← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
How Amy Coney Barrett is Already Making a Mark on the Court
00:54:19
Plus Michigan’s secretary of state and the real bellwethers for defending democracy.
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- [00:06]
Jocelyn Benson
The use of the legal system to try to undermine democracy over these past few weeks has been a corruption of the process and a blasphemous reflection of people's respect for the rule of law and for their role in it.
- [00:23]
Steve Vladek
They know they have a majority that wants to send these messages. They don't have a suitable merits case in which to do it, and so they're pulling cases off the shadow docket where they can say what they want to say.
- [00:42]
Dolly Lithwick
Hi and welcome back to Amicus. This is Slate's podcast about the courts and the law and the rule of law on the Supreme Court. I'm Dolly Lithwick. I cover the courts for Slate, and as we finally slouch away from the 2020 election, the Supreme Court seems to be making it quite plain they're just not getting involved in disrupt the election results. The court is, however, still quite involved in hearing and deciding a long string of COVID closure cases. We're going to talk about that later on in the show. Our two guests today, both wonderful, are Michigan Secretary of State Jocelyn Benson, who has quite literally been on the front lines of election litigation for weeks and weeks now, and Steve Vladek. He teaches at the University of Texas School of Law, and we're going to talk to him about Bill Barr's abrupt resignation or what, whatever that was this week, and other happenings in the courts. Even later on in this show, Slate plus members are going to get to hear from Slate's own Mark Joseph Stern in our Members Only Slate plus segment, digging into happenings at and around the Supreme Court that we can't quite mash into the main show. If you are not a Slate + member, you can always join by heading to slate.com amicusplus we so appreciate our+ members and all that they do to support our journalism here at the magazine. And a heads up, we may have an extra special bonus segment heading your way next week and it will be awesome. Onward to the show. Our first guest is going to be awfully familiar to those of you who listened to the Slate series Election Meltdown last winter. Jocelyn Benson is Michigan's Secretary of State and she is the author of State Secretaries of State, Guardians of the Democratic Process. It really was the first major book on the role of Secretaries of State in enforcing election and campaign finance laws. It proved to be quite a prophetic view of what went down in November in this most recent election. A graduate of Harvard Law School and an expert in her own right on civil rights, law, education law and election law, Secretary Benson served as dean of Wayne State University Law School in Detroit. In many anyways, all of this deep, deep doctrinal knowledge of election law really did serve her well going into the 2020 election contest. But I think she also experienced a whole lot of other stuff that she maybe did not anticipate. We did not talk about on Election Meltdown, and it's one of the reasons we're so delighted to have her back. Secretary of State Jocelyn Benson, welcome back to Amicus.
- [03:35]
Jocelyn Benson
Thanks. Happy to be here.
- [03:37]
Dolly Lithwick
And when you appeared on Election Meltdown, you were really in uniquely positioned to understand the pitfalls of our election systems because of your book and your scholarship and what you put into place in Michigan. I wonder if you can reflect on how much of what you were worried about when you talked to us last winter actually came to pass in terms of systems.
- [04:01]
Jocelyn Benson
We in my view, succeeded significantly on the system side of things. The infrastructure was secure. We actually built a system that was able to manage an in the midst of a pandemic, an election that had more people voting than ever before in our state and more people voting absentee than ever before in our state. And we actually, throughout the year, reduced the error rate for voters, increased the assurance that every valid vote would count. So the actual nitty gritty, the infrastructure of the elections went extraordinarily well, even better than we'd anticipated because we were able to actually tabulate securely our ballots across the state much more efficiently than we had even predicted going into November. I'm really proud that it turns out following data and being very meticulous and detail oriented and solution focused actually can yield real results and enable us to successfully manage a high turnout election in the midst of a pandemic.
- [05:07]
Dolly Lithwick
That leads to my obvious follow on question, which is the failures turn out to be failures of intangible things, not data, not election workers, not even extensive human error. The failures are big meta political failures, lack of confidence by voters. I wonder what your thoughts are on sort of scaling up now this question of we want people to believe in election systems. You hardened the Michigan election systems and still grievous doubts remained. How do we think about that?
- [05:45]
Jocelyn Benson
Well, I think the other story of this year is that it underscores the important role that leaders have, election administrators, citizens, elected officials have in ensuring democracy works for everyone. I mean, the reality is Michigan's elections were conducted fairly and transparently and securely. The results were an accurate reflection of the will of the Michigan voters. Yet we had people who were unhappy with the results, particularly candidates, seek to tear down our democracy through reducing faith in our elections in a way that to me, underscores that misinformation is the biggest threat to election security today. And it took people, myself and others significant efforts to correct misinformation, and we did so effectively prior to the election. But no one could have expected the depth to which individuals would stoop post election to try to further a false narrative about the security and accuracy of the elections themselves. It's been extremely disheartening and quite a contrast to the reality which we continue to affirm, but will and has done significant damage to the faith that many voters have that their votes were counted even if they didn't agree with the ultimate outcome. And that is going to require all of us to do a lot of work in the months ahead to ensure and restore that faith in our processes.
- [07:25]
Dolly Lithwick
And Secretary Benson, do you have a sense of what that work looks like on the ground? In other words, beyond big conversations about fake news and misinformation, are there things that you are going to think about putting into place Michigan that might help redirect this conversation in useful ways?
- [07:47]
Jocelyn Benson
Yeah, I think it's kind of twofold. As you mentioned, on the ground really is key. I mean, that's where we have to have the conversations and they have to be conversations focused on mutual respect and listening to each other that I want to have with people on the other side of the aisle at the grassroots level, not elected officials, not people with a political agenda, but voters who, many of whom sincerely have listened to leaders they supported tell them that their votes didn't count or that the elections were not accurate, falsely so and are looking for answers. So one I and others, I want to have those sincere conversations with folks and present the evidence and the data and talk through things so that we can help restore that faith. And then I think the other piece to not neglect is that we still had we had 5.5 million people vote in our elections, but 2 million people didn't. And I also want to talk to them about the decision they made, the distance they felt between their voice and democracy, and why that occurred as well. So those types of conversations I want to have next year, hopefully the pandemic will allow them to occur in a sincere and authentic way. And then I think the second track is working with elected officials to, at the federal and state level, promote reforms that are always there's always a need to continue to improve our election processes, the security and the accessibility of the infrastructure. So I'm looking forward to working with lawmakers at the State and federal level on that front as well, with an eye towards sincere efforts to improve the processes as opposed to politically charged and driven efforts to in any way continue this campaign of misinformation that we've endured for the past several weeks.
- [09:41]
Dolly Lithwick
And that's your dividing line, Right? I noted that you didn't want to attend a House hearing on elections because you just, you said this is just more misinformation. This isn't helpful. I know Senator Ron Johnson had a hearing in the Senate where he kept saying, you know, oh, all information is good. We just want to hear everybody's take and why, you know, can't we just listen to everyone? And I think what you're doing, it seems to me what you are concluding is those are not useful exercises in having conversations because they seem to accept all claims as legitimate. What you're, I think, trying to say is we have to have conversations in which we cordon off truth from untruth and take it from there. Right?
- [10:23]
Jocelyn Benson
Well, yeah, we have to all be working with the same set of facts, and we can disagree on what to do about the problems that the facts illustrate, but we have to work from the same set of facts. The issue I had with the state House committee that previously hosted Rudy Giuliani in a hearing that, as the nation knows, was quite farcical and a waste of taxpayer dollars and not really useful for anything other than, you know, continuing to stir up feelings of distrust that are based on lies. I didn't want to be any part of furthering that platform and recognizing, and this is what I said in my letter to the committee, recognizing that questions that they could have, have all been answered. They've answered. They've been answered by me in various forums. They've been answered by others who've come before the committee clerks and experts. The only purpose me coming before the committee would serve is to create additional spotlight on those on the committee who would seek to further this, you know, farcical misinformation that has gone on far too long and that the facts have repeatedly debunked. And I just don't want to be any part of that. And it was also a recognition that we knew that by sending that letter and refusing to attend that people would then say, oh, she did exactly what they said. She doesn't want to answer questions. And that's actually not the case. Obviously, I've answered plenty of questions, as have everyone. As you all know, we had a full audit in Antrim county this week to answer further questions about the accuracy of their elections with evidence that's not the issue. But in some ways it was a choice between allowing or inviting those types of attacks on me versus accepting the invitation and providing an additional platform, an additional content for another news cycle with more or repeated misinformation. And I'd much rather take the punches on behalf of protecting people's faith and democracy than use any platform I have to invite spotlight on these conspiracy theories that serve no other purpose other than to further a partisan political agenda and really harm, wrongfully harm, voters, faith in our processes.
- [12:45]
Dolly Lithwick
One of the things that I was really struck by, that I think you were prescient about both in the election meltdown conversation and I think probably in your book, is that you had an immense amount of faith in state and local elections officials. And I think you really felt that state officials, regardless of partisan affiliation, party affiliation, we're going to step up. And that is really largely, I think, been borne out. And I wonder if you have a theory of the case, what is it about state, even elected officials who are very ambitious, I think we have to sort of bracket the state AGs who signed off on the Paxton lawsuit. But I wonder if you have a theory of why so many people were able to just be clear eyed about what their jobs were and as you note, really clear eyed about what the facts were.
- [13:37]
Jocelyn Benson
Yeah, I mean, that's one thing that we spoke about or I talked with my team about as we endured this these past few months that never forget the truth is on our side, that the voters, the vast majority of voters in the country and in our state are on the side of the truth and the facts and the data. And it's our job to protect and defend that. And that ethos, I think, pervades election administrators. And we saw that throughout the country and throughout the state on both sides, sides of the aisle. I mean, it was a Republican and Democrat clerk, Chris Swope and Tina Barton, who went to Antrim on a snowy day in December to observe and validate the audit that we did there to affirm the accuracy of the machines counting the ballots. And that I think to me, in addition to the successful election and really behind the scenes and as I was saying earlier, the people involved in democracy this year on both sides, it really underscored the importance of people who believe in the process, running the process, not politicians, but just people who are sincerely committed to democracy. And that is to me, by and large, the story of the 2020 elections. The way in which citizens and public servants stepped up, met every challenge that was thrown at them from the election administrator standpoint and even from voters who were in the midst of a pandemic still decided to cast their ballots and vote. That's a really, really affirming thing for the future of our democracy. The fact that there was a small group of people trying to undermine the process and unsuccessfully so pales in comparison to the millions of citizens who signed up to be poll workers, the tens of thousands of clerks and election administrators who worked with their teams in the midst of a pandemic to both protect the process and ensure voters could vote securely. And then of course, the tens of millions of citizens who voted and participated despite a lot of other challenges with the pandemic. And so it really, I think the long term story of this election is going to be one that affirms citizens faith and should affirm citizens faith in democracy. And the blip that we've experienced over the past few weeks will be simply that kind of a reflection of what partisan politicians might do or did at a time when democracy by and large ruled the day.
- [16:07]
Dolly Lithwick
And just connected to that because I think it's worth buttoning down if we can agree that the folks who did not cover themselves in glory in the last couple of weeks are some elected officials, including, I think we can say, people who have bar obligations, people who, at the highest level, who should have been checked and weren't by the legal system. Do you have thoughts about what happens, how going forward some of the real abuses of the law itself might be checked for people who are set and determined to use the law to undermine the law, if you would?
- [16:48]
Jocelyn Benson
Yeah, I think the use of the legal system to try to undermine democracy over these past few weeks has been a corruption of the process and a blasphemous reflection of people's respect for the rule of law and for their role in it. And for the lawyers involved in these cases, I imagine there will be sanctions. I imagine there will be efforts to particularly address those individual elements. I think we can't ignore the fact that the judges were the guardrails. They did defend and protect the system. And as reflected by the fact that nearly every single case was either dismissed or laughed out of court in various different ways. So that was a good thing. It actually created a precedent to show that those types of shenanigans can and will not succeed. But at the same time, we have to recognize that the 2000 election really changed how election law operated with regards to election administration through Bush versus Gore, opening up the courts to entertaining and involving themselves in a lot of these claims. So what I hope then comes out of this cycle 20 years later is a retraction of that. Certainly the courts have a role to play in enforcing the law and protecting the process. But we can't allow the misuse of the courts to continue to expand because it, as we see, was utilized not from a legal strategy, but from a political and PR strategy. The courts were used and the legal system was misused to further conspiracy theories and enable press conferences to happen and continue in a way that is really a misuse of what the courts are there for.
- [18:42]
Dolly Lithwick
I feel like I can't let you go without asking you pretty pointedly. You yourself have really borne the brunt personally in your family of some of this politicization. I know Brian Kemp in Georgia deploring on Thursday attacks on his family. I wonder, and I guess I partly want to ask you this as a woman who thinks really hard about women inequality in addition to election issues, what do you say to young women who are thinking about seeking higher elected office? Is this the new normal? Are we going to just have to gird ourselves to be punching bags, to have our families and children feel vulnerable? How do you think about this in terms of can it be unrolled? Can we work our way back to something less toxic? Or is just the decision to serve in high office, particularly high state office, that used to be fairly apolitical? Is this just a decision to be battered, battered, battered until you can barely take it anymore?
- [19:57]
Jocelyn Benson
Well, yeah, it's a couple of things. I mean, one, I agree we have to have more civility and less toxicity in politics. And that, you know, across the board. And the only thing that's going to change that is more leaders and more voters demanding civility in the electoral arena. Social media certainly doesn't help that it amplifies the toxicity as opposed to the civility. So that's one thing. We need to really take that seriously and embrace that in a consistent way with our words and our actions. But then the other piece of it is, and I'll note that male and female election administrators have faced challenges this year. Certainly myself, Katie Hobbs in Arizona, Kathy Boockvar in Pennsylvania and Barbara Sevaski in Nevada have been at the front of it. But we also saw Brad Raffensperger also and Al Schmidt in Philadelphia and others get in the crosshairs of this sort of. That said, what to me that speaks to is the challenges that throughout history, those who seek to protect and defend democracy often endure. I'm acutely aware of the violence and the violent attacks and the threats and the hateful rhetoric that anyone throughout the history of our country who has stood on the front lines of protecting the right to vote have risked and endured. And that actually is what sometimes you do sign up for. Hopefully not continuously. But, you know, our job as secretaries of State is to guard the democratic process, guard elections, guard our voters and ensure their votes are counted and their voices are heard. And what history teaches us is sometimes that does mean you endure hateful rhetoric, violent threats, and even violence itself, as those individuals who stood on the foot of the Edmund Pettus Bridge in 1965 demonstrated under the leadership of John Lewis and others. So that's also never been lost on me and never been lost on any of us. And it is something that we are willing to endure if it means that other people can vote. Not saying all that, however, that's still not a good thing. We don't want that to be the norm. And we hope that civility will rule the day. But we're also willing to bear the brunt of the attacks if it means that other people are able to vote and have their voices heard.
- [22:15]
Dolly Lithwick
I love what you're saying. I'm hearing the echoes of your early work in civil rights and on the Civil Rights act because I think we do forget that voting is hard fought. It is really not something that is not deeply, deeply enmeshed in a history of violence and threats and intimidation in this country. My very last question for you, Secretary. What are you going to work on going forward? I know you've been hard at work on vote by mail and tweaking antiquated systems. What are you looking at as a systems matter going forward beyond the kind of difficult conversations you mentioned at the top?
- [22:55]
Jocelyn Benson
Well, there's still a lot of work that needs to be done. One to just, I always like to learn, I mean, every election, every election cycle gives us an opportunity to learn what works and what doesn't. And I think what we saw this year is the critical importance of federal investment and support for our elections. And so I know myself and a lot of my colleagues are going to really lean on the federal government to have more of that financial investment in our elections, which was really critical this year and needed. And then secondly, I think, you know, to the extent in Michigan that we saw things that need to be tweaked for future elections, of course, enabling our clerks to have more time to process absentee ballots ahead of time is top of that list. We saw Florida and Ohio have that and deliver results quite quickly, notably we were able to have a full tabulation of unofficial results available 24 hours after the polls closed, which was quite a victory for us in Michigan. But it took a lot of work and it would be much easier to achieve that efficiency of tabulation if we had the laws that other states have of allowing pre processing of ballots voted early. So those types of things we want to tweak and continue hopefully working with the legislature on. There's a lot of productive things we can do to increase the accuracy of our voter registration list, modernize that process, and then also continue to invest in voter education. I think the one thing we saw this year is building the infrastructure for democracy to work was one of three things we needed to do. Combating misinformation was another. But the key center point of both those things was voter education. Proactively educating voters about their rights so that they could be empowered to make sure their voices were heard and follow the rules and make sure they're ballot. That was critical in lots of different ways and we learned a lot about that, about how to effectively educate voters this year that can be replicated in future years. So digging into that and having conversations about that among my colleagues in other states I think will also be a big priority so that we can continue to ensure our electorate is informed and engaged.
- [25:01]
Dolly Lithwick
Jocelyn Benson is Michigan Secretary of State and she is author of the weirdly prescient book State Secretaries of Guardians of the Democratic Democratic Process, which really was the first big book on the role of the Secretary of State in enforcing election laws. Secretary Benson, I know you have been really, really up to your eyebrows and I thank you so much for taking time and for your service.
- [25:26]
Jocelyn Benson
Thank you so much. Always a pleasure and really appreciate your work as well.
- [25:32]
Dolly Lithwick
So our next guest today is an old friend of this show and of mine. Steve Vladek is Charles Allen Wright Chair in Federal Courts at the University of Texas Law School. He's a nationally recognized expert on federal courts, con law, national security law, military justice. He's also the co host together with Bobby Chesney of the popular award winning National Security Law podcast Very Shouty Episode last week. Steve and his wife Karen have also just launched a brand new podcast about being lawyers and parents simultaneously. Steve is CNN Supreme Court Analyst. He's a co author of Aspen Publishers leading national security law and counterterrorism casebooks and he is an executive editor of the Just Security blog and a senior editor at Lawfare. And just reading that makes me want to go back to bed. Steve, so welcome. It's good to have you back. And maybe we should start by saying I was a guest on your podcast this week and tell us a little bit about it and where folks can find it.
- [26:36]
Steve Vladek
Yeah, so Karen and I just launched this podcast, in Loco Parents, which is a podcast about parenting and lawyering, in that order. We claim no expertise, actually. I think the whole point of the enterprise is just that we can all empathize with each other's failures. And episode two is this week. And for our first guest, we had you, which was, at least from my perspective, a delightful and fun conversation.
- [27:00]
Dolly Lithwick
People can get it wherever they get their podcasts, right?
- [27:03]
Steve Vladek
We're on Apple podcasts. I think we're about to be on Google Podcasts. You can find us on Twitter, nlocalparents, Instagram @nlocoparentspod and Patreon patreon.com inlocoparents and here you are.
- [27:16]
Dolly Lithwick
And I'm super happy to have you here. And I think I need to start with Bill Barr, if you would. Because that guy, that guy, because I don't even know. Was it a resignation? Was it a firing? Was it some interstitial mutual divorce agreement to part ways, whatever that was on Monday, why ever it happened, whatever might come next, it does seem like things are still happening at the Justice Department and they could be good, they could be bad, and they might mean that other good or bad things are happening. Do you have any kind of read on what the hell Bill Barr did on Monday?
- [27:52]
Steve Vladek
Not much more than, I think what you just said. I mean, I think, you know, his resignation or his letter announcing his departure is beautifully ambiguous about the circumstances thereof. We know he's out as of next Wednesday, but we have no idea whether it's his choice, the president's choice, or somewhere in between. I guess I'll just say, I mean, the two things that really stand out to me. One, if folks haven't, they should read Joyce Vance's piece about just how terrible an Attorney General Bill Barr was. And Joyce, you know, the former U.S. attorney for the Northern District of Alabama knows of what she speaks and, you know, wholly apart from the substance of Barr's conduct as attorney general, just talks a lot about all of the ways in which he damaged the Department of Justice as an institution. But then the flip side of that is Harton's not the word I want to use. Maybe mildly relieved that in the same tweet thread where President Trump announced that Barr was out, he also announced that the Senate confirmed Deputy Attorney General Jeff Rosen is going to take over as acting Attorney General, we know the President has not felt. Felt bound in the past to elevate the Deputy Attorney General to be the Acting Attorney General? And it strikes me that if he really was planning, you know, three weeks of mischief in the Justice Department, Jeff Rosen's not the guy he would have picked. So, you know, I don't know the circumstances of Barr's departure, but I do think that the elevation of Rosen as Acting Attorney General is, to me, a okay, this is not the next crisis moment.
- [29:24]
Dolly Lithwick
It's so funny because we're so in that crazy loop where, you know, initially we were like, phew, it's not Jeff Sessions. It's gotta be someone better. And then it was someone scarier. And now we're in that same crazy loop where we're trying to figure out how bad this is. Like, does it mean 100 pardons? Does it mean some kind of crazy investigation is launched? And all we can think is, well, nobody could be as bad as Bill Barr, but I'm sure or somebody could. I just shudder to think about it.
- [29:57]
Steve Vladek
I mean, it's an impressive question how we're going to reassess the historic Attorney General terribleness rankings at the end of this administration. I mean, I think, you know, Barr is really now in tough competition with John Mitchell, who has the distinction of being a convicted felon. My sense, Dalia, and I hope this is not just naive and rose colored glasses, is that, you know, the President's energies are. Are directed elsewhere at the moment toward perpetuating this narrative about the stolen election, toward raising money off of it, toward pardoning anybody and everybody he can find. And, you know, DOJ obviously is in the pardon conversation, but it doesn't. There's no requirement that DOJ sign off on pardon. So I guess I'm just going to chalk this one up until we know more. As, you know, the end of an ignominious era at DOJ and not necessarily a sign that, that the next three weeks are going to be worse.
- [30:50]
Dolly Lithwick
I was going to write a piece Steve, called I Am Part of the Resistance Inside the Trump Administration by Bill Barr. I realized I wasn't quite brave enough to tweak him for that, because God only knows, just. Only knows what's coming.
- [31:05]
Steve Vladek
Just before we sort of leave Barr, I mean, you know, everyone has their own favorite sort of horrible thing Barr did to demean the reputation of the Department of Justice. I go back to his Federal Society speech. I mean, the text of that speech, if you haven't read it, is such a remarkably terrifying view of the role of the nation's chief law enforcement officer. And I think there's a reason why, as we're recording this on Friday, one of the few cabinet positions, we still haven't heard Biden announce his nominee for his attorney general because I think that is the hardest pick pick because that is the Cabinet department that I think is in need of the most work and where there's going to be the longest road and the biggest debates about what that road looks like in a Biden administration.
- [31:53]
Dolly Lithwick
Well, it's interesting because my working theory has been the reason I thought we were going to get the AG pick last week. We still don't have it. And as you said, otherwe don't know, a whole bunch of Justice Department picks. And my sense is, and maybe I'm wrong about this, that I can't help but wonder if part of the internal dispute is this question of how do we fix this? How do we hold people to account? Are we going to investigate people? Are we going, you know, Biden's made really clear. We talked about this a little bit on the show with Jack Goldsmith, who I think, you know, is in the camp of we gotta, we gotta move on. But I think he's made clear that he's going to task the Justice Department with making these decisions about how much we go back and try to hold people to account. And I wonder if part of of the internal debate, Steve, is we haven't quite settled on that.
- [32:47]
Steve Vladek
Yeah, I mean, there's a big difference between Sally Yates and Doug Jones and Merrick Garland on that score. And I think those are three very different realities in that. Sally, I think is in the ballpark of most aggressive in thinking about those issues. Doug Jones, I think, is more moderate and Merrick Garland is the sort of keep everybody happy, don't offend anybody. I mean, the other piece of this is if it's Garland, they might be waiting to see what happens in the sense Senate in Georgia because they may not want to free up a seat on the D.C. circuit if the Democrats don't control the Senate. So it's all, I mean, the Barr resignation I think just really puts into sharp contrast just how much restoring the image of the Department of Justice is going to be both a priority for the Biden administration and a challenge.
- [33:35]
Dolly Lithwick
So I wanted to talk briefly, if we could, about the COVID cases. And I know, I listened to you and Bobby Chesney talk about it. I know that. But it is a strange and wending path that we are on where we've gone from, you know, at the beginning of the summer where the court, with John Roberts voting with the liberals, did not want to second guess public health measures that are being instituted by states. Suddenly we're in a whole new court, whole new world, and we have the archdiocese decision that is now being relied upon in all of its non existence for further decisions. That ends on Thursday with the Kentucky Christian Schools case. And I wonder if partly parse out with me your thinking on why the court has been so aggressive on these cases, particularly when Steve, shrugging my shoulders, I say a lot of them are moot, a lot of them raise issues that are just really baffling in terms of of what exactly is justiciable here, who has standing here, what is the harm when the order has already been withdrawn. So talk through what the signaling is to you.
- [34:49]
Steve Vladek
You're not suggesting that the justices apply situational justiciability doctrine, are you?
- [34:54]
Dolly Lithwick
No, no, I'm not. I'm sure there's some unifying theory that you're gonna elucidate. But it's interesting that this is the single source of the greatest anxiety in this moment.
- [35:05]
Steve Vladek
First of all, we should say, I mean, this to me is the is exhibit A so far of how Amy Coney Barrett has already put her mark on the Supreme Court. I mean, you mentioned the two big cases from the summer where Chief Justice Roberts joined the four lefties in leaving intact orders from California and Nevada. And this is a shift, right, since Barrett came along. Now it's five to four the other way. I was struck, especially Dalia, in the New York case case by the chief's dissent because first of all, he doesn't write dissenting opinions that often, and second, he doesn't usually use them to attack his colleagues. And yet here's what happened. I think part of what's going on is that at least some of the five justices who are in the majority in the archdiocese case, Justice Gorsuch perhaps foremost among them, really are in the camp that states are being irrational in some of these Covid restrictions, that some of the lines they're drawing just don't make any sense.
- [36:02]
Jocelyn Benson
Sense.
- [36:04]
Steve Vladek
And that insofar as the sort of lack of logic in those line drawings implicates religion. Here's a perfect moment to look like you are a libertarian while also nodding toward the future of the Court's religious liberty jurisprudence. They already have this case on the docket from this term, Fulton versus City of Philadelphia, about whether they should overrule Employment Division versus Smith. Smith, I see sort of hints that even if that's not coming unfulton, Justice Gorsuch's concurring opinion in the archdiocese case is a pretty powerful sign that it's coming sooner or later. And so I guess it's something that Lindsay Wiley, who's at American University of Washington College of Law, and I wrote about this over the summer, which is there's this broader sort of debate about whether we should be applying ordinary modes of scrutiny to Covid restrictions or whether we should be more deferential to public health authorities. And I think the reality is that the Supreme Court and some other judges are being less deferential, and they're holding government officials and public health experts to a higher standard than we would usually hold them in other cases. And I think that's really alarming. I mean, Justice Sotomayor pointed this out in the New York case that, you know, the majority relies to some degree on statements Governor Cuomo made to find sort of not animus so much, but like to sort of discriminatory intent in the exact context where Trump's statements about the Muslim ban were pooh, poohed by most of these same justices. So I think it's a confluence of three things. I think it is justices who buy into the narrative that some of the COVID restrictions have been overbroad, justices who are looking for opportunities to establish a foothold for this new religious liberty jurisprudence, and Justices who, Dalia, for the first time in a very, very, very long time time, have the votes.
- [37:53]
Dolly Lithwick
And worth saying, because it knits back to your shadow docket concerns that when you have justices who are relying on shifting doctrine that was cuffed up in a hairball late at night and is two paragraphs and per curiam and doesn't fully grapple with the facts of the case, you are building a really kind of alarming house of cards because the reliance on cases that we don't fully know even what the reasoning was, much like what the implications are, that in and of itself, I mean, I feel like you've been talking, including on this show, about the shadow docket for some time.
- [38:28]
Steve Vladek
But, but here it is.
- [38:30]
Dolly Lithwick
Yeah, the shadows in the shadows are extra, I think pernicious. Right.
- [38:34]
Steve Vladek
Not, not only that, but the court is starting to embrace them. I mean, so, so I, you know, I am a, I am a super procedural nerd when it comes to the Supreme Court, and I don't think anybody else cares about this. But one of the remarkable things that's happened after the archdiocese case case is there were cases from I want to, say, Colorado and California, where the churches had applied for emergency writs of injunction, and rather than granting them, the court treated the application as a petition for cert before judgment. So basically a direct appeal of a district court decision granted them, vacated the district court injunction and remanded for instructions to, you know, consider the impact of the archdiocese case, when the whole point of the archdiocese case was that Governor Cuomo got carried away. And so the court itself is now sending the message that when we're issuing these rulings in Covid cases with either no reasoning or in the archdiocese case, a short, unsigned opinion, even though those are fact specific cases, we want lower courts to be taking those very much into account. And I guess I have two sets of problems with that. One is, I actually think it's a real issue on the merits. But two, I mean, you said, you know, you said mootness. I mean, the notion that the court is taking up these moot cases and in moot cases, handing down vague guidance that it's then using to instruct lower courts to reconsider non moot cases, you know, it's hard to explain to the layperson why that's so offensive as an exercise of judicial power, but it is really. It is the court being much more aggressive, aggressive in this context than it has previously. And I think a large part of that is because the speed brakes on that kind of aggressiveness were Anthony Kennedy and then to a lesser degree, John Roberts, and the brakes are no longer. I mean, I don't see Justice Kavanaugh as a speed break here, and I see Justice Gorsuch as almost leading the charge.
- [40:27]
Dolly Lithwick
And maybe just the final layer to this worrisome trend has to be the dissenting justices saying, yeah, yeah, we get it, it's moot, but we're afraid it's going to come back. Right. This kind of strange. We acknowledge there's nothing left to decide, but unlike any other case, we're going to just do something aggressive in advance of actual new moves because Cuomo might.
- [40:53]
Steve Vladek
Yeah, exactly right. There was a line in there. I think it was in Gorsuch's concurrence. Right. That Cuomo might decide to reinstitute this thing. And there are two. I mean, so problem number one is that is usually a consideration that goes into whether a case is jurisdictionally moot and comes as part and parcel of analysis that the government's policy is capable of repetition yet evading review, or that there was voluntary cessation, fine. But on the question of whether the Supreme Court should issue an emergency injunction when no lower court decision did. Right. The party seeking the injunction is supposed to show irreparable harm. And I'm still trying to figure out how someone can be irreparably harmed by a policy that isn't in effect. Right. And that, you know, I mean. And where there's no argument of chilling. Right. Where there's no argument that, like, folks are not going to religious services because they're worried that the policy might be reinstituted. So I just. The court is basically taking procedural shortcuts through the shadow document docket to send messages that they. Now, I think part of it's because they know they have a majority that wants to send these messages. They don't have a suitable merits case in which to do it. And so they're pulling cases off the shadow docket where they can say what they want to say.
- [42:06]
Dolly Lithwick
Yeah. That's why I keep using the language of signaling, because it seems as though this is weird. Flashing lights in the night that don't actually. I mean, there's nothing to affix it to other than. No, we're really, really serious about religious liberty. And assum. Assuming animus, whether or not it exists and assuming that people's dignity as religious actors are harmed, whether or not it happens. And it is. I think part of what you're grappling to explain and I'm grappling to explain is that in some ways it has no effect, but in some ways it is built on nothing. And so it has an effect, even if it's just a signal.
- [42:45]
Steve Vladek
The archdiocese case is a great example. Right. That the Supreme Court's decision actually requires Governor Cuomo to do nothing. Right. And yet the Supreme Court's decision is going to affect how so many local and state officials going forward think about these kinds of restrictions and how many lower state and federal court judges analyze these kinds of restrictions in future cases. And I guess I'm the last person to sort of say the court lacks the power in this context. Formally, I think they have the power to do it. But there are reasons why there are these prudential constraints on their power to issue these kinds of injunctions and these kinds of orders. And some of those reasons sound in not overstepping in a context in which you don't really have a fully formed live case in controversy.
- [43:30]
Dolly Lithwick
Steve, the last thing I really wanted to poke at a little bit with you is a conversation you and I have been having almost since the start of the Trump era about the judiciary and how the judiciary, the public facing we are not going to get drug into your wonky fights. And, and in some sense has survived. Right. I mean, I feel like the sentence I have both said and heard 200 times in the last week is the institutions held. The institutions held. The courts showed up. So I think I want to just ask two pieces of that. One is, yes, the institutions held. I'm not sure this has been a banner three months for elections law. I'm deeply worried that whether you put it in the bucket of Purcell, you know, doctrine, or put it in the dicta that Sam Alito and Brett Kavanaugh wrote about how they're going to think about voting rights going forward, how the court is already weirdly, weirdly has some antipathy toward voting by mail. I wonder if you can answer this purely speculative question, Steve, which is, am I right that even in its silence, in some ways the court, rather than being the hero of the story, is going to move sideways, if not backward, on voting rights going forward?
- [44:53]
Steve Vladek
Oh, I think there's no question of that. I think the only reason why it's not going to look like they're moving backwards is because the rest of us are moving backwards so much faster. And so the relative speed is going to be positive. I guess another way of putting that is the Overton window has moved so dramatically since mid October over what are plausible challenges to state election laws, what are potentially meritorious challenges to election law. I mean, if we had had this conversation two months ago, you know, we probably would have been spending a lot of time talking about how the argument that the Pennsylvania Supreme Court violated the federal Constitution by extending the deadline for receiving late arriving mail in ballots, we would have said that wasn't, that was so crazy it couldn't even command a majority in Bush versus Gore. And yet now I think everyone assumes that the next time, whether in the Pennsylvania case that's still pending or some future case, the court's going there as soon as it can. So, yes, I mean, I think that the Supreme Court has not signed on to the Kraken. Releasing litigation is not necessarily the same thing as saying the Supreme Court has held the line. And in that regard, my real concern is that the, the craziness of the past six, seven weeks has really put pressure on the court to tolerate legal arguments that I don't think it might have tolerated in the past. And I think an example of that is the notion that mail in balloting across the board in Pennsylvania is now actually somehow seriously up in question at the federal level, even though the only real argument that I think has any legs is that it's a violation of the Pennsylvania Constitution, which the Supreme Court has nothing to do with answering. So, you know, I think there are two layers to this problem. The first is that I think the Supreme Court is now conditioned to think that the merits of these cases have moved more toward the craziness. And second, state legislatures are well aware of that. And so I think we're going to see, especially in, you know, states, that Biden won by a little with Republican legislatures, real efforts to actually both scale back access to voting and to rely upon these unsuccessful lawsuits to justify changes to voting procedures that are going to make it, I think, a lot harder for folks to vote in 2022 and 2024.
- [47:10]
Dolly Lithwick
Yeah, you just said it really well. I think that in some sense, if the larger project, in addition to eking out a win for Trump by hook or by crook, was to just foment so much down out in the elections process that the courts might be willing and receptive to hear cases, you know, the vote by mail cases are a good example, but cases that have no merit, but a lot of people think they have merit, and maybe that's enough now. And so I feel like I'm hearing you say, I think you're saying, look, the courts held the line and in some ways covered themselves in glory just for not collapsing under the weight of the stupid Kraken. But I think you're also saying, be really mindful of the ways in which public lack of confidence in the system combined with Republican state legislatures and maybe even God knows who else that want to continue to chip away at voting rights, are gonna use this moment to go forward and make it harder to vote.
- [48:12]
Steve Vladek
And I think the foil for all of this is John Roberts, I mean, who's had quite a week on right wing social media. The Chief justice wrote Shelby county vs. Holt Holder, which I think is going to go down in the books as his most problematic and damaging opinion of his career. At least in my book. My book may not be the book everyone reads, but I think the Chief is someone who is perfectly fine with the project of making it harder to vote ex ante. Right. So the voter ID cases, for example, I think what Crawford was the Indiana voter ID case case, but who is offended by doing it after the fact. And so this, I think, sets up very well for the Chief to go back to being the consistent vote in favor of making it harder to vote on the front end, even if his sensibilities don't think it's appropriate for courts to second guess votes once they've been cast. And I think that has a lot to do with how the court moved through the election cases, especially before Justice Barrett was confirmed. And I think it creates a lot of space for legislature to engage in mischief. And frankly, I mean, Dalia, I think the only real counterweight here and the only potential solution is federal reform, where you have Congress preempting at the federal level state efforts to restrict these ideals. And that's going to depend not just on Democrats sweeping the Georgia runoffs. It's going to depend upon getting some kind of voting rights legislation through a filibuster in the Senate.
- [49:39]
Dolly Lithwick
It's interesting because our other guest today was Jocelyn Benson, who's been thinking so hard about systemic reform at the state level in Michigan, clearly struggling with this much, much larger question of what you do about misinformation. And it does seem to me as though whatever the Supreme Court did in holding the line, the line they were not able to hold was the misinformation line. In other words, half the country still believes this election was stolen. That hasn't changed.
- [50:08]
Steve Vladek
And I think this goes back to a debate that Bobby and I had on our podcast this week, which is, you know, the Texas versus Pennsylvania of nonsense. As a matter of doctrine, the two sentence order from the court was perfectly technically correct. The Texas lacked standing, and therefore it was inappropriate to grant leave to file. But how much better would it have been for a statement from a majority of the Supreme Court that the merits claims in those cases are simply not credible and that even if the claims were justiciable, the court would not be inclined to give them much weight? It would have been unusual. It would have been criticized for overreaching, but I'm not sure it would have been, in the long term, a bad thing for many Americans to hear.
- [50:52]
Dolly Lithwick
Steve, before I let you go, tell me about what your dream audience is for the new podcast and what you hope folks can get out of it, particularly in crappy Covid times.
- [51:04]
Steve Vladek
I think the short answer is, I mean, Karen and I think we started it because, you know, we're very lucky. We're very fortunate. We live in a bubble. You know, we are very privileged. And even for us, it's been a real slog, right, getting through Covid Times. As two working parents, we don't have any claim to special expertise. We don't, you know, we don't have any sort of silver bullet for how to parent. We just think that, like, one of the ways we get through these things is by getting through them together. And especially at a time when we're not able to gather in person, sharing our stories in ways that we can all hear them and talk about them and processes them, I think that has to be at least for us. It feels cathartic. And I hope that for other parents, at whatever point they are in the journey, or for aspiring parents, it's a good reminder that you're going to get through it and that even the people who look like they're doing it with no trouble are going through many of the same struggles on a daily basis and that we're all putting a smile on it. But as Ann Richard said, you can put lipstick on a pig, you can call it Lucille. At the end of the day, it's still a pig.
- [52:08]
Dolly Lithwick
Steve Vladek holds the Charles Allen Wright Chair in Federal Courts at the University of Texas School of Law. He is a nationally recognized expert on the federal courts, constitutional law, national security law, and military justice. Steve, it has been so wonderful to have you back. Take good care. Everybody should listen to your podcast.
- [52:27]
Steve Vladek
Thanks, Dalia. Great to be with you.
- [52:33]
Dolly Lithwick
And that is a wrap for this episode of Amicus. Thank you so much as ever for listening in a very special thank you to some of our new Slate plus members who have signed up and said they did so specifically because of Amicus. If you are not a member, you're missing out on Essential Listening with Slate's Mark Joseph Stern and his unparalleled Supreme Court and federal court coverage. Anyway, we really wanted to give a shout out and a thank you to some of these new members who have signed up with us in the last month. Pamela Bunn in West Hollywood, California, thank you. Annie in Jacksonville, Florida, thank you. George Housen in Durham, North Carolina Garth in Burlington, Vermont Marcus Cade in Wellington, Florida, thank you all. Nelson Murray in Los Angeles Ken Hong in Melbourne, Pennsylvania, thank you all. Thank you for signing up. And you folks can join them by signing up for Slate+@slate.com Amicus+. You can always keep in touch amicuslate.com we love your letters and you can always find us@facebook.com amicus podcast. Today's show was produced by Sarah Burningham. We had research help from Daniel Maloof. Gabriel Roth is Editorial director. Alicia Montgomery is Executive producer. June Thomas is senior Managing producer of Slate Podcast. And we will be back with another episode of Amicus in two short weeks. January 2021. Here we come. Wear your masks. Take good care. Hold each other tight.