← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
SCOTUS, Meet The Broligarchs
01:08:22
Kara Swisher with the briefing constitutional lawyers need to understand big tech’s federal government takeover.
Loading summary
Transcript130 lines
- [00:02]
Dahlia Lithwick
This episode is brought to you by Choiceology, an original podcast from Charles Schwab. Hosted by Katie Milkman, an award winning behavioral scientist and author of the best selling book how to Change. Choiceology is a show about the psychology and economics behind our decisions. Hear true stories from Nobel laureates, authors, athletes and everyday people about why we do the things we do. Listen to choiceology@schwab.com podcast or wherever you listen.
- [00:35]
Katie Milkman
Ladies. You'll end up shopping for your guy's deodorant Right, so try Degree's original Cool Rush. You see, last year, Degree changed the formula and men were mad. One guy even started a petition so DAG admitted they messed up and brought the original Cool Rush scent back. It's clean, crisp and actually smells like someone you want to cuddle. And it's in Walmart, Target and other stores now for under $4. So toss one in your car and find out why it's the best selling men's antiperspirant for the last decade. Degree Cool Rush is back and it smells like victory.
- [01:11]
Dahlia Lithwick
I'm Dahlia Lithwick and this is Amicus Slate's podcast about the courts and the law and the Supreme Court. The nation lost a profoundly humble, brilliant and consequential jurist this past week.
- [01:26]
Justice David Souter
Like the character of an individual, the legitimacy of the court must be earned over time. If the court's legitimacy should be undermined, the country would also, in its variability, to see itself through its constitutional ideals. The Court's concern with legitimacy is not for the sake of the court, but for the sake of the nation to which it is responsible.
- [01:49]
Dahlia Lithwick
Later on in the show, we're going to be spending some time with one.
- [01:52]
Kara Swisher
Of Justice David Souter's former clerks to.
- [01:54]
Dahlia Lithwick
Reflect on his life and legacy. Souter clerks are kind of famously some of the nicest and also the smartest people on earth. And Professor Mary Rose Papandrea is very much true to that mold. Professor Papandrea is going to help me think through what we have lost and.
- [02:11]
Kara Swisher
What we should try to hold on tight to from Justice Souter's years on the highest court in the land. But first.
- [02:22]
Unnamed Speaker
The danger is anti privacy stuff. The danger is surveillance. The danger is taking away due process and your rights. It's sort of like Minority Report. You're convicted before you murder someone. Right? You know that movie?
- [02:37]
Kara Swisher
One of the things we started wondering about within moments of the Trump inauguration was this.
- [02:43]
Dahlia Lithwick
Who the heck are Elon Musk and.
- [02:45]
Kara Swisher
Peter Thiel and Marc Andreessen, Curtis Yarvin and all these weird Billionaire tech Bros. And what do they want from the US Government?
- [02:55]
Dahlia Lithwick
As lawyers, we thought we understood the game board. Harlan Crow and the Kochs entered into an unholy alliance with the Christian right and Leonard Leo.
- [03:04]
Kara Swisher
And together they hoovered up the whole.
- [03:06]
Dahlia Lithwick
American court system, the state legislatures and the regulatory state, plus the right to vote.
- [03:12]
Kara Swisher
Case closed.
- [03:14]
Dahlia Lithwick
We couldn't always understand how that alliance worked out, but we knew it produced.
- [03:19]
Kara Swisher
Citizens United and Hobby Lobby, Shelby County, Dobbs Loperbright, and last spring, an immunity.
- [03:25]
Dahlia Lithwick
Decision that pretty much gave us the second Trump administration. But as lawyers, most of us simply.
- [03:32]
Kara Swisher
Did not have JD Vance crypto network.
- [03:34]
Dahlia Lithwick
States Doge and Elon Musk on our bingo cards.
- [03:39]
Kara Swisher
So when Silicon Valley took a sharp.
- [03:41]
Dahlia Lithwick
Yeet to the right this past January.
- [03:44]
Kara Swisher
And then Washington D.C. found itself teeming.
- [03:47]
Dahlia Lithwick
With 21 year old boys who are stealing all of your data.
- [03:50]
Kara Swisher
And meme coins turned into the coin of the realm, which we were caught pretty flat footed.
- [03:56]
Dahlia Lithwick
So we are going to try to.
- [03:57]
Kara Swisher
Shine a light on this collision between the law and the rule of law and the founding tech broligarchs and their belief systems to see what it means for the rest of us. And there is nobody better to shine that light than Kara Swisher. One of the most important tech journalists working today. She has been a fearless and prescient anthropologist of all things Silicon Valley. She's also the host of the podcasts Pivot and On with Kara Swisher. Her memoir, a Tech love Story, painted.
- [04:29]
Dahlia Lithwick
An up close and personal and pretty.
- [04:31]
Kara Swisher
Damning picture of the rise of Silicon Valley and its most influential figures. Kara, welcome to Amicus. This is an incredibly, incredibly embarrassing thing to admit, but like, I'm just gonna let you take me to school cause I don't know what's going on right now.
- [04:47]
Unnamed Speaker
What do you wanna know?
- [04:49]
Kara Swisher
Before we get to what I wanna know, Kara, I think I wanna start by just telling you how we anthropologists, of all things su, tend to map the world. There are these rich men who as a result of campaign finance reform, sought mass deregulation.
- [05:06]
Dahlia Lithwick
And then there are these religious men.
- [05:08]
Kara Swisher
Who have sought to end racial equality and religious freedom. Same old robber barons and industrialists who blocked the New Deal that iterated itself over decades. Understood. They took over the courts with the help of Mitch McConnell and Leonard Leo and the Federalist Society and the Heritage Foundation. But it turns out that's all last century's story. And we were all kind of asleep at the switch about this other takeover, the one you've been chronicling for years. So before we talk about what it is that the legal world missed in terms of massive government takeover. Can we talk for a moment about how we missed it?
- [05:44]
Unnamed Speaker
I have no idea how you missed it. I don't know what you all do all day. You know, I mean, they're still there. Those people are still there and they're still working away and using. They've been using digital for a long time. The right in general has been much more adept at digital. Way back going to Ralph Reed and all kinds of different groups that were advocating against gay marriage or whatever they happen to have, they were zeroed out from regular media, really. Except Fox News is relatively new phenomena. So they were zeroed out from most mainstream media and so they formed their own medias. They got interested in radio first and then online and blogging and now podcasts. So the right has been very active, including all those people you mentioned. They're very active and that's not going away. They've availed themselves to the tools because they were left out, out of the other tools. And as mainstream media has died, these become ascendant and easy and inexpensive to get to lots and lots of people. And of course Trump is the best example of that as sort of the Twitter president, right? There's all kinds of presidents that meet the moment and he certainly has met the moment of social media exemplified by Twitter. But the idea of direct access to people, right, rather than going through media or using your own up and down chain of right wing media from the very bottom and grot, like 4chan to the top to the presidency and it goes up and down that chain, stopping at Fox News, stopping at the regular own and stuff like that, but also an enormous network of bloggers and podcasters and newsletters and et cetera, et cetera. Radio is another part. So this is not a new thing. It's just that these are new characters you're seeing. And much of the ownership of a lot of this stuff is by tech people, either ones that are more benign but still create these platforms to those who are participating happily, like Elon Musk essentially. And so they own the levers of media now. They own the levers of information and influence. And so that's where we are. It shouldn't probably have been a surprise that some of them, as they're seeing attacks on their businesses for the first time, and I don't actually, it's not a tax, it's normal regulatory scrutiny, they see it as an attack. So let me not say that. And they would do things to create power so they don't get attacked. And so in their estimation. And so there was some like sort of weak willed efforts to rein in tech and Obama just sort of lay down for them as far as I'm concerned. And everybody else did. But Obama particularly was particularly weak and limp in the face of tech ascendancy. Something I warned him about quite a lot, but he didn't feel like the need to listen to me or anybody else who was warning him. But after that, you know, Trump seized the idea of direct, direct to consumer. Essentially DTC is in the tech business and here we are. And so you're just seeing these people as they've. Either they become radicalized like an Elon Musk, or they just see opportunity like a Jeff Bezos or a Mark Zuckerberg, because it dovestails into their economic interests.
- [08:45]
Kara Swisher
So it's interesting because I feel like you're answering this question I've had for the last year or so, which is, I keep saying this is an information problem, not a democracy problem. Like we lost control of how we talk to people. You're saying it's actually an information problem that has become a democracy problem.
- [09:02]
Unnamed Speaker
Yeah. With AI, you're about to lose a. Like I keep warning people this AI thing changes to, to control the narrative of AI is critical because it will write history. Right. And it'll, it'll eliminate history and we'll be able to take legal stuff and just mash it up real quick or find things, or find kind of clever ways. And so right now you're all fighting the other one, you know, social media, yelling at each other on social media when actually all the action is happening somewhere else. Which is why, another reason these guys are close to Trump, because the AI stuff is getting sorted out right now, like who has power and who has influence and who gets things along with, you know, the fuel, which is cryptocurrency, which is the bribery system to, to pay Trump, essentially.
- [09:44]
Kara Swisher
I want to get there in one second, but I do wanna talk just for one beat about Elon Musk. I think he represents everything that is sort of really ominous. But of course he's not everything. He just managed to operationalize it really fast with complete immunity and support. I wonder how long he's been building this crazy Fisher Price, government wrecking, data stealing AI machine. It feels like he, holy cow, hit the ground running on this project.
- [10:13]
Unnamed Speaker
Not really. I think he's been relatively incompetent, actually. I think he hasn't done a very good job. If you were a real good villain you'd have sort of wrapped it up. Instead, he looks like an idiot. He's constantly saying wrong things. He's constantly getting caught out on lack of facts. He's kind of rolled it out in a way that's really bullying versus getting people to go along with him. He had a lot of people supporting him, especially in the Republican Party and some in the Democratic Party for this government efficiency. Now it looks like a joke. Doge looks like an absolute joke, which it is losing money and not cutting money. And he started at 2 trillion, then it was 1 trillion, and then it was 150 billion. And even that's questionable. And in fact, he's probably cost the US government more than he's cut. And he hasn't really made profound change, he's just made chaos. And I think maybe that was his goal. That's certainly been the goal of someone like Peter, Peter Thiel, who's explicitly said just get rid of it, just get rid of it. And you know, Elon wasn't really down. That thing was he's got some interests, such as going to Mars, that he wants. But I always thought there were two things he was interested. One was the actual data that the government spews out and is is not linked to each other. And so in creating an ultimate database, that's one of his dreams. And this is the ultimate database, the US government information, which for a good reason has not been linked together, especially because of surveillance and everything else. And then the second thing is he wants to go to Mars. And this is the payoff for him that he wants. And you seeing Trump doing that, he wants the human race. He's very captivated by the idea that we are going to all die, which humanity's gonna die, and we need to be a multi planetary species. He's not unright in that risk that we take, cause we live on one planet. But the way he's doing it is of course utterly corrupt.
- [11:53]
Kara Swisher
Well, let's do that for a second because I think that whether or not he's been adept at this entirely depends on what the end game was. And you said a couple of different things. And I have to say I always thought the end game was just hoovering up all of.
- [12:06]
Unnamed Speaker
And being that the top dog in AI, he's not by a long stretch. And so it was just a shortcut to do that. And I'm sorry, the last thing you want to do is get out of regulatory scrutiny, of which he was under enormous scrutiny. And if Kamala Harris had come in, he would be in court almost continually with the government, which is something he did before. But I think she was gonna bring to bear some of the. Including some Republicans. You know, J.D. vance and others have been very antitrust focused. Things were coming for them. And then moving away from Musk to Zuckerberg to Google to everyone that was on that dais has had an issue with the government or has an interest in kissing up to the government and complaining about too much regulation, of which there is none. I mean, they're just so. They're whiny about regulation when in fact they have almost zero compared to other industries.
- [12:55]
Kara Swisher
So this is actually one of the places where their interests align perfectly with what the US Supreme Court has been doing. Right. Which is killing the regulatory state, killing the administrative state, getting rid of oversight. Right. This is, this is Sam Alito's dream.
- [13:11]
Unnamed Speaker
But they don't have any regulation. So it's not like they're starting from, like, I would say, you know, we have a lot of regulation on planes, we have a lot of regulation on pharmaceuticals. They don't like it, but we have a lot. You know, we have a body of regulation, almost every major industry, except for tech, that doesn't have any. It doesn't have. It has. The one piece of legislation that exists, essentially protects them. They have had immunity long before Donald Trump had immunity, you know, and that's now problematic to disassemble that would. If they took that away. You know, a lot of people calling for taking away, including Trump at one point. Section 230, that's really problematic now. It's like, shall we take the heart out of our tech industry? That's really, it's. It's so woven in there that it's hard to remove from a speaking of legal point of view.
- [13:51]
Kara Swisher
What you're saying is, while everybody else, like all the polluters and the, you know, big pharma and whatever, actually wanted to deregulate because they were subject to onerous regulation. These guys have been subject to no regulation. They just wanted to complain about it.
- [14:06]
Unnamed Speaker
They just, they always, you know, get out of our way. You're jamming our vibe. You know, they've always, They've been that since the days when I, you know, interviewed Bill Gates when I was at the Washington Post, he was like that. He's like, what do I need Washington for? I'm like, they're gonna take you to court. That's why. That's why you need him. And so these guys, instead of doing sort of the Gates thing, and they want to Just control. So they have enormous lobbying power here. They get in the way of all kinds of legislation, some of it very reasonable, like from Senator Amy Klobuchar, and they just kill it. They just kill all of it, including. And most important, I mean, it's hard to pick among the things we need done. But antitrust reform is something that's critical given the changing nature of our industry. And so we don't really have clear and fair antitrust laws anymore that speak to the moment, I mean, because these companies don't charge anything. But what is their harm, what is their price? And they would say none, and I would say quite a bit because we end up cleaning up their messes almost continually, especially Mark Zuckerberg's.
- [15:02]
Kara Swisher
So you were rounding first really quickly when you said something that I think is important, which is that the federal government has very deliberately siloed off data from each other and from somebody who wanted to suck it all up. And that was years of regulations that kept it from being shared. And one of Elon's, I think, successes is taking down those walls. And I would just be really curious to hear you explain again to lawyers and people who are law curious what that means in terms of repackaging and selling our data. What are they collecting? Are they collecting it? And what do you need constitutional lawyers to know about this, like, creepy penopticon?
- [15:45]
Unnamed Speaker
It depends on the government. If it's a, if it's a China like government, it means you're in. Everyone's in trouble. Like in terms of privacy, in terms of surveillance, in terms of watching you, in terms of getting it wrong. Which is often what happens with these. Like, look at how they're doing immigration. They're arresting the wrong people. They're. They're doing it in such cloddish manner. But it depends on the government. If it's a democratic government, it probably will be used to sell you stuff. Like right now Carrie Lake is using OWN for Voice of America. Give me a break. What an incredibly grift, what a cheap grift that is. And it's shitty propaganda, too. It's not even good propaganda. We used to do good propaganda. The United States. This is. It depends again, if it's a democratic situation, it's used to monitor things they want to monitor, like immigration or finding people and cross referencing. I think that's been the ultimate goal for the Trump administration and Stephen Miller is to be able to find people better and so they can find people to kick out of the country. They have a hard time finding People to kick out of the country is the problem. Because a lot of the people that they have to get their numbers up are hard working people that contribute to our society. You know, whether they're construction people or in restaurants or things like that, these are contributors and they don't get a lot for their contributions. And that's who they're going for. And so you need to track them. Whether they're addresses or they're taxed because they pay taxes and et cetera, et cetera. They do not ride. We ride on their dime, actually, interestingly enough. So anyway, if it's a democratic society, it's to do that probably. It's to use it for AI training and things like that, which helps these businesses because most of AI is being done privately. It used to be a government, government led the way in these kind of things. Now government is not doing anything in it. A lot of stuff came from universities and government and then it got privatized and commercialized. That's a great system. It's a great capitalist system. And that's why we've been ahead. Now all private companies want to run and everything. And then they're like their countries, right? And so they want this data, they want this data to train on. They want to be able to sell to the American people. So that's the best case scenario, is that we get inundated with this kind of crap. The worst case scenario is a Chinese surveillance country, an authoritarian country that follows and tracks us. There's enormous amounts of data. And using AI, you really can track everybody, really, in a way that is really profound. And so the danger is anti privacy stuff. The danger is surveillance. The danger is taking away due process and your rights. You know, you're con. It's sort of like Minority Report. You're convicted before you murder someone. Right. You know that movie that was all about.
- [18:12]
Kara Swisher
Yep.
- [18:12]
Unnamed Speaker
Lack of like, you didn't commit the murder, but they knew you were going to commit the murders. They stopped you and then tried you for a murder you didn't commit but wanted to. And that's like crazy, that movie. Go, everybody, every lawyer, go back and watch that movie.
- [18:23]
Kara Swisher
It's so interesting because as you're talking, it's occurring to me that this week we're seeing exactly the thing you just described, which is the Trump administration reverse engineering an old traffic stop right of Kilmar Abrego Garcia, the guy they renditioned to El Salvador. And they say it's a mistake. And now they're like, oh, wait, we found a video of him sex trafficking listeners. He was not sex trafficking. He was driving people in his car.
- [18:48]
Unnamed Speaker
That's where how they use the information system, whether it's OAN and Fox News or just the whole. That starts with. Again, it starts with 4chan. It goes up and down the thing. They just lie and lie and lie. And then in a situation where truth and lies are together, lies win every single hands frigging down. Because, you know, you lie down with dogs, you get up with fleas, essentially. I think that's what they say with the Trump administration. Yes. With dogs, no, I don't get up with fleas, mostly. Right.
- [19:15]
Kara Swisher
The other thing I'd love for you to do for one quick second because again, you sort of said it, and I want to unpack it, is crypto, which I don't know jack about, and the meme coins and whatever financial product they're pushing out that will make us all slaves to whatever credit card thing they're doing. How does this, this differ from like what again, I'm just referencing the old timey Harlan Crow Chamber of Commerce efforts to buy up government.
- [19:43]
Unnamed Speaker
Their grift is easy to track. They want things, they pay for things. They buy them a nice, you know, you know, a nice, whatever the thing he rides around in, you know, but they buy things for the duds, they buy vacations, it's very easy to track. They give them rides on their helicopters, you know, whatever they want. And so that's pretty easy. That's basically basic, basic grift, essentially. And that's trackable. Right. And then there's the payments, which are more explicit when people get paid for things. And that used to be the provenance of Swiss bank accounts or the Caribbean or wherever it happened to be where you would stash money. Then there's gold, give them gold. That's kind of heavy. And so there's all. This is not a new thing. So crypto is just the newest thing because it's so hard to track, although it's trackable, let me tell you, all you people taking it, guess what? There's a lot of technologists who are tracking this right now. And in about four years, y' all are going to jail for this, what you're doing here. Just so you know, the Internet is written in indelible ink, no matter how tricky you friggin are, because you will be caught if you, if you take any kind of money. So but, but it can create a situation like with the trumps, where they have this coin, which is worthless essentially, but it's a way to give to him. You could do it through this to his company, Truth Social, but again explicit. You can track those sales. If a company, no matter how many shell games they play, if they buy that, that stock hasn't gone up, as you notice, it just doesn't. But it's still worth, it's worthless, but it's worth billions. So that's one way to funnel him some money. The other one is this crypto thing, which is a scam and it's a pure and simple scam, but it's, they think it's untraceable. It is not untraceable. And so it's a way to pay him. I call him a coin operated president. You put the money in, you get what you want out. And look, there's some great things about the blockchain in order to do transactions. There's some really interesting technologies around this. And it started off that way and then it ran into a lot of like grifter type of stuff, you know, the Sam Bankman Fried World and this and that. And then it was getting better. It was like, okay, let's figure this out. Because it's kind of interesting to try to use digital currency in some way. And now it's back to its grifty roots, right, in this way. And so all these coins are just a way to pay the trumps essentially. You know, whether it's through fees, there's often, often transaction fees is like, oh, I'm just doing the transactions, you know, I'm not being given the thing. I'm. It's the same way of paying, I think paying people off. They would say not. So I'll say allegedly, I guess is what I'm supposed to say. But it's very clear that this, this is something that needs to be scrutinized excessively in the next couple of years. To me it's just the grease and real greasy. But it just creates this vote thing and eventually it will crash and eventually other people will get screwed. Every time they do this, someone's getting screwed somewhere. And it's usually his most ARD followers who seem to be able to take endless shit from him and like it essentially.
- [22:31]
Kara Swisher
So it's pay to play, but it's kind of like Grifters Without Borders, right? Everyone can play, foreigners can play.
- [22:38]
Unnamed Speaker
Look, Abu Dhabi just put in $2 billion into this fund. I mean, then there's the real estate grift and the that stuff. But again, plain sight, this stuff is a little more tricky. And who the hell knows what's going on back there. They will know. Just to be clear. I just, I know they think they're getting away with it, but they are. Nobody gets away with this stuff. They don't. There's equally smart technologists scrutinizing it as there are doing it.
- [23:00]
Kara Swisher
I love what you're saying, Kara, because you're reminding me that one of the things we always say is that law has at least one function in like, failing democracies, which is like taking good notes, like making good records. And I love that you're saying, you're.
- [23:12]
Unnamed Speaker
Thinking like, Mission Impossible is coming out with this final movie, Final Reckoning. I love Mission Impossible. And, you know, you think about all the stuff that goes on in that, how they move money back and forth and stuff like that. And so. So that's not far away from, you know, some of it's silly. Like they put a single the end of the world key in one's like, in one pocket. Like, give me a break. Like, if you only have this, then you shall take over the world and be able to launch all the missiles. It's like, come on. But that's fine. It's a movie. But there's a lot of stuff in there where they move money around and, and you know, figure out how to hide, hide transactions and this and that. And, you know, a robust global police force will be able to unravel it at some point. Probably not to the detriment of Donald Trump. He's too old and he'll probably get away with it, but I mean, he's not Al Capone. He's not gonna end up in Alcatraz. Oops.
- [23:58]
Kara Swisher
Alcatraz. Funny. I do like that. You're like master of the universe Impossible. Accent is British More in a moment with Kara Swisher.
- [24:10]
Dahlia Lithwick
This episode is brought to you by Choiceology, an original podcast from Charles Schwab. Choice Sociology is a show all about the psychology and economics behind our decisions. Each episode shares the latest research in behavioral science and dives into themes like can we learn to make smarter decisions? And the power of do overs. The show is hosted by Katie Milkman. She's an award winning behavioral scientist, professor at the Wharton School, and author of the best selling book how to Change. In each episode, Katie talks to authors, historians, athletes, Nobel laureates and everyday people about why we make irrational choices and how we can make better ones to avoid costly mistakes. Listen and subscribe@schwab.com podcast or find it wherever you listen. This episode is brought to you by Netsuite what does the future hold for business? Ask nine experts and you'll get 10 answers. Can somebody please invent a crystal ball? Until then, over 41,000 businesses have future proofed their business with NetSuite by Oracle, the number one cloud ERP bringing accounting, financial management, inventory and HR into one fluid platform with one unified business management suite. There's one source of truth giving you the visibility and control you need to make quick decisions with real time insights and forecasting your appearance into the future with actionable data. When you're closing the books in days, not weeks, you're spending less time looking backwards and more time on what's next. Whether your company is earning millions or even hundreds of millions, NetSuite helps you respond to immediate challenges and seize your biggest opportunities. Speaking of opportunity, download the CFO's Guide to AI and Machine Learning at netsuite.com Amicus the guide is free to you at netsuite.com netsuite.com Amicus this episode is brought to you by Quints so it's getting warmer. It seems that summer is here and already you may be bored of the same old tank top shorts. Tank top shorts give your daily uniform an upgrade with Quints by working directly with top artists, prisons and cutting out the middlemen. Quince gives you luxury without the markup, like 100% European linen shorts and dresses from $30 and gorgeous swimwear and Italian leather platform sandals. Right now I just want to tell you that if you purchase the 100% European linen vest and pair it with a pair of jeans or pants, people are going to think that you are weirdly stylish and you should not correct them. Treat your closet to a little summer glow up with Quince. Go to quince.comamicus for free shipping on your order and 365 day returns. That's Q-U-I-N-C-E.comamicus to get free shipping and 365 day returns. Quince.comamicus and let's get back to my.
- [27:23]
Kara Swisher
Conversation with Kara Swisher. So listen, I've heard you say before that Big Tech doesn't actually care that they're breaking the law, that the difference here is they're not even pretending that the law applies to them.
- [27:37]
Unnamed Speaker
It's like blowing through stop signs. Like there's a stop sign on my street I don't like. I blow it all the time. I'm not going to tell you where that is, but I do it. You know, as I don't like this Stop sign, I don't feel. And it's a terrible stop sign. Let me just say it should not be there. And I like a lot of stop signs and I think they're important, but this one is idiotic. And so I blow it all the time. And that's how they think. That's exactly. Except for me. I do look both ways. I make sure nobody's in the thing, but I don't love the stop sign. But they just decide that's a stupid stop sign, I'm going to completely ignore it. And so they do that time and again. Or they create products that cause damage and then they don't pay the price for it and there's no way to sue them because hello, section 230. They use that as an excuse. Whether it's chatbots that end up allowing young people to have suicidal ideation and do nothing to stop it, or self esteem of girls, there's all these things that are cost that are harder to see or get boys hopped up on online porn, or just create polarization and not do anything to stop it. They don't think it's their responsibility is what it is.
- [28:37]
Kara Swisher
So unlike Trump 1.0 where there was at least the sort of patina of we're trying to constrain ourselves to lawfulness here, the idea is, and this is sort of exactly what we saw at Doge, which is what? Law. There is no law. I am the law. The law doesn't apply to me. It's just a sort of a megalomaniac's view of law and order.
- [28:58]
Unnamed Speaker
I think it's quite sensible if you are trying to do this, because what it is, is who's gonna stop me? Actually there's fewer stops than you think. Right. We all assume, like they can't do that, but they can. Who's there to stop them? Because first of all, what they do is create confusion. This is something tech people love to do, create confusion. It's like, you know, a move fast, break things. That's what they did. That's exactly what they did. And that's a coding term. But they broke it. And the problem is, even if they lose at the very end, they've already broken it. So what's the difference? The effect is USAID is not going to exist anymore. Really? Even if they win every court battle, all the people have scattered to the winds and it's done, right? And the damage is done. And so if the damage is already done, even if you win in court, who cares, right? Like it doesn't matter. Like, look at Voice of America or the Supreme Court decision on trans. Like. Like, we're gonna wait till it gets through the court, which is probably the appropriate thing. I hate to say it, even though I think it's heinous, but then those people don't get to be in the army, and then that's the end of it. They're not going back to a place that's hostile to them. So they've done their work. The work is done. The effect is the same because they've created that. And one thing about Elon Musk, he doesn't mind losing in court. He uses law as a tool, like what he's doing to OpenAI or wherever he goes. He uses law to either shut people or to shut, like, the people who are giving him legitimate criticism. He sues, and so it's a nuisance lawsuit, but it's effective because it slows and chills. Same thing with Trump and CBS News or with Paramount or Facebook paying them. I'm sorry, that was a bribe to leave them alone. Same thing with Twitter doing that to get rid of a lawsuit. These people know how to use legal stuff, either to create havoc, and then even if they lose, they didn't really lose, and they wasted your time. You know what it reminds me of? I'm just listening to Rachel Maddow's prequel, which is a great book, and Ultra is amazing, too. But the sedition TR that went on in the 40s here in this city, and these people were so guilty. They were so guilty, but they created havoc and chaos in the courtroom. And who does that remind you of? Donald Trump? They created all kinds of delays. They made it a farce, they made it a circus, and therefore it didn't work. And these amazing prosecutors built amazing cases, but who cares? Like, who cares? It doesn't matter, because they created such delay and obfuscation, and they were funded by same rich people, same senators that would show up and support them. It's the same thing. Go back and look at the sedition trial in the 40s, and you'll see a lot of echoes of what's happening now.
- [31:27]
Kara Swisher
What you're describing is the sort of cliche of the law industrial complex, which is, oh, it turns out, we thought all these immutable rules were immutable, and it turns out they're just kind of conventions.
- [31:38]
Unnamed Speaker
Well, they're doing. They're doing more because they're attacking law firms, they're attacking universities, but the attacking of law firms is part of the. The dismemberment and then once we'll get back, it will, like, people will push back. But in that timeframe, they managed their goal, which was to disrupt, you know, to disrupt government and give more power to the executive or at least create chaos so regulators don't have power, which is their goal. So they don't really care, you know how the flowers die, but the flowers die and you can't get them back, essentially.
- [32:09]
Kara Swisher
And the fatal flaw here is that the law just takes too long, or that the law depends on shame and kind of public opprobrium. And these guys don't care about either of those things.
- [32:19]
Unnamed Speaker
Neither of those things. They don't care if they get sued, they don't care. They get offended, but they don't care. But, I mean, Trump is the perfect person for that. I always say, and I've said it many, many times, every accusation is a confession. Lawfare. Lawfare by the liberals. Guess what? Guess who really uses it. The right. Come on. Like, it's hysterical. Everything they come out of their mouth, I'm like, oh, that's what they're doing. Like, anything they accuse AOC of, I'm like, oh, now I know what they're up to, kind of thing. They're so stupid that way in terms of, like, just. They're like, you know, like in a Bond movie where also. I love Bond movies, where the villain always tells Bond his whole plot right before he tries to kill him, and then he never kills him, then he leaves him. Like, just wait till he's dead. Like, stay there until he's actually dead with a gun to his head. But no, he tells him the plot and says, Goodbye, Mr. Bond, and then off they go. Bond gets out and then foils the plot that he just was told about. That's what they do, these villains.
- [33:10]
Kara Swisher
They're like, literally, that's the megalomania, right? That's the, like, you don' Fixing the world. You should be grateful to me. And it's kind of the same thing you see in a Bond villain. And you see here, like, there's such a deep sense that they are right and we are all wrong. And, like, if we could only have the, like, capacious vision that they have. I mean, I think that that maps perfectly onto this, like, madness of Silicon Valley.
- [33:38]
Unnamed Speaker
No, I think it's stupidity in many cases. My grandmother used to say, intelligence has its limitations, but stupidity is infinite. I just think they're stupid and then they rely on the stupidity of others. Like the Tesla game. Like, he liked to blame George Soros or The protests. The protests aren't helping. Definitely. But guess who kicked his own customers in the nuts over and over? Guess who did that. Elon Musk told the liberal buyers of Tesla's, you're a bunch of assholes. Like you, I hate you. Like, can you imagine, like, the ketchup people saying, hey, all you people buy ketchup. You're a bunch of idiots. Like, give me a. That's like, the customer is always right. Elon, just FYI. Secondly, not coming out with a great car. I mean, he had a good car. It was a great car car. But it's an old car. Like, we want a new car now. And now with competitors having them. The reason why Tesla's failing is because they haven't come up with a great car. That's it. That's pretty much it. If he had a great car, you would buy that car even if you didn't like him.
- [34:31]
Kara Swisher
Can you tell me what the best possible explanation is for what happened to these guys between Trump 1.0 and Trump 2.0? Like, was it. I've heard it was Covid. I've heard it was the Biden administration over, quote, unquote, regulated them that they forgot to invite Elon to a symposium one time. God manifested. Like, what is the best explanation for the. Like 180.
- [34:56]
Unnamed Speaker
I would center it on Elon. One is Covid. He definitely lost his mind during COVID in some fashion. Like, he got mad at the government for shutting him down briefly, and then he sort of dove into conspiracy theories, which a lot of people go down that highway and then they don't come back. It can be very. If a conspiracy gives you the answers to all your problems, it's a great thing. I think his daughter, who's trans, really fucked with him, but that not her. It wasn't his fault for not seeking therapy and understanding he's the problem. I think that bothered him a great deal, and so he had to find someone to blame. In that case, it was the Internet and the woke mob or whatever. The woke mind virus, whatever that is. Again, a tell. They have the mind virus. It's just they want to accuse others of doing it. Same thing. They always have so many. They're the worst poker players of all time. So I would say financial interests is another thing. He was facing increasing regulatory scrutiny, that's for sure. I think that the Biden administration not inviting him to that one meeting was a moment was a Rubicon for him. He was right. He should have been invited, but they also couldn't because of his anti union activities. Right. So that's an issue. He raged to me about it, like quite a bit. I was, I thought it was a little excessive. And then I did call the Biden administration and say, you're going to pay for this one. You know, essentially I told it to Kamala Harris. I mean, she knew, she knew. They knew. They know what it was. I was like, bear hug that guy right now. Like, I don't, you know, as. As lome as he is, bear hug that guy because he's going to give you trouble. And I think they didn't do that. Right. And I see why they didn't. By the way, I think also the interests. He wants to go to Mars. I think that was one thing for him. I think he. AI is critical and he wants to be able to control, have some leverage in some way or some, you know, step up from other competitors, because there's a lot of competitors in that space. So it's a wide range of things. For the others, I think it's purely financial or shareholder driven. It's that, you know, the Biden administration was just a tiny bit regulatory. I don't think they did anything. They didn't lay a glove on these people. But what's ironic is most of these antitrust lawsuits started in the Trump administration. In the first Trump administration. Of course, it did not start in the Biden administration. I think Lina Khan seemed to bother them a lot for some reason, even though I don't think she was particularly effective necessarily to really getting them. She said a lot. And so I think that bothered her. And you know, a woman of color. Woman of color, that's like, ah, that's how they think. Right. Although Republicans were, including J.D. vance, were pushing this stuff. So they were conservatives, they were called. So it just, it was a lot of things. So Jeff Bezos just wants to compete with Musk in AI and space. And he's also always been like this. If people think Jeff Bezos was liberal, you never met Jeff Bezos. He came from Wall street, came from a hedge fund. Come on. This guy was never. Not for a second. And then he got, he got a new. A new lady. Like, I'm sorry, different lady from his old lady. And that matters his personal life. He decided he wanted to hang with the Kardashians and, you know, that's what he wants. And that, that particular genre has a certain vibe to it. Right. I think I'll buy Venice for my wedding. That's the vibe these people have. So his ex wife would not have done that. That's another thing he was doing more. I'll buy the Washington Post. I'll give to this same thing with Zuckerberg. Did a lot of good works that to me were a little excessive and controlling, but fine. And then he got tired of, like, he never got liked after, you know, it didn't matter what he did. They left, didn't like him or. Well, maybe you're unlikable, probably. That's would be my. By the way, the Trump people don't like him either. He's just unlikable in some fashion. So I think that was it. And then he got into the wrestling or, I'm sorry, fighting martial arts and stuff like that. And the wrestling is next. So he got into that. His body stuff. It's just physically, you can see how they've tried to transform themselves and you can ignore it, but I don't, you know, like, look at that. Look what they're doing. They're transforming their bodies into something they never were.
- [38:37]
Kara Swisher
How seriously do you take the God stuff, The Curtis Yarvin, Peter Thiel, Claremont Institute, JD Vance stuff? Is that real?
- [38:45]
Unnamed Speaker
It's monarchy. It's. They believe in a singular executive. Yes, I think it's very real. I mean, look, Mark Zuckerberg controls Meta. His children will control Meta. Like it's a monarchy. It's not. I don't care how much he goes on about community. It's a monarchy. And so they like this single executive theory, essentially, where the executive is stronger. Peter Thiel, listen, of all these people, he's been very clear from the get, like, this guy hasn't changed. He hasn't. Which is what I appreciate about Peter Thiel. He was always conservative. He was always saying these things. He has not shifted in a pathetic manner. He's been who he is. Right. And he has explicitly laid it out in several books what he wants. And so I kind of am like, all right, you know, he's always been this way and never hid from it, which was hard in Silicon Valley a couple of years ago, to be who he was. I'm not giving him any credit because I think what he says is heinous. But so it's the idea that there's a single executive, that democracy is tired, democracy creates all kinds of negative blah, blah. Read his book. He has a theory about democracy not working out, and he has some strange theories about women. And Yarvin's the same way. It's anti democracy, it's pro monarchy. And in some fashion like that, the executives, these people are super people and they know better and they're smarter. They also believe that other people are smarter than other people. And, you know, they really believe it. Like there are people that are smarter than other people in certain things. Depends on what you're talking about. And in their case, they do think they're better. They do. And it's not like full Hitler. I think it's a mistake for the left to always go to Hitler at every time. It's not that. It's more. It's not. It's not exactly racially based. So it often is. It's more. There are better beings than other beings. Right. And it's depends on, you know, money usually is the. Is the way they take.
- [40:33]
Kara Swisher
I mean, what you're saying is super interesting because it's not really about God. It's about viewing themselves as gods in a sort of world order. And like God is ancillary. But it's certainly about, as you say, unitary executives, strong monarchs, you know, helping stupid people find their way. But it's also a different form of sort of megalomania.
- [40:51]
Unnamed Speaker
There have been megalomaniacs forever. Just keep that in mind. This is not fresh and new. Historically, we've had this. There's been when Henry iv, there was a Texas oilman who funded all this anti Semitic stuff and racist stuff for years back in the 30s and 20s. So this is not. This group of people have been around since the beginning of our democracy. Yeah.
- [41:13]
Kara Swisher
So last question. Last question. It's a chicken egg for me because, you know, I'm watching through lines, like in educating myself about this misogyny, weird religious aspirations, love of monarchy, sense of being a victim. Like there's so many through lines between this John Roberts court and this moment. The deregulatory stuff, the absolute conviction that they're the deciders on all things that they know better than the EPA regulators. Is this just another one of those, like, matches made in hell where their interests are perfectly aligned with the interests of Curtis Yarvin and Peter Thiel and Elon Musk. And that's why this court. Court is like their moment.
- [41:57]
Unnamed Speaker
No, because this court has pushed back on certain things, Right. They still seem to like law. They don't like attacks on judges. And you're seeing some really interesting changes from someone like Amy Coney Barrett, who they're now attacking for probably being sensible. Right. Like, I think she thinks they're nuts. That's my impression is like, I think she thinks they're not smart. That's what I think. You know what I mean, because she looks like that girl who studied every single day and is super smart, even if she's conservative. You gotta give it to her. Right. You know what I mean? Like, that girl a people lot of school. There's always that girl in law school. Right. And I think she's probably disrespects their legal reasoning. If they're gonna like, burn it down, have a good reason to burn it. Like, don't do your dumb. And Roberts is sort of one of these feckless in the middle of guys. I mean, like, oh, well, I don't know if this court is as radicalized as the people who are pushing it. Right. The question is if any of them get sick or something like that, they could definitely put someone on there that's even. That's smart. Yeah. Young and like this, like, that would be a real problem. Right. So, you know, that's the big issue. You know, we'll see. We'll see with this court because it's pushed back on certain things. It's still relatively traditional, even if right leaning. I know everybody loves to attack the Supreme Court, but honestly, the courts have been our best bulwark against this. Even Trump boyneys are like, are you kidding me? Except that lady down in Florida who doesn't seem very smart at all. That's her problem. She's not. She's endlessly ambitious and not very smart.
- [43:19]
Kara Swisher
Shout out to Aileen Cannon, ladies and gentlemen.
- [43:21]
Unnamed Speaker
I think I could do a better job than her. And that's a bad situation.
- [43:24]
Kara Swisher
There is no doubt. But, like, I guess I no longer put a lot of stock in. This is a court that doesn't want to watch, like, the smoldering embers of democracy because, like, they've just made too many bad decisions for that. But I absolutely agree with you. This'll be the test case.
- [43:41]
Unnamed Speaker
Yeah. It's up to voters. I don't care about any of them. They can do as much as they want, but it's up to voters and citizens because no one is here to save us. That. You've got to keep that in mind. You know what's here to save us? Look here, Trump is at all time lows, but the Democratic Party's at all time lows. Like, what in the. Like, this is the biggest. I've never seen an opportunity missed so spectacularly by a group of people when they're arguing over, you know, you gotta like, bounce Chuck Schumer out the door. I'm sorry, like, done. Nice job. Good work. Move along, like, get some really like, scary people in there and give no fucks. Like, and they could argue amongst themselves of what the tactics is, but crazy seems to work for that side. So. So, like, crazy should work for our. Like, not crazy. You know what I mean? Like, we're going to the mat with you people. Yeah.
- [44:25]
Kara Swisher
Kara Swisher is really truly the voice in my head when I think about tech. She's host of the podcast Pivot and On with Kara Swisher and everybody. If you haven't read Burn, book her memoir, run out and buy it. Kara, thank you very, very much.
- [44:41]
Unnamed Speaker
Can I say one other thing for you lawyers? Start using AI. Stop complaining about it. Start using it. Understand its capabilities because the legal profession's gonna get whacked upside the head. But there are opportunities using AI. So instead of decrying it and acting like you're in a Terminator movie and it's the end times, start using it. Start. They are using these tools. Start using these tools and don't be scared of them. Mess it up. Use them. Stop sitting around and doom scrolling and wringing your hands. These are powerful tools and if the right uses them, guess what? We can too. Right? And so start to learn it. And I urge legal people, because of the many professions that are going to implement, law is at the top of that list. So make sure you pay attention. So that's all I'd say.
- [45:26]
Kara Swisher
Thank you, Kara.
- [45:27]
Unnamed Speaker
All right, thank you.
- [45:28]
Kara Swisher
We are going to take a short break and when we come back, we're going to turn to the sad news that capped off this roller coaster of a week. The passing of Justice David Souter.
- [45:39]
Dahlia Lithwick
I'm gonna be talking to his former.
- [45:41]
Kara Swisher
Clerk, Professor Mary Rose Papandrea.
- [45:44]
Dahlia Lithwick
Back in a moment.
- [45:49]
Leon Nayfak
This podcast is brought to you by Progressive Insurance. You chose to hit play on this podcast today. Smart Choice. Progressive loves to help people make smart choices. And that's why they offer a tool called Auto Quote Explorer that allows you to compare your Progressive car Insurance quote with rates from other companies so you can save time on the research and can enjoy savings when you choose the best rate for you. Give it a try after this episode@progressive.com Progressive Casualty Insurance Company and affiliates. Not available in all states and situations. Prices vary based on how you buy.
- [46:24]
Dahlia Lithwick
Americans spend an average of 90% of their time indoors. But did you know indoor air can be up to 100 times more polluted than outdoor air? Breathe Easy with Air Doctor. The award award winning air purifier that eliminates 99.99% of dangerous contaminants. Like allergens, viruses, smoke, gases, mold, spores and more. Air Doctor was voted best air purifier by Newsweek. So it's no surprise that 98% of Air Doctor customers agree their home's air feels cleaner, safer and healthier. Head to airdoctorpro.com and use promo code amicus to get up to $300 off today. Air Doctor comes with a 30 day money back guarantee plus a 3 year warranty. An $84 value free. Get this exclusive podcast only offer now at airdoctorpro.com that's a I R-O C T-O-R P R O.com and use promo code Amicus. Justice David Souter died on Thursday at his home in Concord, New Hampshire. He was 85. Whereas the phrase no more suitors became a Republican battle cry for decades, a.
- [47:49]
Kara Swisher
Warning not to confirm any justices who would drift to the left, left today, the words no more suitors stand as something of an elegy. The number of public figures who manage their work in their lives with such.
- [48:03]
Dahlia Lithwick
Humility and grace has become vanishingly rare. In this moment.
- [48:08]
Kara Swisher
Justice Souter was less a conservative who moved to the left than an institutionalist who watched the court and the world as he knew it, swept away in.
- [48:17]
Dahlia Lithwick
A tide of wealth and ideology.
- [48:20]
Kara Swisher
Here to share some personal insights on a man who embodied both the grandeur and the humanity of being a Supreme Court justice is one of his former clerks, Mary Rose Papandrea. Professor Papandrea is Samuel Ashe Distinguished professor of Constitutional Law at the University of North Carolina School of Law. Her teaching and research interests include constitutional law, media law, civil procedure, national security, and Professor Papandrea clerked for Justice Souter at the supreme court in the 1997 term. Mary Rose, welcome to Amicus. And I think before we start, I just want to tell you and all of the sort of Souter family of clerks how much I am just grieving with you right now. He was an extraordinary man.
- [49:08]
Mary Rose Papandrea
Oh, thank you so much. It really means a lot to me to hear that. I've been getting messages all morning and really means a lot. Thank you.
- [49:17]
Kara Swisher
I think I just want to start with the personal, if we could, and then we'll build to the doctrine. I think everybody who ever knew or I would say met Justice David Souter has some story about how very, very, very much he had no sense whatsoever of being a big deal in this world. He just kind of moved through the world like he was just, you know, a guy. Do a sort of a classic David Souter story that you would like to share, to give listeners a sense of what I just keep calling this sort of radical humility and.
- [49:57]
Dahlia Lithwick
Just a sense.
- [49:58]
Kara Swisher
Of like human proportion that he had for a remarkable public figure.
- [50:04]
Mary Rose Papandrea
Yes, I love telling this story. So I only had one. One interview with the Supreme Court Justice. And as I tell my students, one is all you need as long as you get it. So I just had one and I came to the court for my interview. It's very imposing, especially as a young. I think I was clerking on the DC survey at that time, but it was very imposing. And I get to the interview, my heart is racing and I'm so stressed waiting in chambers for the justice to emerge from his office. And suddenly the door opens and this sprightly man in a three piece suit comes bounding out of his office with the biggest smile on his face, with his arm extended, saying, mary Rose, so nice to meet you. And immediately I relaxed. You know, I just knew that he was a good person, he was a kind person, and that we were gonna have a good hour together. And that was how I went into it, thinking, I'm just, I'm getting to meet a Supreme Court justice. This is really cool. And I sat with him for an hour and we talked about all sorts of things. Not about my views on constitutional interpretation or anything like that. We talked about books, and we talked about our families and we talked about running. And I had a feeling I had a good shot at the job when I told them I just run the D.C. marathon because he was a big runner and I think he liked that. And I left and I thought, you know, that was the most amazing hour of my life. And even if I do not get this job, I just met the most remarkable man. And it did take a little while. A few weeks later, my phone rang at work and I picked it up and he said, mary Rose, this is David, David Sutta. And I was so startled because I. He started with the word David. Like, in my head, I'm processing, who are the Davids? I know I worked for two other judges and I've encountered many judges. And it's pretty unusual for a judge to introduce himself as anything but judge or justice. You know, this is a small little story. It's my personal story, but I think it gives you a little window into his humility. And he's just a pretty down to earth.
- [52:24]
Kara Swisher
And can you tell us for a moment what it was like to clerk for him? Different chambers have such totally different ecosystems, and some of them are sort of frenetic energy and some of them are crazy micromanagement. What was the vibe in the suitor.
- [52:41]
Mary Rose Papandrea
Chambers, the way the chambers were set up? And I think this is true for most of the justices. He only had room for two clerks at a time to be near him. And the other two were in the attic, as I referred to it. Two of us were up in the attic to start. I was one up in the attic. And I didn't interact with him all that much because he asked for us just to do two page memos. So unlike other justices who might ask for a summary of every brief, including every amicus brief, like Justice o' Connor was famous for that, he just really wanted us to get right to the point and make our recommendation. And so in the fall, while I was in the attic, I would just get a call from him when it was time to discuss the cases that I was assigned. And he would very often just say, mary Rose, thank you for your memo. And I agree. And that would be it. That would be was not this prolonged conversation. So I wasn't really treated to engaging with him until I got my first opinion assignment. Then it got serious. I also soon thereafter moved into the downstairs office. So things changed a lot, lot at that point. He wrote everything. He didn't do the first draft. Some justices do the first draft and then give it to the clerks. He would have us do the first draft. But I often wondered why. I think he was doing it as a maybe a service to us, to help us learn and maybe write some more. It wasn't because he thought what we did was particularly useful. You know, when I would get the opinion back from him, very little remained. I know I had a friend who said leave a code word, like put a code word in the opinions you write. And I was like, there's no possible way I could do that because no word that I put in a draft ever ends up in the final version. He also had a way with words. I remember one time he edited my piece and he inserted a word that I had never heard of. And I told my co clerk, I said this is not a word. I was insistent it was not a word and I not going to say what it was because at first I don't remember, but second, it'd probably be embarrassing. But anyway, he. I went to the dictionary. It was in the dictionary, but it also said archaic right next to it. So I felt a little bit better that I maybe had a good reason not to know that word. So you know, he was a very careful and deliberate justice in that way he took his work very seriously. I, you know, I love telling these stories, but I think it just shows you that he was doing the work. I'm not sure he needed us, but it was wonderful once I was engaging with him on opinions, to have that back and forth. And, you know, I thought I had some deep thoughts and I mean, he took me much, much deeper than I had ever imagined. So I learned a tremendous amount that year.
- [55:26]
Kara Swisher
Mary Rose, you're capturing a couple of things that struck all of us who ever met Justice Souter, which is he just seemed like he was preserved in amber from some other century. You know, he just, I remember thinking, he just seemed like, you know, he was in a, like Cary Grant movie or, you know, like he was just like a, like a black and white, you know, movie from another time. And yet he was so not zealous about the past. I mean, I think he was really mindful of the ways in which he lives in this moment right now. And there are exigent problems that need to be solved. And I sort of love that duality of the sort of, of like simple man who ate an apple and yogurt, you know, Corinol on the apple every day for lunch, who was just kind of like out of time and then other ways in which he was in time because he was so mindful of the present world.
- [56:25]
Mary Rose Papandrea
Yeah, you're so right. Because he easily could have gone the other way where he would be committed to this sort of old fashioned way of life with no television or Internet or email or even a typewriter. But he was very much of the time and he engaged with the present moment. He was very aware. I was just listening to a clip about his confirmation hearings where he talked about how every case impacts someone. You know, at the end of the day, whatever they do will impact someone. He was very keenly aware of the importance of his job and he took it very seriously. But he was not trying to impose old time, the old time, or go back in time and figure out what the framers would have said about some new issue that could have been his approach, but it surely was not. So you're right, you've isolated something really interesting about him.
- [57:18]
Kara Swisher
I was just thinking about that colloquy he had at his confirmation and I guess we should bracket this by saying, you know, he was supposed to be right. He was supposed to be a stalwart conservative and John Sununu and, you know, George, George Bush and everybody thought he was going to be sort of the anchor for the conservative revolution. And yet at his confirmation hearing, he talked glowingly of Justice Brennan. He hadn't been a firebrand. Nobody really knew who he was. He hadn't been on the bench for very long. And then there's this funny colloquy with Senator Chuck Grassley, who's trying to sort of trap him into articulating his views on judicial activism. And his response was, was just kind of beautiful.
- [58:06]
Chuck Grassley
Judge Souter, those who advocate a greater activist role for the Court say that the broad and spacious terms of the Constitution lend themselves to court made solutions when the political branches fail to act. What is your sense of this perception that the courts, rather than the elected branches, should take the lead in creating a more just society?
- [58:30]
Justice David Souter
I think the proper way to approach that is that courts must accept their own responsibility for making a just society. One of the things that is almost a factor or a law of nature as well as a law of constitutional growth is that if there is in fact a profound social problem, if the Constitution speaks to that, and if the other branches of government do not deal with it, ultimately it does and must land before the bench of the judiciary. If in fact the Congress will face the responsibility that goes with its 14th Amendment power, then by definition there is to that extent not going to be a kind of vacuum of responsibility created in which the courts are going to be forced to take on problems which sometimes in the first instance might better be addressed by the political branches of the government. I guess the law of nature that I'm referring to is simply the law that nature and political responsibility, constitutional responsibility, abhor a vacuum. I've spoken to this point before and I think I alluded to it yesterday.
- [59:55]
Chuck Grassley
Are you saying that the Supreme Court should act because there's a vacuum there or because there's a cause within the Constitution for the courts to act as opposed to because the political branches have not acted?
- [60:08]
Justice David Souter
The Supreme Court should only act and cannot only act when it has the judicial responsibility under the 14th Amendment or any other section of the Constitution. But the Supreme Court is left to act alone when the political branches do not act beforehand.
- [60:27]
Kara Swisher
Both a grand notion of the role of courts, but also that they have to live with what they have done. And that sort of, again, that paradox of the majesty of the law and also the humility of the law feels like it's kind of lost in this moment.
- [60:43]
Mary Rose Papandrea
I was just reading a little bit about the confirmation battles and then Bush later nominating Harriet Meyers, and then that tanked and then he nominated Alito and I'm sorry, anyone who's a big fan of Justice Alito here, but Justice Alito is the antithesis of Souter in every possible way, and we don't need to pick on individual justices, but I just think to the extent. Extent that we see a very different Court right now, particularly certain members of the Court, it's unfortunate because Souter represented, I think the, you know, even if you didn't like his. Some of his decisions, he. He represented aspiration of what judges should do, what they can do, how they approach their job, the seriousness with which they approach it, not serious about themselves in any way. You know, Dalia, I don't know if you know this, but Justice Souter was adamant that there not be a memorial for him. I personally hope we can. The law clerks, the Souter family, can get together and honor him, because I need that to process my grief. But he did not want that spectacle, and he was very adamant. So, I mean, unless the Court overrides his wishes, and, you know, I don't know how the internal workings of the Court go, but you may have noticed on the announcement from the Court, it didn't say, oh, details will be forthcoming. I mean, he did not want that. So it was never about him. He did not want the public's attention. He really wanted to do his work, and he enjoyed the work. But I think he enjoyed the work in an intellectual way. I think, you know, he hated D.C. and there are a lot of things about the job he didn't love, but I think he enjoyed the challenge of it, and. But it was never about him.
- [62:33]
Kara Swisher
It's funny, because I was trying to imagine that sort of spectacle of the law clerks, you know, a raid, you know, and I actually. I didn't know that he didn't want that, but, of course, it's so perfectly fitting. Mary Rose, before we say goodbye, I'd love to ask you just one last question about his approach to the Constitution, to originalism. He sort of famously gave this landmark speech where he talked at Harvard commencement about how he tried to just be pragmatic, to just have a functional toolkit. And there's this gorgeous line that he says toward the end of it. This is from 2010, where he says.
- [63:15]
Justice David Souter
If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned by relying on reason, by respecting all the words the framers were wrote, by facing facts, and by seeking to understand the meaning of those facts for living people.
- [63:47]
Kara Swisher
And it's just such an elegant formulation of how the notion of doing sort of strict textualism to the peril of people, strict originalism to the peril of people, that there was no one unity, very coherent, endlessly simple sort of like approach to doing this work, that it was just this evolving, organic effort to do your best. And I wonder if maybe just by way of saying goodbye. And again, I don't want to harsh on any sitting justices, but it just felt like it was such a humble and careful craft that he tried to honor.
- [64:29]
Mary Rose Papandrea
When I clerked for him, I never sensed an overriding judicial philosophy of like you're saying, you know, textualists or originalist or, you know, he took every case as it came and really grappled with it in all ways, you know, looked at it from every angle and he was just so thoughtful about it. But he wasn't dogmatic in any way and he was just trying to do his level best, you know, to do justice. I really think he just really tried. And that's what I hope we can see more of from the court. I know outcomes matter, but the commitment to trying to not have it be about yourself and really grapple with the difficult questions before the court in an honest way without preconceived outcomes and narrow judicial philosophies.
- [65:18]
Kara Swisher
Mary Rose Papandrea is Samuel Ashe Distinguished professor of Constitutional Law at the University of North Carolina School of Law. She clerked for Justice Souter at the high court in the 1997 term. Mary Rose, our hearts go out to you and your co clerks and just know that we are so, so grateful for all the ways that Justice Souter really lit up the world for us and the way his clerks continue to do so going forward. Thank you for being with us.
- [65:49]
Mary Rose Papandrea
It's my pleasure. Thank you, Dal.
- [65:57]
Dahlia Lithwick
And that is all for this episode.
- [65:59]
Kara Swisher
Thank you so much for listening and thank you so much for your letters.
- [66:02]
Dahlia Lithwick
And your questions and your comments. You can keep in touch@amicusatslate.com you can find us at facebook.com amicuspodcast you can leave us a message in the comments if you're listening to us on Spotify, or you can rate us and review us in Apple Podcasts. Coming up next, we have a really powerful, packed bonus episode of Amicus Plus. Mark Joseph Stern will join me once more in the Amicus plus smokeless cigar bar to talk about a very good news, bad news kind of seesaw week. Eagle Ed Martin is no longer allowed to squat in the U.S. attorney's office for the District of Columbia.
- [66:39]
Kara Swisher
Yay.
- [66:40]
Dahlia Lithwick
But Donald Trump has announced another Fox News star will be pursuing his vengeance agenda right over the There Also a good result finally in the North Carolina Supreme Court race that has been dragged out by some seriously anti Democratic moves.
- [66:56]
Kara Swisher
Yay.
- [66:57]
Dahlia Lithwick
Good result but bad omens in that. You can hear all that and more by subscribing to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify or visit slate.comamicus to get access where you wherever you listen. That bonus episode is available for you to listen to right now.
- [67:17]
Kara Swisher
We'll see you there.
- [67:25]
Dahlia Lithwick
Sara Burningham is Amicus Senior producer. Our producer is Patrick Fort, Hilary Fry is Slate's Editor in chief, Susan Matthews is Executive editor and Ben Richmond is our Senior Director of Operations. We will be back with another episode of Amicus next week.
- [67:52]
Mark Joseph Stern
I'm Leon Nayfak 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 prove Nixon's involvement in the COVID up. The last story we see is Nixon resigns. It takes a little over a minute in a movie. In real life, it took about two years.
- [68:26]
Justice David Souter
Five men were arrested early Saturday while trying to to install eavesdropping equipment known as the Watergate Incident.
- [68:32]
Mark Joseph Stern
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.