Kadial, former acting Solicitor General of the US Frequent guest on this podcast. His brand new book is called Impeach the Case Against Donald Trump, written with Sam Kopelman. In bookstores now. Okay, so to the chief justice and a man who is also the most interesting man in America, but who's been studying the Chief justice and his jurisprudence and his doctrine almost as closely as anyone I know. And that's happily for us, Slate's own Mark Joseph Stern. Mark's book American Justice 2019 the Roberts Court Arrives, came out this past fall, published by the University of Pennsylvania Press. And it is an absolute must read to help put what is going on right now with John Roberts and the court, what happened last term, what's coming up next into perspective. Long before any of us knew that Chief Justice Roberts was going to become the most watched political actor in America, Mark was clocking the rise of the Roberts Court. So, Mark, welcome back. Happy New Year. It's so good to have you back.
- [03:44]
A
Thank you so much for having me back on. Happy New Year. It's gonna be a terrible one. Everybody buckle in, buckle in.
- [03:51]
B
It's gonna suck. Mark, let's just start with the brief biography. I know Joan Biskupic wrote sort of the definitive biography of John Roberts, but I also know you've thought very about how it is that this man who grows up as sort of a conservative, middle of the road movement conservative, Fed sock guy. Yes, but not a Clarence Thomas, not even a Samuel Alito. Who is John Roberts? What is it that we need to know about his backstory to understand what he is today?
- [04:21]
A
Yeah, well, in a lot of ways, Roberts is sort of an apparatchik in the Republican Party. Right. He was a very, very smart attorney who hailed from Indiana. He has a kind of subdued and modest Midwestern charm. He clerked for then Justice William Rehnquist, a very, very conservative justice on the Supreme Court, and then went to the Justice Department under Ronald Reagan, where he argued against expanding and strengthening the Voting Rights act, then hopped over to corporate law practice for a number of years, argued before the Supreme Courts many times quite deftly. George W. Bush put him on the D.C. circuit for a few years. That was sort of like a triple A league waiting for him to be elevated to the Supreme Court. And eventually when Justice William Rehnquist died, he was chief justice at that point. And Bush said, well, guess what, John Roberts, you're going to be the new chief justice. And so Roberts just took the seat in the center of the court it was not a particularly controversial appointment. The elevation of Samuel. Samuel Alito around the same time was much more contentious. Um, and Roberts was widely seen at the time as a kind of bushy conservative, but not rock ribbed hardliner conservative who could be trusted to continue to steer the court in a gently but firmly rightward direction.
- [05:54]
B
And we know now from Ruth Marcus's new book about the Kavanaugh hearing. I think we've known generally throughout the Trump era that being a Bushy doesn't make you necessarily a dream. Trump justice. Right. Donald Trump initially really didn't want Kavanaugh because he was seen as a bushy Republican. He was seen as way too conventional and way too centrist and way too much of an institutionalist. Is that where we draw the line between John Roberts and the other conservative members of the court, the sort of people who came up in the Bush era? I mean, clearly we know that both, you know, Alito and Thomas were appointed by Bushes. That's not the line of demarcation. Exactly.
- [06:39]
A
Right, right. It can't be, because Kavanaugh was considered too bushy at first. Kavanaugh was not on the early short lists for Supreme Court justices that Donald Trump released during his campaign. He, Kavanaugh responded by sort of then campaigning for that seat. He gave a bunch of sort of anti abortion conservative speeches and of course wound up getting nominated. But many in Trump's inner circle, Federalist Society chief Leonard Leo, said, look, Kavanaugh's too bushy. He's a little too squishy. He's a little too middle of the road. We need a hardliner, someone who's truly loyal to the Federalist Society and its goal of tearing down the administrative state, tearing down the constitutional right to abortion access and marriage equality, and the legacy of the Warren Court. Allah. Neil Gorsuch. I think everyone on the right considers Neil Gorsuch to have been a slam dunk. Gorsuch was not Bushy at all. If he was loyal to anyone, it was to Leonard Leo. And so you can't really say that Roberts and Kavanaugh are Bushy in the same way, because I think Kavanaugh is much more conservative and frankly, much more partisan and cynical about the court and his role than Roberts is a good example. Here is the census case, which we will talk about a little bit. You know, Chief Justice John Roberts is very conservative. He wants to move the law to the right, but he does not want to be clown. His court in the process, does not want his court to lose its legitimacy or prestige. And so he will occasionally cross party lines in very important five to four decisions in a way that Kavanaugh doesn't appear interested in doing. And so I think the line, it moves around a lot. It's kind of protean. Right now it seems to be between Roberts and Kavanaugh. There are the four horsemen. Kavanaugh, Gorses, Alito, and Thomas. And then there's Roberts just a little bit to their left, trying to hold together the Court as something other than a bipartisan legislature that promotes the Trump agenda through the judiciary.
- [08:47]
B
And there's one other sort of floating piece of this that I want you to pin down, if you would, Mark, which is we know that Chief Justice Rehnquist moves to the center of the Court when he becomes chief, not because his politics change, but he does defect in a handful of cases, famously a Miranda case where he surprises everybody and votes to uphold the Miranda warnings.
- [09:10]
A
And writes the opinion.
- [09:11]
B
Yeah, and writes the opinion, because it's been around for a really long, long time. But also Family Medical Leave act case. There are cases where he defects. And I think there are two stories you can tell about that. One is that he becomes a centrist. The other is that he's chief and he has different institutional values. And I know we're gonna talk about John Roberts Cullen institutionalist in a minute, but I wonder if you could help parse how much of that fissure, that slight fissure, and I think it's slighter than we think it is between Roberts and Kavanaugh and the rest of the conservatives is a function of the kind of conservative he. And how much is a function of his institutionalism, and how much is a function of the fact that he's the chief.
- [09:52]
A
I think the latter two options, institutionalism and the fact that he's the chief, those help to explain almost all of it. I think that John Roberts as an Associate justice of the Supreme Court, votes very differently than John Roberts as Chief Justice. I think that Roberts feels that he is responsible for the Court for sort of guiding the Court through this political maelstrom and future maelstroms to come. And I think that Roberts does not want to be the guy who destroys the Court or the guy who is in charge of the Court when it all falls apart. He's said as much in speeches and interviews. He's actually fairly candid about this. Roberts says, look, there haven't been that many Chief Justices. All of them have, for the most part, kept the Court together. And I don't want to be the one who ends that streak and ruins it all. So I think that he is an institutionalist because he feels it's important for his own job security and for the, for the security of the decisions handed down by the court. The court cannot send its police officers to go enforce decisions. The court cannot send its, I don't know, 150 security guards to go tell Alabama to, you know, enforce marriage equality. It relies on this kind of magic, almost mysticism. And Roberts knows that he wants to preserve it and he's willing to compromise a little bit of his conservatism occasionally to make sure that it remains and that people still take the court seriously.
- [11:21]
B
So, so this is the thing that I've been saying probably since the summer, and I think you and I wrote a version of it when the gerrymandering and census cases came down at the end of the term and we co wrote a piece more or less saying, look, this is a big board, you know, it's not just the gerrymandering case, it's not just the census case. He's got to deal with, you know, this current term, which as you and I have talked about before, is a monster term on its own rights. Then he's got to deal with possibly presiding over an impeachment trial which may or may not have happen at this juncture. Plus he has to deal with the law of Trump cases, right? Whether it's the, the tax, the tax returns cases or the, I think, burgeoning questions about Don McGahn and testimony. So he's got all that going on and he cannot in all of them vote what he would probably like to do if he was just wearing his Federalist Society conservative John Roberts hat. And I think the necessity of pulling back and seeing where are the places that we think, you know, he's gonna do what he did in the census case. He's gonna throw his weight in with the left wing of the court, not because he materially agrees with the arguments, but because he's trying to do this work of preserving the courts. And I wonder if you have any kind of instinct, and again, I know after the census case, you and I, I think, agreed that had those sort of secret files not come out and had the court not been quite, almost pantsed by, you know, by, by operatives who embarrassed John Roberts, that that might have gone another way. So I'm wondering if you, particularly at the end of last term, can see any kind of theory of the case that says these are the ways that John Roberts will defect given the magnitude of the game board. And the stakes.
- [13:06]
A
Right. It's so hard to draw lessons from the census case because as we wrote at the time, Roberts opinion for the court essentially tells the Trump administration lie better next time. Right? The Trump administration was putting forward briefs to the Supreme Court that Roberts would not have signed if he were still working at the Justice Department. They were so obviously mendacious and embarrassingly sloppy and just filled with all of these lies and exaggerations. And Roberts decided he had to draw the line or risk embarrassing his court. I don't know that that's a concern that's present in any of these Trump cases or rule of law, Trump related cases. And those strike me as more along the lines of the first and second Affordable Care act decisions. Right. In the first decision, basically, Republicans and conservatives trying to tear down the signature achievement of Barack Obama in an election year. And the second, trying to use some somewhat ambiguous phrasing to send the law into a death spiral. And in both instances, Roberts said, I'm not going to do that. I'm not going to do your work for you, Republican Party. If John Roberts were a senator, he absolutely would have voted against the Affordable Care Act. But as Chief justice, he refused to help destro it. And that certainly irritated many Republicans and Federalist Society members. You may have noticed John Roberts does not attend Federal Society events anymore. He doesn't speak at them. Uh, the. The two seem to be on thin ice. The Federalist Society and John Roberts, uh, they aren't thick as thieves at this stage. And so I think if you look at the Trump cases, some of them may follow along that broader pattern of the ACA cases. Uh, consider the Trump financial records case cases, right? Where the House of Representatives says, look, we are really eager to tighten up our ethics laws in this country. We need to figure out what sort of malfeasance the President might have engaged in before and during he took office to figure out how to prevent this kind of conflict of interest from happening again. So we need his financial records. Every single precedent and every word on point in the Constitution suggests that the House of Representatives gets to do that. I mean, it might not be pretty, it might not be what Trump wants. Um, maybe you could call it legislative overreach. But if it is overreach, that's for the voters to decide. That is not for the courts to decide. Um, and so I do see this as one potential instance in which Roberts might say, you know what? This is a highly political case. This is so charged with partisanship, the court is going to step aside and Let the political branches work it out. We're not going to jump in and prevent the House of Representatives from conducting the oversight of the President that the Constitution really invokes.
- [15:52]
B
And you've identified. I wrote about this, I think, in the fall when I said I thought that the tax cases might be one where John Roberts would be willing to throw in with the liberal wing only because I don't think he cares very much about Donald Trump personally in his personal capacity being embarrassed. I mean, I think there are a lot of cases that have big principles about executive power and John Roberts cares a lot about executive power. That's why it was no surprise that he voted as he did in the travel ban case. He has a very robust, probably not Kavanaugh robust, but a very robust version in his head of what presidents can and cannot do and what presidents can and cannot withhold from scrutiny. But I don't think he cares a lot about keeping Donald Trump from being embarrassed about the fact that he was a grifter for many decades. And so to me, this seems like an easy one where he can, without departing from any real closely held principle, simply say, you know, along the lines of the appeals court's opinions in, in the tax returns cases, simply say, this isn't, doesn't really implicate some huge issue of executive power and authority. You know, the subpoenas, some of them are for pre presidential tax returns. This is not asking the President to do anything. These are 9, 0 precedents in both Nixon and Clinton cases. You know that there's a way to say this is not implicating any value that I actually, if I were a Republican senator, would care about. And also like if Donald Trump gets a little embarrassed cuz he's a buffoon, that's okay too. Am I? Is that possible?
- [17:28]
A
Oh, I think that's right. And I think Roberts doesn't like Donald Trump. I mean, this is the Chief justice who issued that extraordinary statement criticizing Trump for talking about Obama judges and telling the President, we do not have Obama judges or Trump judges. We actually do. But it was still nice of Roberts to say that it's a nice idea. And I don't think that the Chief justice cares if Trump is humiliated. I think the Chief justice would like for Trump to not be president. I'm sure Roberts would be very happy with a Mike Pence presidency, but Trump is sort of everything that the chief hates in a politician or in any kind of public figure. The chief is a big civility guy and Trump is not. So I think that's Right. That these are not like the Guantanamo cases, for instance, which implicated this principle of executive power that Roberts cares deeply about, which is the Commander in Chief's power to imprison the country's enemies. You know, this is about something so much slighter and almost not trivial, but very much within the realm of normal political squabbles. And if Roberts gets to uphold the rule of law and embarrass Trump a little bit in the process, that might just be a win win for him.
- [18:39]
B
And it's worth flagging. Mark, again, you and I wrote this, I think, two years ago, that Justice Clarence Thomas actually likes the Trump presidency. I mean, there's a real fault line there. Uh, there are some of the conservatives on this court who have no problem with the incivility, with owning the libs, with the sort of general ethos of the Trump presidency, even, it seems, when he attacks judges. But that's a real demarcation point for me in my head as well.
- [19:08]
A
Absolutely. I mean, there's this astonishing passage in Justice Clarence Thomas's dissent in the census case where Thomas basically accuses the lower court judge who so carefully scrutinized the record and put together all of the pieces to illustrate beyond a shadow of a doubt that the administration was lying about the census citizenship question. Thomas said of this judge that he was a conspiracy theorist and a partisan hack. In so many words, he said, look, this judge, he just had it out for the Trump administration. He was crafting a conspiracy with string on a corkboard. And to my deep surprise, both Justices Kavanaugh and Gorsuch joined that opinion in full. So Justice Kavanaugh feels comfortable accusing a lower court judge who happened to be appointed by Obama of being a conspiracy theorist and a partisan hack and really, I think, beclowning himself in order to run interference for Trump and the Trump administration. That's not something John Roberts is going to do, as we saw in the census decision.
- [20:10]
B
Right. And I think it's really worth flagging because it happened at the end of the year and nobody took note. But I think for a sitting Supreme Court justice to essentially say of a very well respected, hard working lower federal court judge that this is Carrie Matheson, mental illness, homeland, stringboard, crazy conspiracy theorizing is so profoundly damaging to the institution of the judiciary. That's not Trump making that charge. That's Clarence Thomas, as you say, aided and abetted by two justices who sign on. It brings me to the, I think what is the nub of, of. Of what I wanted to have you on about, which is it's, it's an article of faith. It's a cliche, it's almost a hallmark card that John Roberts is an institutionalist. But I think that language obscures a lot more than it illuminates. We had a really smart letter from a listener last week saying, yes, he cares about the institution of big business and voter suppression. Those are the insta. You know, what does it mean to say he's an institutionalist? I, I think we got some answers in his State of the Judiciary report that he released, as he does five seconds before the ball drops on New Year's Eve. So nobody reads it, but people read it this year, and I would commend it to listeners. It's seven really interesting pages. But this is, as I read it, John Roberts response is directly to this question of when you say you're protecting an institution, is it the federal courts, the federal courts that have neither a purse nor a sword, they've only got you? It seems to me that the charitable read of his report is that that is what he set out to do.
- [21:54]
A
Yes, I think that's right. And it's notable that the Chief cites as an example of a kind of great decision that helps to educate the public and make the country better, Brown versus Board of Education, a decision that, of course, that so many of Trump's judicial nominees have refused to support during their hearings. I don't want to read too much into that, but it is certainly interesting to see the Chief call it out as a kind of paragon of judicial virtue in so many ways. I certainly agree with that. But I think that this, this State of the Judiciary letter, like so many before it, really strives to make the judiciary seem heroic and modest and almost kind of like a superhero that spends most of its time in Clark Kent glasses, but then dons its cape just when the citizenry needs it the most. And I don't think that's how the judiciary actually functions. I think that today the judiciary does far more harm than good, particularly the Supreme Court. And the courts that Donald Trump has captured, like the Fifth Circuit Court of Appeals, they really have moved the law in a terribly backwards direction and done things like uphold voter suppression in so many different forms, mass purges, partisan gerrymandering, tilted the scales in favor of big business forced arbitration, killing class actions, killing discrimination suits. And yet, because of these old hallowed decisions like Brown, it seems, if you look at opinion polls, that most Americans still believe in the Supreme Court and the judiciary. That's how John Roberts wants it. And so this is sort of a long wind up to say that John Roberts is an institutionalist in the sense that he wants to be in charge, he wants to be the boss. And he recognizes that if he pushes his court too far out, then he's going to get fired. And I don't know exactly what that looks like, whether it's court packing, whether it's sort of a revolt against the Supreme Court's decisions or jurisdiction stripping or whatever. But there is a possibility that the American people could sort of rebel against the Supreme Court if it loses all of its prestige as an institution. So to me, this isn't Roberts deciding between the devil and the angel on his shoulder. This is Roberts saying, just how much can I listen to the devil before I sort of self emulate?
- [24:26]
B
We know you value the journalism we do here at Slate and we need your support to make this show and all the other journalism we do here. By joining our membership program, you will be supporting that work and you'll enjoy all the benefits of membership like listening to this show ad free. And if you sign up for Slate plus, you will get access to bonus segments and extended versions of your favorite Slate shows. Look, it's only $35 for your first year. Totally worth it. And you can sign up for free for two weeks to check it out. First, sign up for Slate Plus. Help secure Slate's future. To learn more and to begin your free two week trial, go to slate.com amicusplus and now back to our conversation with Slate's own Mark Joseph Stern about the Roberts court. What's behind us and ahead of us for this Supreme Court term and impeachment. You know, it's funny, I just spent the weekend with a bunch of very smart people talking about impeachment. And I spent a lot of it saying, as I've said of impeachment almost since the beginning, this is a messaging problem. This isn't a constitutional or political problem. This is a problem that a massive subset of the American people get 100% of their news from Tucker Carlson and Rush Limbaugh. And their view of impeachment is not what the view of impeachment was post Watergate, because they're just hearing chalupa steal, dossier, basement, you know, skiff in the basement. And I think that what you're saying is really important because I think what John Roberts, I read so much of the state of the judiciary as John Roberts responding to a messaging problem. John Roberts kind of saying the courts need to do a better job of messaging that they are neutral. And then he talks about all the ways that they are neutral. And he talks about, you know, the Federalist Papers a lot and he talks about getting hit in your head with a rock if you're John Jay. But mostly what you know, he's talking about mobs and rumors and you can't elide the fact that we know he's talking about fake news. He, I think, is talking about what happens when mobs are fed false information. And yet at the same time, there's this kind of Schoolhouse Rock quality that all this can be cured by civics education? And isn't it good that the courts now have all these programs which he name checks one after another to teach people about civics and to teach people, by the way, not about, you know, the other branches of government, but to teach people about the courts? And I took that as a sort of a. As much as I think I read the Brown v. Board citation as, look, they managed to get it into 11 pages and then they popped it in the papers and everyone read it and America understood it. And that was sort of, I think you're right. There's a real flicking at. It's important that the court be clear and transparent and that people know that they're not a threat. But there's also this messaging valence which is, you know, that we're not getting our story across and we should go back and tell our story better. And I think it's just very, very interesting that the other version of is, look, Brown v. Board is really important because the other branches of government couldn't fix it and the court leaned way the hell in and fixed it, right or wrong, whether or not it was tenable as jurisprudence. John Roberts is not telling us that story. This is not the Chief justice thing. And Brown should be feted across the land because when all the other machines were broken, the court stepped in and did the right thing. John Roberts is describing Brown as a messaging problem that was solved by making the appeal. And I guess just to add to what you've said, I'm really mindful of the fact that John Roberts is less worried, I think, about the courts than about the mobs and the misinformation and the disinformation about the courts. He wants the courts to keep doing what they're doing. He just wants the story to be told differently. Am I over reading?
- [28:24]
A
Oh, that is a difficult question. And I don't think there's any one answer. I think think that John Roberts words are so often cryptic and we have to perform this kind of exegesis every time he releases more than a sentence of text. I think that your, your take on the messaging problem is correct. Although I would say there's a great piece out by Sandy Levinson, the constitutional law professor who argues sort of against the chief, that Brown was a failure of messaging because it failed to actually call out white supremacy by name and talk about how the problem of Jim Crow had developed in first place, which led to this, this sense that, oh well, these things just happened. There's no malefactor, which made it more difficult for both courts and politicians to solve the problem if nobody caused it in the first place. But leaving aside Robert's apparent sort of naivete about, about Brown, if he's talking about messaging and he's concerned about messaging, I wonder who he's talking to. You said you talk about this mob violence issue. Is he talking about Tucker Carlson and Laura Ingraham, who by the way, way is a former Clarence Thomas clerk? Um, I don't know because I think he realizes that he has no control over them. And in fact most people are not going to read this. Who's going to read it? His colleagues on the lower courts. And I would note that many of his colleagues on the lower courts who were appointed by Donald Trump have begun to channel Tucker Carlson and Laura Ingraham in their written opinions. Judges like James ho on the 5th Circuit who is essentially calling abortion provision writers murderers who kill, quote, innocent babies, and of course people like Justice Thomas who are very offensively talking about how lower court judges are conspiracy theorists and hacks. So maybe Roberts is trying to rein in his colleagues who have gone a little bit too far. Maybe he's just trying to say sort of I'm the dean of the judiciary and this is how I want you to talk about our jobs. Uh, maybe there's a little bit of a side eye at, at, at Trump nominees here. Uh, it, it all goes into the pot. You stir it together and you get that this very Delphic call for civility. And much like the Brown opinion, it's not clear who the malefactors are who need to hear this call in the first place.
- [30:36]
B
And I should just say, cuz folks should read it. That Sandy Levinson piece is up at Balkanization. And I should also say, because I think that certainly Adam Liptak flagged it in the New York Times as soon as he read the state of the judiciary, but the judge in Washington D.C. the chief judge of the court, who, who is saluted not by name, for going and reading and doing literacy work with underprivileged kids, is none other than Merrick Garland. And I think, again, it goes to this, like, complexity of the civility problem. If you want to protect Merrick Garland, John Roberts, there are a thousand ways you could have done that, including speaking out when he was being denied a hearing. But to not name him, when you say some judges, a lot of really good judges work with underprivileged children, just feels a little bit too subtle and clever, and yet you still get the points for it. So I think, again, we're gonna have to watch how this goes. But I absolutely do agree with you that John Roberts, who's been very, very, very careful not to take on Trump in any really profound way. I mean, he certainly, as you said, called him out for the Obama judges, Bush judges, I think, impliedly is calling him out here for some of the civility stuff. But it's very, very hard to give him the points for taking on Trump when time and time again, he hands wins to the president. And that really is the question that I think is materially the only thing on the table in the coming months as we think about impeachment. And I wanted to, I think, ask you, do you believe at the present time we're gonna have an impeachment trial in the Senate?
- [32:09]
A
Yes, I do believe so. I think the articles will be transmitted, and I think that there will be some form of a trial. It might be one day. That would be, obviously, a terrible situation and a real failure by Senate Republicans to take this endeavor seriously and to uphold the Constitution. But I think we'll get a trial. I think that John Roberts is going to be marching across the street to the Senate and presiding over some kind of hearing over Trump's many misdeeds, uh, particularly here, Ukraine and obstruction. Um, of course, there are so many more. That's the tip of the iceberg. But that's what Democrats have decided to focus on. And in some way, shape or form, I do think that the Senate will air out these grievances.
- [32:50]
B
And it's. Let's just remind people the optics of this. Right? He will sit and hear oral arguments in the mornings and then march across the street and preside in the afternoons over the Senate trial, if it comes to that. He famously clerked for William H. Rehnquist, who famously said of his oversight of the Clinton impeachment, I did nothing, and I did it very well. Are you assuming that John Roberts potted plant is mostly what we're gonna see, or are we gonna see him weigh in on any kinds of questions about testimony, subpoenas, evidence?
- [33:30]
A
Well, he may be forced to. Right. But I think he will try to be as much of a potted plant as possible to stay out of the limelight, to keep his microphone off, to do very little or nothing. John Roberts worst nightmare is an impeachment trial. It is so openly partisan. It is, it is by definition a kind of partisan undertaking, which is exactly what John Roberts doesn't want for him or any of his colleagues or any courts. So I think he will try to emulate Rehnquist potted plants. But because the Senate is so closely divided, because there are so many unresolved issues here, including calling some key witnesses who refused to testify before the House, Roberts could end up having to wade in and make some very serious and important judgment calls that end up up off one side or the other a great deal.
- [34:16]
B
And he can still be overruled by the majority. It's important to write. He does not have a veto right. Which raises the question, why would he make those important calls if he's gonna piss people off? And I think, you know, we've seen a lot of. In fact, you and I have giggled about. There's been a lot of journalism sort of special pleading at John Roberts to take a really activist role. I think you just pointed out, I think a few weeks ago, I said in an interview with Kate, she, I envision John Roberts doing this with a paper bag over his head and like a bendy straw directly into the vodka bottle. Like, he does not want to be there. He is not going to be pow, pow, Yosemite Sam guy. He is going to be as small as he can be. It does raise the same question over and over again about he is being tasked by the Constitution itself to have an institutional role presiding. Right. The framers are very careful to say if. If it was just a nothing burger, if it was purely ceremonial, we would let the Vice president preside. We want the Chief justice to preside, presumably because there is a lane here for the third branch of government. Does any of that penetrate?
- [35:26]
A
Well, first of all, I see the chief is more of a whiskey guy than vodka, but otherwise totally agree. Roberts is a smart guy. He's read the Constitution. Um, he's probably read several of the excellent books on impeachment that have come out over the last few years, or at least skim them. Uh, and I think he recognizes that he's supposed to do something here. Um, but like you said, he gets to be overruled. By a majority of senators. Um, and so somehow this becomes yet another kind of institutional question for Robertson and for the Senate, because I think that there will be a lot of hesitation among the ostensibly moderate Republican senators to overrule the Chief justice of the United States. States, who knows the law better than the Chief justice of the United States. I actually think there are a lot of people who do. But Senators aren't going to want to say that. And I think if you look at the Mitt Romney or Susan Collins types, they're probably going to be looking to Roberts for guidance here and for some kind of leadership and how to conduct themselves. And Roberts, again, he's going to hate that. He's really going to want to be running from the spotlights.
- [36:30]
B
And so here it's useful to loop back to what you said right up at top, which is, let's remember that whoever John Roberts reveres and esteems in this equation, it's not Donald Trump qua Donald Trump. And that's why, you know, Hunter Biden and, you know, calling, calling people about the Steele dossier or calling, you know, different conspiracy theorists about, you know, servers in the Ukraine that the DNC somehow airlifted over there. That's not going to be. Be something that's interesting to him, both as an institutionalist and also as somebody who really, I think we could agree, does not have an interest in promoting whacked out, you know, talking points from John Solomon at the Hill.
- [37:12]
A
No, absolutely not. But of course, he's going to have to balance his own desire to shove aside this conspiracy theory nonsense with many Republican senators desire to bring it to the fore. And he's going to have to calibrate very carefully, as he already does on the court, these competing interests and figure out a way to kind of cut down the middle and come across as impartial while giving both sides enough that they don't go and open revolt against him.
- [37:40]
B
Maybe that's a good way to wrap the impeachment part of this, which is, you know, here is John Roberts. Institutionalists and the other institutions are behaving really badly, right, that the President is not acting like a president, the House is not acting like a House, the Senate is not acting like a Senate. No grownups, not anywhere to be seen in terms of what the framers might have expected. And we had a really, I thought, interesting question from a listener, Robin, who said this is a problem because when Roberts and the Roberts court get an impasse, he doesn't always feel the need to settle it. And so whether it's Congress inability to act or whether it's the repealing of Obamacare and who did that and whether the court should be the entity to repeal because Congress can't. He really can get weaselly about failures of government to govern. Right. It's just not clear to me at all that he has a coherent theory of what to do when government is broken.
- [38:45]
A
No, I don't think so. I don't think he has a grand master plan to navigate us out of this era of total blockade and observation constructionism. I think he feels like, look, the court's doing its work, it's churning out its opinions. They're all going on vacation. As usual, he doesn't have to answer for any of that nonsense and he doesn't want to touch the nonsense going on in the legislature except to say when he strikes down acts of Congress that if Congress doesn't like it, it can try again. You know, this is sort of his out when he does something like invalidate a key portion of the Voting Rights Act. Fact is like, well, you know, if Congress wants to fix this, they can go back to it knowing full well that Congress is way too broken to fix anything that the court breaks. So in some ways, Roberts probably likes the paralysis. It creates a power vacuum that the court has very much stepped into. In other ways, he just wants to ignore it and stay in his chambers and keep churning out those opinions that move the law steadily to the right rights without setting the court's public image on fire.
- [39:49]
B
So, Mark, I saw my friend Elise Hogue this weekend. She's in charge of NARAL thinking about the abortion case that's coming up, and I'm going to ask you to describe it in a minute. She reminded me that I told her this fall that my theory of the court right now and how the public should think about the court because of course, they have no formal way to control what the court does. She reminded me that I had said in the fall that it's the sort of Yellowstone camping rule, which is that when you're camping in the national parks, you're told when you see a bear, be larger than you are, and that, you know, one of the things that the American public can do at this moment is be present, be visible, show the court in, whatever. You know. I don't think it actually involves like waving, you know, your canteen over your head, but it does involve saying, we're not asleep. We're watching June Medical. We're watching the DACA cases, we're watching the Title vii. We're Here we care. I think that that extraordinary brief in the abortion case from all the women lawyers who've had abortions is a real example of be larger than you are, be visible. And I guess my question to you, and it's the question I've asked Joan Biskupic when she's been on the show talking about the Chief, does the Chief justice care what the American public thinks of him and of the Queen?
- [41:04]
A
Well, not to sound like a broken record, but again, I think the Chief justice cares about exactly how much he can get away with. That is what limits him, his own sense of what he can get away with. And he does recognize that there is a limit there. We haven't found it yet in the modern era, but it's gotta be somewhere. He knows that, we know that. Um, and so I think with the abortion cases, even someone like Justice Elena Kagan has been kind of quietly lobbying the Chief to take into account the huge blow that a decision against reproductive rights would inflict upon on the Court's legitimacy. Kagan said something along the lines of, it can't just be that every time there's a new guy on the court, everything is up for grabs. And yet that is what June Medical is in a nutshell. The question in June Medical, stripped of its legalese, is, did Justice Anthony Kennedy's retirement essentially revoke the Right to Abortion act access because Kavanaugh took his place? The answer is either yes or no. There's not really a middle ground here. The Chief justice can try to find one, but he's got to know in his heart of hearts that if he votes the way he probably wants to and lets Louisiana regulate abortion clinics out of existence, that he is going to be seriously tarnishing the Court's image and make it look not like this kind of esteemed body that says what the law is, but rather nine people who fight amongst themselves who have. Have deep political interests. And when five of them decide that those political interests have aligned, they're going to do whatever the hell they want, the American people be damned.
- [42:43]
B
And it's worth saying, in addition to everything else that you've just said, in terms of what could go down this spring, we're also in an election year, and this is typically a year. This is a point that Justice Kagan also, you know, has. Has been flaking at it. Typically in an election year, the Court's pretty cool, careful about not being on the front pages of the papers day after day. So let's talk for a minute. We've now talked about Impeachment. We've talked about the tax cases. There's so much more we could talk about. But can you just tell me what else will be coming down in those last weeks of May and June? What is on the court docket that we kind of clocked? But we're, you know, the train is going so fast. This is an absolutely decisive year if you are lgbtq, if you are a DACA kid, if you are. It is a decisive year if you care about religious. The separation between church and state. Can you just tell us what either has come and is pending or what's coming down the pike?
- [43:39]
A
Yeah. Oh, God. I mean, so many. Right. So you've got the Trump financial records cases that are gonna be heard apparently in. In. In March. And you've got these Title 7 cases which ask whether federal civil rights law protects LGBTQ people in the workplace. You've got the question of whether Trump lawfully rescinded DACA and can begin to not only deny work permits to DACA beneficiaries, but to deport them from the only country that they've ever known. Uh, you've got a crazy case out of Montana that essentially asks whether states are obligated to provide vouchers and tax credits to parochial schools, to schools that are dedicated to indoctrinating children with certain religious. Religious beliefs. You've got a case about guns in New York that could end up being moot, but it could also be the first step toward the court creating a constitutional right to open carry and public carry to transporting guns outside of the home. We've got a slew of environmental cases that I'm not even gonna get into. But it of course involves the same usual stuff, pollution in the air and water that we on. Rely. Rely on to survive. We've got cases about discrimination on the basis of race, regarding not just employees, but also independent contractors, and whether companies can't basically conceal their racism in making bad decisions and get away with it in court. On top of that, you're going to have the massive abortion decisions that I think we should flag here aren't just asking whether women still have a constitutional right to abortion access, but whether clinics can even sue in court to defend that right themselves. This is a really under discussed component of these cases. But the court has put right on the chopping block the issue of clinic standing, of whether clinics can step up for their patients and say these laws are wrong and unconstitutional. And if the court takes away clinics abilities to do that, we're going to see states pass laws that no one can even really challenge. Because what pregnant woman already in distress, already forced to jump through so many hoops, is also going to march into federal court and say on the record, for all of history to remember, I want to terminate my pregnancy. There is so much on the line. As Justice Kagan said, it truly feels like it's all up for grabs, even down to the stuff we don't pay that much attention to, like juvenile justice. There is a real chance that the court could start reversing Justice Anthony Kennedy's decisions protecting juveniles from life without parole. Everything that Americans care about, if they have any interest in justice or equality or liberty, all of that is up for grabs this term at the Supreme Court.
- [46:28]
B
Yeah. So that's a bracing reminder. And we could talk more, and we could also talk about the takeover of, of the federal appellate courts and the district courts, which you've been writing about so diligently. But I think I want to leave us on this note, which is folks are rightly very, very worried about what's happened to the judiciary. The judiciary is the one thing that doesn't get fixed regardless of the results of the 2020 election. What do you tell folks that they should do if they care about issues of the composition of the court, the compositions of the lower federal courts, and the possibility that even, you know, our grandchildren are going to be living in a world that is, at least in terms of judicial outcomes, very much in the shape of Donald Trump's thumb.
- [47:17]
A
Be the camper at Yellowstone who makes herself bigger than the bear. The Republicans in the Senate have confirmed so many wildly unqualified and extreme radical judicial nominees because they don't think people are paying attention. They really don't. Even Susan Collins, who until recently was, was rubber stamping all of these judges. Lately she started to vote against a few. Probably Mitch McConnell released her because they already had the votes. Regardless, these senators don't even seem to care. They just waltz on in and vote for extremists who think, and this is a real example, Sarah Pitlik, who think that fertility treatment and IVF and surrogacy should be made illegal because embryos are children with the full rights of any actual human being. These extremists have anti elder LGBTQ records, anti woman records. They are so vehemently pro gun, they will enable more mass shootings. In fact, there are some instances in which judges already have enabled mass shootings by striking down laws that would have prevented some of these slaughters. These are issues that affect every single human being in this country. And if they aren't paying attention to the courts, they aren't paying attention, period. So speak up. Pay attention to this stuff. Learn these judges names because they're going to be around for the next 30, 40 or 50 years and people should be angry at the havoc, at the chaos, at the cruelty that they're going to be inflicting on the judicial system and on the American people. And if they do it in silence, if they do it quietly, they do it in secrecy or obscure or they obscure their work and nobody pays attention, they win. That's how the bad guys win and get away with it. So be the person who sees the bear and makes herself so big that the bear runs away. You know, I don't know exactly how that ends up working out in terms of practical politics, but I know it would be a huge step up from where we are now when the vast majority of Americans just don't pay attention to these lower court judges at all.
- [49:17]
B
And the Democratic debates include no questions about them.
- [49:21]
A
Atrocious.
- [49:21]
B
Yep.
- [49:22]
A
Yeah.
- [49:22]
B
I think that one thing I will say on behalf of myself is that one of the reasons I can be bigger than I am and bigger than the bear is because people like Mark take really, really diligent and meticulous care to show us what is happening in the footnotes. So, Mark Stern, I know that was depressing, but thank you very, very much. We wish you a happy 2020 and we're grateful for all your work.
- [49:44]
A
Thank you so much. Happy 2020. Hopefully we can all make it to 2021, but I wouldn't bet on it.
- [49:52]
B
Okay, thanks, Mark. Mark Joseph Stern covers the courts and the law and LGBTQ issues and so much more for Slate. His book, American Justice 2019 the Roberts Court of the, came out this past fall, published by University of Pennsylvania Press. And that is a wrap for this episode of Amicus. Thank you so much for listening. And thank you so much for the heaps of letters and questions and comments on the Facebook page. You can always keep in touch@amicuslate.com you can also find us@facebook.com amicuspodcast and this week especially, we really benefit from fantastic mail. So keep it coming. Today's show was produced by Sarah Burningham with extra help from Mike Penzantini at the network studios here in Los Angeles. Gabriel Roth is our editorial director of Slate Podcasts, and June Thomas is senior managing producer of Slate Podcast. We'll be back with another episode of Animals in two short weeks.