Dead Amendment Walking

Summary

Podcast Summary: Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: Dead Amendment Walking
Release Date: December 28, 2024
Host: Slate Podcasts
Description: A deep dive into the complexities of the law, focusing on the Supreme Court's influence on American life, featuring insights from Dahlia Lithwick and Mark Joseph Stern.

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1. Introduction to the Mailbag Special (00:48 - 02:02)

In this end-of-year Jurisprudence Mailbag episode, hosts Dahlia Lithwick and Mark Joseph Stern engage with listener questions, tackling pressing legal issues facing the United States. The episode sets the stage for an in-depth exploration of constitutional matters, Supreme Court decisions, and their impact on everyday Americans.

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2. Birthright Citizenship and Executive Orders (02:03 - 04:51)

Listener Question: Arturo inquires about the administration's potential efforts to end birthright citizenship through executive orders, questioning the feasibility and legal ramifications.

Amber Ruffin's Response:
Arturo’s concern touches on a critical issue. Dahlia explains:

"Any attempts [to end birthright citizenship] would require at least a little time until the majority in the Supreme Court decides to overrule Wong Kim Ark. [...] It’s utterly impractical to switch citizenship in this country away from true birthright citizenship."
[02:10 - 04:51]

Dahlia is optimistic that the Supreme Court will uphold the 14th Amendment's guarantee of birthright citizenship, emphasizing the impracticality and potential chaos of altering this foundational principle without jeopardizing countless individuals' citizenship status.

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3. The 22nd Amendment and Trump's Potential Candidacy (04:51 - 10:13)

Listener Question: Tracy Harnish explores the possibility of Donald Trump seeking a third presidential term, either directly or through a vice-presidential candidacy, challenging the 22nd Amendment.

Amber Ruffin's Analysis:
Amber highlights the rigidity of the 22nd Amendment:

"The 22nd Amendment says, 'No person shall be elected to the office of the President more than twice...'"
[05:30 - 10:13]

She acknowledges fringe theories attempting to bypass this amendment but underscores their legal improbability. Additionally, she speculates on possible maneuvers, such as Trump running as a vice president to ascend to the presidency, though Mark Joseph Stern remains skeptical of their viability.

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4. Equal Rights Amendment (ERA) Ratification Challenges (15:23 - 20:41)

Listener Question: Tom Harnish addresses the push by House Democrats to have the National Archivist recognize the ERA's ratification, despite missing the state count deadline.

Amber Ruffin's Critique:
Amber expresses deep skepticism about the feasibility of retroactive ERA ratification:

"This is so clearly the reality, and I think it's time to accept it."
[18:17 - 20:41]

She references Justice Ruth Bader Ginsburg’s stance, emphasizing that even legal experts doubt the amendment's legitimacy post-deadline. Amber argues that efforts to force the issue without congressional action are misguided and unlikely to succeed, reflecting on the Supreme Court's probable dismissal of such attempts.

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5. Public Confidence and Legitimacy of the Courts (21:50 - 36:17)

Discussion Topic: The podcast delves into the alarming decline in public trust in the judiciary, drawing parallels with authoritarian regimes.

Mark Joseph Stern's Insights:
Mark highlights a New York Times piece by Adam Liptak, noting that public confidence in the legal system has plummeted from 59% to 35% between 2020 and 2024, rivaling trust levels in countries like Myanmar and Venezuela.

"We are sitting in a time when trust in the court has plummeted, making it ripe for authoritarian takeovers similar to other nations experiencing judicial legitimacy crises."
[25:01 - 36:17]

Amber Ruffin's Observations:
Amber underscores the Supreme Court's internal challenges, citing a clip where Justice Alito dismisses concerns about prosecutorial overreach, thereby undermining public trust.

"Justice Alito is one of the single worst malefactors when it comes to talking about the deep state, talking about conspiracies, talking about the rot at DOJ..."
[37:30 - 38:05]

This segment emphasizes the precarious state of the judiciary's legitimacy, suggesting that declining trust could facilitate further erosion of democratic principles.

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6. Communicating the Importance of the Courts (36:17 - 40:28)

Listener Question: Brian Lackman seeks advice on how to effectively communicate the significance of the courts to non-news-consuming audiences without inciting panic.

Amber Ruffin's Strategy:
Amber advocates for continuous, relatable discourse that connects Supreme Court rulings to tangible outcomes in people's lives:

"We need to continue to press into people's lives and what is happening on the ground and draw those connections so that people understand this bad thing that's happening to you."
[25:01 - 40:28]

Dahlia and Mark discuss the challenges of maintaining public engagement and understanding amidst fragmented media landscapes, stressing the necessity of highlighting the courts' direct impact on societal issues such as healthcare, gun control, and environmental policies.

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7. International Perspectives and Judicial Power (31:46 - 36:17)

Listener Question: Stephen Bodson recommends studying international legal systems to understand and prevent authoritarian shifts in the judiciary.

Mark Joseph Stern's Analysis:
Mark concurs, pointing to Poland's judicial manipulations as a cautionary tale:

"Poland has been a great example here. [...] It ensures that the dead hand of that authoritarian administration continued to rule even after the people voted out the authoritarians and voted in a democratic regime."
[31:46 - 36:17]

He emphasizes the uniqueness of the U.S. Supreme Court's unaccountable authority compared to other nations, advocating for vigilance to prevent similar erosions of judicial integrity.

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8. Concluding Reflections and Final Listener Question (40:28 - 48:48)

As the episode winds down, Dahlia and Mark reflect on the role of journalism in elucidating complex legal issues and maintaining public accountability. They acknowledge their efforts to present the "big picture" amidst overwhelming news fragmentation but express both concern and determination to continue their mission.

Final Listener Interaction:
A lighthearted exchange ensues as Dahlia and Mark attempt to answer a comic book character analogy question, highlighting the show's commitment to engaging with all listener topics, even those outside their expertise.

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Key Takeaways

• Supreme Court’s Influence: The judiciary remains a pivotal force shaping American policies, from citizenship laws to gender equality, with significant implications for civil rights and societal norms.

• Public Trust Decline: Alarming drops in public confidence in the courts resemble trends in authoritarian nations, posing risks to democratic integrity.

• Legislative Challenges: Efforts to amend the Constitution, such as the ERA push, face substantial legal and procedural hurdles, emphasizing the need for congressional involvement.

• Communication Gaps: Effectively conveying the courts' importance to the broader public requires connecting legal decisions to everyday life, a challenge amidst fragmented media consumption.

• International Lessons: Observing other countries' judicial systems can offer valuable insights into safeguarding the U.S. judiciary against authoritarian overreach.

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Notable Quotes

• Amber Ruffin on Birthright Citizenship:
  "It’s utterly impractical to switch citizenship in this country away from true birthright citizenship..."
  [02:10 - 04:51]

• Mark Joseph Stern on Public Trust:
  "Public confidence in the US Legal system has plunged... like Myanmar and Venezuela."
  [25:01 - 36:17]

• Amber Ruffin on Supreme Court Legitimacy:
  "Justice Alito is one of the single worst malefactors when it comes to talking about the deep state..."
  [37:30 - 38:05]

---

This episode of Amicus With Dahlia Lithwick offers a comprehensive examination of the current legal landscape in the United States, highlighting the Supreme Court's profound impact on democracy and civil liberties. Through engaging discussions and listener interactions, Dahlia and Mark underscore the urgent need for public awareness and proactive discourse to uphold the rule of law.

Transcript

[Dahlia Lithwick]

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[Mark Joseph Stern]

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[Dahlia Lithwick]

An effective clean at a great price. Think of all the laundry we'll do.

[Mark Joseph Stern]

And all the money we'll save.

[Dahlia Lithwick]

Oh, sheet, Arm and hammer. More power to you.

[Roy Wood Jr.]

Have I Got News for you? Is back for another season. Roy Wood Jr, Amber Ruffin and Michael Ian Black are finding the funny in the week's biggest stories. Have I Got News for you? Return Saturday at 9 on CNN and stream next day on Max.

[Mark Joseph Stern]

Neither snow nor rain, nor heat, nor gloom of night stays these couriers from the swift completion of their appointed rounds. So goes the US Postal Service's informal motto. And it is indeed the Amicus motto this week as we attempt the swift completion of our appointed rounds with this end of the year Jurisprudence Mailbag special episode.

[Amber Ruffin]

And while Donald Trump has said he wants to privatize the Postal Service, this episode remains public and free for all, as any public good should be. So we asked you to send us your questions. Questions. And you surely did. And yes, it's true. This is not an actual physical mailbag. We're not forging our way through snow or rain, but sifting through the amicusatslate.com inbox and finding answers to your sharp, insightful, and sometimes panicked questions.

[Mark Joseph Stern]

Let's get to it. Welcome to Amicus. This is Slate's podcast about the courts, the Supreme Court, the law, and what's happening to it. I'm Dahlia Lithwig, and that is part of my beat at Slate. And welcome to Slate senior writer and my jurisprudential partner in crime, Mark Joseph Stern. Hey, Mark.

[Amber Ruffin]

Hi, Dalia.

[Mark Joseph Stern]

So, Mark, as Lewis Dejoy in this scenario, I nominate you to select our first letter.

[Amber Ruffin]

Okay, Letter number one. Dear Amicus, sure, the new administration cannot wave a magic wand and end birthright citizenship by executive order. And any attempts would require at least a little time until the majority in the Supreme Court decides to overrule Wong Kim Ark. Joking. Not joking. But could they make it worthless or very hard to actually invoke for children of immigrants? For example, to get a passport, you need to provide not just evidence that you were born in the United States, but also evidence that your parents were either citizens or in the country legally when you were born. Could that be done by executive order or just regulations? That's a great question, Arturo. Thank you for writing in. I think you've hit the nail on the head. What you describe is probably how Trump will try to end birthright citizenship. I think he will issue some kind of order that directs federal agencies that issue citizenship documents, like Department of State, Department of Homeland Security, to deny that documentation to the children of unauthorized immigrants and thereby attempt to deny them American citizenship altogether. It will be litigated for sure. And as you say, the order will directly violate the Supreme Court's decision in Won Kim Ark, which established birthright citizenship under the 14th Amendment for the children of immigrants. I am bullish on the Supreme Court affirming that precedent standing by birthright citizenship. I think it's way too late in the day to unwind this guarantee. And I'll also just note, part of the issue here is that it's utterly impractical at this stage to try to switch citizenship in this country away from true birthright citizenship to something like bloodline citizenship to something that is restricted based on parentage. And one of the reasons is that most of us who were born in the United States have citizenship because we were born here. The government doesn't go sniffing around into the citizenship status or immigration status of our parents when it recognizes that we're citizens. It doesn't launch some investigation to make sure that, say, our parents visas were lawful or that their citizenship status is certain. The government just recognizes we were born on this soil and under the 14th Amendment, that makes us Americans. That principle applies across the board to me, to the children of lawful immigrants, to the children of unauthorized immigrants. And so I think it's really, really hard to undo that without jeopardizing a whole lot of people's citizenship status, which I don't think this Supreme Court wants to do. Maybe I'm being naive or optimistic, but again, I don't think that Trump will prevail in this battle. He will fight it out till the end. But this is one I think he should lose decisively.

[Mark Joseph Stern]

I want to say one other thing, which is I don't know if we have, like, a frequent flyer lounge or a, like, ace letter carrier badge, but Arturo is such a, like, devoted emailer and Facebook amicus page listener and contributor. And so we just want to, like, give him early boarding and an extra bag and thank him for being such an amazing friend to the show. Next letter comes from listener Tracy Harnish. And Tracy writes this every so often, Trump throws out, quote, if I'm reelected, politicos talk about Trump being a lame duck and how impossible it is. But We've seen Trump do many things never before imagined, and I'd like to know if there's any possibility of him running again. Considering he has both houses, although slim margins for both, I wouldn't be surprised if they twist themselves into knots to somehow give Trump another term. Is that possible? Could he run again as vice president to Don Jr. Would it be possible to prove that he is actually running for president? And if he did, that as a shadow president? Love amicus. Thank you for the work you do from Tracy. So I put this in the sort of fanciful hypotheticals that sent me spiraling right after the election, when I started asking people, I think, including you, Mark, on the show, but certainly Senator Sheldon Whitehouse, are they just gonna add, like, a bunch of seats to the court? What's gonna stop them? And I think in some ways, it's animated by this, like, ongoing fear that because the law continue to be what they say the law is, one worries that they can just make stuff up. But I am in no way maligning Tracy's question, only because in downtown Manhattan, we had Stephen Bannon at an event that was the 112th New York Young Republican Club Dinner, just absolutely riling up the crowd by saying, are you ready for Trump 28? You know, thousand people in the audience roaring in joy. And then Bannon saying that he consulted another great brain in the Trump brainosphere, Mike Davis, friend of the show, who had actually suggested that the Constitution would certainly allow Trump to run for a third term, although Davis quickly said, no, that would be, quote, crazy. But here's the deal. 22nd Amendment says, quote, no person shall be elected to the office of the President more than twice, and no person who has held the office of president or acted as president for more than two years of a term to which some other person was elected president, shall be elected to the office of the President more than once. So that seems pretty cut and dried. Let me add that there are certainly some nut bars who have suggested, with no legal authority, that this only refers to two consecutive terms. But if even Mike Davis says that this is crazy, I'm going to align myself with Justice Davis and future Attorney General Justice Davis and say, that would be crazy. So while I worry about many, many things, including whether there could be a free and fair election in 2028, I do not worry that Donald Trump, even if he controls both houses and the court, can just, I don't know, gobble up the 22nd Amendment and says it applies to all presidents. But maybe I'm wrong. I've been wrong before. I think, Tracy, you and I need to find a thing to worry about that is not something that Mike Davis says is crazy.

[Amber Ruffin]

Can I make two quick points? I mean, so, first of all, I think they're doing this because Trump is a strongman, and part of the aura of a strongman is that there can be no conceivable limit on his power. Right. And so the idea that he's a lame doc as soon as he reenters office, it's anathema to all that Trumpism stands for. And so they have to perpetuate this fantasy that there's some way around the 22nd Amendment. But I will say, like Tracy points out, one potential loophole here, which is that I think it's absolutely clear that Don Jr. Could run for president in 2028 with Donald Trump as his vice presidential candidate. And at 1201pm on January 20, if they win 2029, Don Jr. Can resign and Donald Trump will become the president. And there is nothing, to my mind, in the 22nd Amendment that forbids that. I mean, we do like a pragmatic, functionalist reading. We can say it goes against the spirit of the amendment, but, like, it doesn't go against the text. As long as Donald Trump is not elected as president for a third time, he could be elected vice president and then become president. And I do not believe there is any limitation on his power then to serve the remaining, like, three years and 364 days as president if that occurs. So let's hope we're not having this conversation in four years. But I do think that it's a way around that. Like, if I know the Trump lackeys as well as I think I do, they are seriously considering at this moment.

[Mark Joseph Stern]

Two tiny, tiny, dim bulbs of hope that I would like to offer up. One, Trump would be 82 and unclear whether he's going to run for vice president at 82. But more emphatically, Mark, can you imagine running Don Jr. The least likable man in politics, maybe even more dislikable than Ted Cruz, to be your front man? I mean, let's at least do the scenario with somebody who actually could win the presidency, and not the guy who just provokes an immediate ick factor of a billion. Is that fair?

[Amber Ruffin]

Okay. Fair enough.

[Mark Joseph Stern]

Okay. All right, next question.

[Amber Ruffin]

Next question. Could the rescinding of Chevron deference actually have unintended positive consequences for the environment by slowing the incoming administration's role? From Ann Seligman. Thanks for your question, Anne. So, you know in theory, the end of Chevron deference could be a problem for the Trump administration. In theory, it reduces agencies flexibility to reinterpret and contort statutes in a shape that they prefer. So it could potentially limit Trump's ability to say enacted deregulatory agenda that that, you know, reduces the power of various labor laws, environmental laws, consumer protection laws, health laws. The list goes on. In practice, I am not so sure that will happen because the same Supreme Court that overturned Chevron deference is going to be judging the legality of Trump's federal agencies rules and regulations. And I fear that this court was very strict on Biden, really handcuffed Biden to a rigid and literal reading of statutes. But I fear that it's going to turn around and really give Trump a very long leash to reinterpret statutes however they want and to give him a kind of new form of Chevron deference that's good for only Republican presidents that grants them flexibility that has ostensibly been taken away to again, reinterpret all of these statutes on the books that are so crucial to the functioning of everyday government that Biden wanted to implement responsibly and that Trump probably wants to guts or use for his own malign purposes. So sorry for the pessimistic take, but I am not convinced that the end of Chevron deference is going to play any meaningful role in preventing the Trump administration from going hog wild on a totally deregulatory and potentially lawless agenda enacted by the executive branch through agencies with little to no input from Congress.

[Mark Joseph Stern]

Yeah, I think I would just really highlight what you just said, which is that Chevron itself, and certainly Chevron, by the time it becomes loper bright, is just a goose gander decision. It's just right whose ox is being gored. And I don't think it's really in any way makes sense to think that this is going to be consistent across administrations. And I also think we should be really mindful of the fact that the one thing that the Trump administration did really badly first time around is that they were messy and sloppy and careless and reckless. And they lost a lot of court cases for being messy and sloppy and reckless. And whether you call it a political question or whatever you want to call it, I think that we are going to have a lot of bad, sloppy, messy, unconstitutional laws that were they or anything like them passed by a Biden administration, the court would nitpick the crap out of them. But they will be messy and they will be sloppy and the court will say that's just fine.

[Amber Ruffin]

Let's hope that the John Roberts of the first Trump term reemerges after four years in hibernation and can pull Kavanaugh Barrett along with him when Trump administration lawyers lie really, really poorly.

[Mark Joseph Stern]

As I have said to you before, fist clutched to the sky, I will not be John Roberts again. More in a moment with me and Mark and your letters.

[Michael Ian Black]

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[Dahlia Lithwick]

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[Mark Joseph Stern]

A great question from reader Tom, who just sent us a link to a piece in the Washington Post about the ERA and said, quote, time is running out, exclamation mark. Tom is referencing a push by more than 120 House Democrats, led by Representatives Cori Bush and Ayanna Pressley, who have signed a letter telling President Biden to urge the National Archivist to recognize the ratification of the Equal Rights Amendment, the era, by simply publishing it. This is one of those Hail Mary constitutional passes. It's a way to try to force the issue of whether after 101 years the ERA can be enshrined in the Constitution in order to, quote, establish an unambiguous guarantee that sex based discrimination is unconstitutional. The upshot of all this is that. But look, it's a sell by date problem. The era was first drafted in 1923 by two leaders of the woman's suffrage movement, Alice Paul and Crystal Eastman. The current version was easily approved by Congress in 1971, but Congress set a deadline for state ratification of 1982, and the push stalled out three states shy of the necessary 38 states for ratification in the last couple of years. A couple of States decided to ratify the amendment on the theory of kind of better late than never. When Virginia became the 38th state to ratify the ERA in 2000, its proponents claim to have pushed it finally across the finish line. But we are decades past this 1982 deadline that was set by Congress for approval. Now these supporters are arguing and listen, it's a cool, creative argument that if the proposal is certified and published by the archivist, he's the head of the National Archives, it just becomes official. The amendment process has been finished. Now, there are a lot of legal questions. There are Office of Legal Counsel memos, there are court cases, questions about whether the states have actually rescinded their support for the ERA and whether they get to do that. ERA supporters are saying, let's get these questions answered in court, but let's move this thing along before it's the death knell for equal rights once Trump comes into office. But we actually have the OLC memo under Biden's stating that they agree with the Trumps OLC that the archivist cannot just certify the ERA as part of the Constitution and move on. And President Biden has said, unsurprisingly for Biden, that nothing prevents Congress from acting on this. But it's not going to come from the archivist. I'm sort of wondering, Mark, if this feels a little bit like saying that Mike Pence could have taken this ceremonial role to certify the votes on January 6, 2021, and turn it into him becoming some kind of legal agent. Feels a little bit reminiscent of that to me.

[Amber Ruffin]

Yeah, I totally agree. I'm against this. It's no secret. I think this is all incredibly misguided. And that's not because I oppose the Equal Rights Amendment. Obviously, I support the Equal Rights Amendment. Obviously. I wish so deeply that it had passed when there was momentum for it and it was still within the deadline in the 1970s and that Phyllis Schlafly had not, not sabotaged it with her merry band of anti feminists. But that is what happened. And what we now see is a dead amendment walking and states trying to push it over the finish line decades after the deadline has passed, as you said, and doing so in this almost absurdist way. I mean, I think that the comparison to Mike Pence acting as, you know, counter of the electoral votes is really spot on because it's like, who voted for the nation's archivist? Who voted for this person? Who even knows who this person is, who is now being asked, and in one case being Sued to just suddenly declare unilaterally that the Equal Rights Amendment, after being dead for decades, is magically part of the Constitution. I think it is, again, really misguided and magical thinking. And I'll also say, like, I find it disappointing that so many millions of dollars now have been poured into this effort. Millions of dollars collectively talking about, you know, lobbying and legal fees and pushing on every front to get the ERA over the finish line. The finish line doesn't exist anymore. I mean, none other than Justice Ruth Bader Ginsburg said before she died that this wouldn't work. She said that she thought that the process had to start from the beginning because that deadline had passed. If RBG doesn't think that this Hail Mary on the ERA will work, how do we expect five or six justices on the Supreme Court? Do we? We don't. I don't think anyone seriously does. And that's who would be deciding this eventually. We would be asking John Rober and Brett Kavanaugh and Amy Coni Barrett to overrule, you know, RBG's own wisdom on this and decree that the ERA is in the Constitution. It's not happening. And I just don't think it's a good use of Democrats and progressives time and money and energy to go on these wild goose chases when there's never, ever, ever going to be any kind of payoff. And no matter how much people who support this scream at me and emails, which you have, and I have read your emails, and I'm sorry that you're angry at me, but this is so clearly the reality, and I think it's time to accept it.

[Mark Joseph Stern]

One last quick coda possibly too, I think I could stretch this into two very, very quick codas. One, Mark is not just talking like this is actually an Obama judge. I mean, this is not just Ruth Bader Ginsburg and Mark, this is an actual Obama judge who has decided it is nonsensical to think that the archivist has the authority. And Judge Contreras wrote, quote, congress set deadlines for ratifying the ERA that expired long. And he just said it would be absurd. His word, not Marx, not RBG's, to interpret it this way. The only other thing that is funny that came up in my research is that in a 1939 case, the court ruled that this question of whether amendment has been ratified within a reasonable period of time is, wait for it, a political question best left in the hands of Congress. So you actually have the court saying it's a political question best left in the Hands of Congress. And you know who loves those political question cases. Let's call it the six justice supermajority at the Supreme Court drops. Mike.

[Amber Ruffin]

All right, shall we move on?

[Mark Joseph Stern]

Yeah, yeah, let's go. This is from Brian Lackman. I would love to hear your best attempt to help people who are not news consumers. And without being panic ridden like I often feel about the impact of the courts, how can we communicate better with people who are not news consumers about this critical topic that was under discussed and under argued as a reason for voting? Brian, you are probably too young to remember the song Killing Me Softly, but your letter killed me softly with your song Killing me softly. This is the thing that Mark and I have been waving our hands about, complaining about, worrying about for, I don't know, Mark, I want to say forever. Just the sense that the court gets covered as though it is like European soccer or as though it is something that is happening in Rome where we read entrails and then we write about them for two weeks in June and we just completely fail week after week, year after year, election after election, to give folks any sense of what the court actually does and how that in turn connects to their lives as they're lived and how all that in turn connects to how we vote and think about democracy. And I'm not quite sure what to tell you, Brian, other than Mark and I have tried as hard as we can to make these issues sort of exigent and urgent. We've thought a lot about the ways in which we have covered the Court in a fashion that disserves the mission that you are setting forth. And we think a lot about this in the context of state supreme courts and state attorneys general and lower federal courts and the entire judicial system. That just gets covered as though it's a Shakespeare play. And I'm not entirely sure how we can do better at this. I know it's a thing that we have many, many editorial meetings about, I will say, and I think this dovetails with another question from another reader. It seems to me as though the American public knows a lot more about what is happening at the courts and why than they did five years ago. And it seems to me that they knew more five years ago than they knew five years before. And so in my view, this is not inevitable. It is a process. I think that court coverage and journalism and television journalism and all the amazing sub stacks that you subscribe to about the courts are doing a really, really good job of filling in that void. But I absolutely agree with you, Brian, that We treated this as though it was a kind of a self effectuating democracy windup toy that didn't have anything to do with anyone's lives for a really long time. Mark, thoughts?

[Amber Ruffin]

Self effectuating democracy windup toy. That is brilliant. Dalia. I agree. I think first of all, most obviously this can't just be a conversation that happens around elections. This has to be be a 247 conversation, which is what we're trying to do here on amicus. I think most amicus listeners are really very read up on this and not the ones who need persuading. So listeners maybe talk to your friends and family here about like what's actually going on in the courts and why it matters as much, if not often more so than what's going on in Congress and the executive branch. And then I would just say, like, we need to continue to draw these clear lines of accountability right around what is happening that is bad that people dislike and how courts are the author of that misery. Like for instance, the incredibly high rate of child poverty in Texas and children unable to get insurance in Texas, a direct result of the Supreme Court blocking mandatory Medicaid expansion by the Affordable Care Act. A number of mass shootings can be either directly or indirectly attributed to court decisions that have blocked gun control laws that would have prevented the shooter from accessing the firearm. There are many, many environmental catastrophes and environmental horror stories that are the result of courts hemming in the EPA and restricting the government's ability to protect us from polluters. And you know, we can go on down the line and we've tried to do this summit slate. It's just really hard because in some ways these are both human interest stories and legal stories. Right? You have to grasp the law and talk about the law, and then you have to talk about the direct impact it has on people's lives. And I think that legal reporters are disinclined to do that as a class. Like, we think of the law still as something that sort of exists above the clouds. We pull up the statute, we talk about the precedent. We need to continue to press into people's lives and what is happening on the ground and draw those connections so that people understand this bad thing that's happening to you. It's not because of something that Congress did or even your state legislature. It's because of something that the Supreme Court or an unelected federal judge did because they're the ones who ultimately rule over you. So we'll continue trying to do it. Thank you for your assistance in Spreading the good word on this amicus listeners. But it's going to be a hard slog and it's going to be slow progress because especially as we enter a new Trump term, Trump sucks all of the air out of the room and it is very, very difficult to get people to care about what's happening at Scot Preach. So I believe I have the next question. This is a fascinating question near and dear to my heart. The author says. Hi, folks. I appreciate your self awareness and your attempts to carefully contemplate your focus, mission and direction under Trump's second term, which he calls Trump First Blood, Part two. Love that. One thing you hinted at at the very end of your Economy plus segment was the need to look for international models. Having lived a few years in Venezuela and covered it as a Reporter for almost 18 years now, I want to put in a strong plug for speaking to lawyers and other legal experts who were there as that country converted from a democracy to a dictatorship. They have done a great job of doing what Mark referred to on the show, offering carefully thought out arguments in real time that counter the tendency for history to be written by the victor and for collaborators to plead that no one could have known. And that comes from Stephen Bodson. Great question, Stephen. So glad you're enjoying our Economy plus segment. You get free cigars for life. I promise on this plane, there is smoking. Um, you know, first of all, I want to say, broadly speaking, looking to international law and international models is so important. Dalia did so in a great episode about the Canadian Supreme Court not too long ago. Everybody be sure to listen to that. We, I think, have written some about how the United States Supreme Court is kind of unique in that it holds this absolute power and its justices are unelected and have no term limits or age limits or, or anything. That there are basically no other countries in the world that give their high courts as much unaccountable authority as the United States does. And I definitely agree that looking to other countries that have failed on this front is also important. I think Poland has been a great example here. You know, the Polish government that was fairly recently voted out of power had stacked the courts with partisans and loyalists kind of in the way that Trump attempted to do in his first term and is about to try to do again. And it ensured that the dead hand of that authoritarian administration continued to rule even after the people voted out the authoritarians and voted in a democratic regime, which was a problem that we had under four years of. Joe Biden. Right. With the Supreme Court essentially acting as the dead hand of the Trump administration. You know, I think that there is only so much we can do to enlighten people about how other countries are doing it better or worse when we are still struggling so much to get people to just understand the basic facts about how we do it here, let alone how we can improve it. But I definitely agree that, like looking down the road at a place like Venezuela or Poland or Hungary and saying, like, you know, this actually began a while ago. This is what happened when they remade the judiciary, and these are the horror stories that flowed from it. I think that can be helpful in getting Americans to take a longer view, a longer perspective of what this will look like from the Supreme Court. Because, you know, the Roberts Court is constituted today. It's really just at the beginning of its revolution. Right. Every single term, while these six are still in power, is going to bring another tidal wave of change to the law that shifts it further to the right. And I worry we're going to be like the slowly boiling frog of law and we're not fully going to realize how much the judiciary is to turning into kind of an authoritarian arm of government. And so I agree that looking to other countries that have seen this same problem can be helpful. I also hope that we can look to some of those countries for solutions, like in Poland, where the pro democracy forces have had to sort of play retaliatory hardball with the courts when the courts try to enact authoritarian policies. So really colorful, interesting, nuanced question. I will continue to say that other countries do it better than we do on the whole, that the Supreme Court should not have as much power as it does, because every other country says that's crazy and they're right. And I really hope that a few years from now we are not feeling like Venezuela in North America and that we've gotten a better grasp on exactly how the judiciary exercises power and how it can be reined in. I'm not super optimistic given the most recent election, but I have to retain some optimism or else I will just crawl into a corner and cry. Dalia, you want to cry with me?

[Mark Joseph Stern]

Well, I want to say that I think Stephen's question dovetails really, really well with another question that we got this one from listener Ruthie Cohorn Rosenberg, who asked about legitimacy. And it seems to me like these questions are a little bit two sides of the same coin. So what Ruthie writes is, quote, I'm curious what you might be thinking about when the Roberts Court court loses its legitimacy when State Supreme Courts just start ignoring them when other courts start, the only way they can enforce their rulings is for lower courts to follow them or state governments or federal agencies. And Ruthie ends by saying between them anointing themselves high priests and the corruption. I've just been wondering and thank you for your note, Ruthie. It feels like Mark just kind of laid down the groundwork for the answer to Ruthie's question too, which is the only power the US Recalls court has is its legitimacy. Right. And so in a way, and, and I'm thinking about a really kind of deeply disturbing, well reported piece by Adam Liptak in the New York Times that coincides unbelievably with mailbag retrieval. And what Adam writes is public confidence in the US Legal system has plunged over the past four years. He cites new Gallup polling and what he notes, and he quotes Tom Ginsburg, who studies comparative and international law, is what Stephen wants us to study at the University of Chicago. And what he essentially says is that the rate at which the confidence in the court has dropped, it's gone from 59% approval to 35% approval between 2020 and 2024. That that is a kind of catastrophic, that's not like a inch by inch drop. That is a cratering of support. What the piece notes is that only nine nations of the 160 nations surveyed in the past two decades have had sharper drops than that in a four year chunk of time. And that's like Myanmar and Venezuela and Syria. So this is catastrophe time. And the last point that I think is made in this piece and in this polling is that the approval for the court, which has plummeted, crosses ideological lines, that it's not just that Democrats were angry after Dobbs or Republicans were angry when Biden was the president across the board. And we've seen this in other data leading up to this year and leading up to this particular poll across the boards, Americans, regardless of whether they like the outcomes, don't trust the courts. One note here. This is a study about all the courts, not just the Supreme Courts. And so who knows exactly how this maps on to how people think about the Supreme Court. But I think Ruthie's question is exactly apt. Which is, and we say this all the time on the show, go back and read the Federalist Papers. By design, the weakest branch, neither the power of the purse nor the sword. The court has nothing but public approval. And when public approval craters in the span of a couple of years, this is when it is ripe for exactly the kind of situations that Mark is describing in Venezuela and Hungary and Poland and other authoritarian takeovers of the courts. And people, people don't care because they won't fight for a court that they don't believe in. So the reason this is so worrying, and this gets to the kind of thorny problem that we have on this show all the time. When we criticize the court, it's not that we want it to be illegitimate. You cannot have a constitutional democracy or the rule of law without a functioning court. But when we criticize the court and the court does, doesn't fix itself in response to that. And I think that's bundled up in Ruthie's question, and it's bundled up in questions about ethics reform and transparency and all the ways that the court behaves badly. You can't get that back. And when you can't get that back and the public says, you're just another political branch and I'm not fighting for you, that's when you're ripe for the kind of authoritarian moves that Mark described happening, happening in other countries and that we saw hints of in the first.

[Amber Ruffin]

Trump administration, as is so often the case. Dalia, you read my mind. Couldn't agree more. I want to just pull out a little piece of audio that shows part of the problem we're experiencing here in the good old US Of A. Right now, which is that, you know, the Supreme Court, so worried about legitimacy, is kind of delegitimizing itself. This is a colloquy between Justice Alito and Michael Dreeben during the arguments in the Trump immunity case, where Alito basically throws the entire criminal justice system under the bus and suggests that it's all a bunch of hooey that we shouldn't have any faith in.

[Justice Alito]

I think some of the fears about groundless prosecutions aren't supported by evidence, and they're not going to get out of the starting game there. There's the old saw about indicting a ham sandwich. Yes, but I think, justice, you had a lot of experience in the Justice Department. You come across a lot of cases where the U.S. attorney or another federal prosecutor really wanted to indict a case and the grand jury refused to do so. There are such cases. Yes, but I think that the other. Once in a while, there's an eclipse, too.

[Amber Ruffin]

What do we even say to that, Dalia?

[Mark Joseph Stern]

The comedy stylings of the utterly humorless. I mean, I think what I say is like, Justice Alito is one of the single worst malefactors when it comes to talking about the deep state, talking about conspiracies, talking about the rot at DOJ and how they can indict just anybody, and then wondering why people have no confidence in the system as a whole. So I wish him the very best of luck in the new year. I cannot wait to see what flag will be flying over their summer home come the summer.

[Amber Ruffin]

So I think this is a good spot to maybe loop around to. A couple of weeks ago, some of you came to our soul searching editorial meeting in the plus bonus episode where we were trying to pick a path between the two truths now shaping our democracy. One, that the law is for suckers and two, that the law and the rule of law remain the most important tools for resisting a descent into chaos and retribution and for protecting the civil rights of the vulnerable. We wanted to interrogate our part in that picture as legal journalists ask how we told the story. We appreciate all of you who listened and especially those of you who wrote in with really, really thoughtful comments and questions and observations. I wanted to share something that Eric from South Florida sent in. Eric said if journalism failed in any way, it was that little attention was given to connecting the data dots so the populace could see the big picture behind all the noise. And I so agree with that and see it as a rising problem with every day that we move toward January 20, 2025. It's a Trump problem. It's a Supreme Court problem. It ties back a little bit to what I was discussing earlier about lines of accountability, right? Talking not just about the bad thing the Supreme Court did, but all of the consequences of the decision. And I think it's going to be top of mind for us as we enter a new era of like escalating authoritarian tendencies with the Supreme Court strangling democracy and civil liberties as ever, and the Trump administration cheering it on and egging it on and doing whatever it can to help, as opposed to the Biden administration at least fighting tooth and nail against it. We have to keep our eye on the bigger picture. It cannot be every little granular thing that Happens gets a 600 word blog post. And I mean, I think we can pull back the curtain a little bit and say we've been having this discussion within Slate, right, since, since Trump was elected again, since even before that, that our job is not to document every little thing that happens in every twist and turn along the way. We want to tell the bigger picture story. We want to be connecting the dots as they emerge. It's something that readers and listeners help us with with all of your Feedback and suggestions and occasionally somewhat scathing but well intentioned criticism. We read it all and we're gonna try to do it as best we can. We won't be perfect, but, like, I think that's all we can really promise. Right, Dalia?

[Mark Joseph Stern]

Right. And I just think we also have to listen. Mark and I are willing to shoulder immense quantum of the blame. And I also think we just need to understand that in a moment of fragmented and atomized media coverage, whether it is, you know, everybody fleeing Twitter for blue sky and everybody fleeing, you know, papers for substacks and everybod fleeing social media for different social media, the idea that coverage is more and more and more atomized, more specialized and less connected is an incredibly profound problem for people like our listeners who are saying connected to the big picture, it's ever harder. And I think one of the watchwords of this show has been it's democracy, stupid. Right? This is not, as Mark said, something we can only think about for the last two weeks of June. This is every single part of the architecture of democracy. But it is incredibly difficult to get people to focus on, you know, every single nut and bolt of the machine of democracy, which, stipulated, is absolutely the machinery of justice in a media ecosystem in which it's just as splintered as it's ever been. And it goes back to this issue of trust that we talked about with the court itself, which is we've got a public that has has as much contempt and distrust for the media, much of it well earned, as it does for the court. So that's what we're sitting in. And Mark and I are striving to continue to earn your trust and to maintain your trust. But it is a really, really big lift right now to do Big Picture when we're all just in a blizzard of small picture news. We're going to take a short break.

[Leon Neyfak]

Leon I'm Leon Neyfak and I'm the host of Slow Burn Watergate. Before I started working on this show, everything I knew about Watergate came from the movie all the President's Men. Do you remember how it ends? Woodward and Bernstein are sitting at their typewriters, clacking away. And then there's this rapid montage of newspaper stories about campaign aides and White House officials getting convicted of crimes, about audio tapes coming out that proved Nixon's involvement in the coverup. The last story we see is Nixon resigns. It takes a little over a minute in the movie. In real life, it took about two years.

[Roy Wood Jr.]

Five men were arrested early Saturday while trying to install eavesdropping equipment.

[Amber Ruffin]

It's known as the Watergate Incident.

[Leon Neyfak]

What was it like to experience those two years in real time? What were people thinking and feeling as the break in at Democratic Party headquarters went from a weird little caper to a constitutional crisis that brought down the President? The downfall of Richard Nixon was stranger, wilder, and more exciting than you can imagine. Over the course of eight episodes, this show is going to capture what it was like to live through the greatest political scandal of the 20th century. With today's headlines once again full of corruption, collusion and dirty tricks, it's time for another look at the gate that started it all. Subscribe to Slow Burn now, wherever you get your podcasts.

[Mark Joseph Stern]

And you are back with me and Mark Stern and our end of year Mailbag special. Thank you again for your support for the show this past year and in the years past. Thank you for your letters to amicuslate.com, we have one truly existential final question from listener Pete Erickson. I hate when I have to call my sons to get advice for a constitutional matter of this enormity, but I did. I had brief embracing calls with the both of them. Here is Pete's note. We are all counting on you to do as Mark says. Read the law and point out how the law is being thrown out the window. Am I the only one, writes Pete, who thinks we are living in a DC comic? Trump is the Penguin and there's the joke, the Riddler. Oh, there's a P.S. from Pete. I think Jack Smith may fit as Batman. So inspired by Pete's email Mark, my question for you is which comic character are you? And you can pick whichever comic universe you like.

[Amber Ruffin]

Well, should I say what I actually said when I read this question?

[Mark Joseph Stern]

You should.

[Amber Ruffin]

I'm not really a comic person and that's no disrespect to comics people. I admire and respect you and all that you bring to the table in our society. And I I just am not part of your world. And so my view is that I want to be Michelle Pfeiffer as Catwoman. If I get to choose any comic character, that I want to be Michelle Pfeiffer as Catwoman if that one is off the table. That I want to be Sharon Stone, the villain in the Halle Berry version of Catwoman, which is wrongly maligned and won a lot of razzies but is actually a camp masterpiece. Watch the basketball scene. Just Google Halle Berry Catwoman basketball and you will be in for a world of delight. I want to be Sharon Stone in that movie, who apparently was so uncommitted to acting at all and so phoning it in in that once, when they were filming a take on set, Sharon Stone's cell phone rang and she answered it with the cameras rolling. I don't know just everything about that. The fictional aspects, the real life aspects. I aspire to be that level of idgaf. And so those are my answers. Either Michelle Pfeiffer as Catwoman or Sharon Stone is Catwoman's nemesis. Is that helpful?

[Mark Joseph Stern]

It's immensely helpful in that it really illuminates why people don't trust journalists. Your answer is, I either want to be Catwoman or Catwoman's archenemy. It's perfect, Mark. It's both things, and neither thing. I love it. I'm just gonna say, as the mother of sons, that this was a difficult journey, and if I told you, man, did I rabbit hole this sucker. And of course, the answer is obvious. Both my sons agree. I would be she Hulk. Of course, I would be Jennifer Walters, talented lawyer, cousin of Bruce Banner, who is the he Hulk, or as we call him, him the Hulk. I love her in every way. I actually love the show. Jennifer Walter spends her childhood in the public library. She goes to law school. She has, as I do, a rage disorder. Quote, in a fury, she once destroyed the entire town of Bone, Idaho. Who else could I be? But I want to say one other thing. Jennifer Walters, among other things, hates big oil. Her nemesis, I guess a guy called Nicholas Trask tried to take over Roxanne oil by constructing something called, wait for it, the Silver Serpent. So she goes after her archenemy, Nicholas Trask, and the rest is history. I want to point out just one small thing, and then I will conclude. I just want to point out that, you know, this stuff is not made for me, but is made for my sons when I have said the word Roxanne. Oy, Silver serpent and bone, Idaho, all in one sentence. This is not made for lady justice at all. The best part of Jennifer Walters. And you can send me your angry email. I can take it like, Mark is the sentence that I just read in, like, my research, on which I must conclude, quote, jen had a small detour with Howard the Duck, comma, during which she traveled to the Bologna verse period. End quote. Any place that has a baloney verse is where I want to be. Mark. This was such an immense treat. It turns out neither of us should be answering, which comic world character are you?

[Amber Ruffin]

Wow. The two most unequipped people in the world to answer that question, and yet we plucked it from the digital mailbag and answered it anyway. That is our commitment to you readers. We will answer questions that we know nothing about, and we will spend a really long time on them. I mean, I don't know about you, Dalia, but it took me a while to really pull that out of my brain. And yours seemed deeply researched. Like you. That was like a concurring opinion, basically.

[Mark Joseph Stern]

Yep. As my children said, because you have a rage disorder and live in baloney verse. Yes, there it is. From our baloney verse to yours. That is all for this episode. Thank you so much for listening. And thank you so much for your letters and your questions and your provocations. You can keep in [e-mail] or you can find [e-mail] Amicus Podcast what are you doing right now? Why don't you go ahead and click play on today's bonus episode of Amicus plus, one of our favorite favorite shows, our annual rundown of the worst of the Supreme Court, this time with audio clues so you can play along with your loved ones at home. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or visit slate.comamicus+ to get access wherever you listen. That episode is available for you to listen to right here, right now. And we will see you there. Sarah Burningham is Amicus's senior producer. Our producer is Patrick Fort, Alicia Montgomery is vice president of audio at Slate, Susan Matthews is Slate's executive editor, and Ben Richmond is our senior director of operations. We will be back with another episode of Amicus next week, and until then, happy holidays and Happy New Year.

[Amber Ruffin]

Oh, oh, oh.

[Roy Wood Jr.]

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[Amber Ruffin]

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