“The Gross Spectacle of a Divided Defense”

Summary

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Podcast Summary: Amicus with Dahlia Lithwick

Episode: “The Gross Spectacle of a Divided Defense”
Date: January 20, 2018
Host: Dahlia Lithwick, Slate
Guests: Jay Schweickart (Cato Institute), Linda Greenhouse (Yale Law School, New York Times)

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Episode Overview

This episode of Amicus explores two major topics in contemporary American law:

1. McCoy v. Louisiana and the Rights of Criminal Defendants – A Supreme Court case questioning whether a defense lawyer may, over the client’s express objection, admit his client’s guilt as a strategic move in a death penalty case.
2. The Role and Shifting Norms of the Office of the Solicitor General (SG) – Veteran Supreme Court journalist Linda Greenhouse discusses the historical and current significance of the SG, especially regarding consistency and reputation amid political shifts.

The episode is characterized by nuanced legal analysis, candid reflections on institutional norms, and philosophical debates about autonomy, strategy, and fairness in the criminal justice system.

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Segment 1: McCoy v. Louisiana – Defendant Autonomy vs. Lawyer Strategy

[00:42–32:46]
Key Guest: Jay Schweickart, Cato Institute

Introduction to the Case

• Background: Robert McCoy, a Louisiana death row inmate, was convicted after his defense attorney told the jury he was guilty, despite McCoy’s adamant insistence on his innocence.
• Core Issue: Can a lawyer override a client’s explicit desire to maintain innocence and instead concede guilt to save them from the death penalty?

The Facts

• [03:20] Jay Schweickart: Outlines that McCoy was charged with murdering three family members in Louisiana in 2008. McCoy insisted he had an alibi (being out of state) and attributed the evidence against him to police corruption.
• McCoy’s public defenders and later retained counsel (Larry English) refused to pursue his defense strategy, considering it implausible.
• Days before trial, English informed McCoy he would admit guilt before the jury as a mitigation tactic; McCoy objected.
• At trial, English repeatedly told the jury McCoy was guilty, even cross-examining him to further the prosecution’s case.
• The jury returned guilty verdicts and sentenced McCoy to death.
  • Notable Quote:

    “Not only is his attorney not defending Mr. McCoy, but he's actually bringing in more evidence for the state's case than the state itself could have introduced.”
    — Jay Schweickart [07:25]

Legal Context and Precedents

• Sixth Amendment: The right to "assistance of counsel" is at stake, but Schweickart stresses this is about defendant autonomy, not attorney competence or effective assistance:
  • Notable Quote:

    “It's a question about who decides... It’s ultimately about what the client's objectives were in this case.”
    — Jay Schweickart [08:52]

• Florida v. Nixon (2004): The Supreme Court held that a lawyer can concede guilt if the client is unresponsive, but specifically did not address whether this can be done over explicit objection.
  • Clarification:

    “A lawyer cannot enter any plea of guilt, whether it's a capital case or not, without your client's express consent.”
    — Jay Schweickart [15:00]

The ‘Gross Spectacle’ and Systemic Concerns

• Schweickart highlights the “gross spectacle of a divided defense,” arguing that open lawyer-client conflict in front of the jury undermines the legitimacy of the criminal justice system.
  • Notable Quote:

    “I think that's an institutional problem going forward for the office.”
    — Linda Greenhouse [00:06]

  • On the adversarial system:

    “The storied history of criminal justice in this country is the jury trial, where you have adversarial testing of evidence... And without that, I think you don't have criminal justice.”
    — Jay Schweickart [19:03]

Oral Arguments at the Supreme Court

• Louisiana’s Solicitor General, Elizabeth Merle, argued for the necessity of allowing attorneys to override clients to avoid "futile charades" in some death penalty cases. Justices, especially Kagan and the Chief Justice, were skeptical:
  • Justice Kagan:

    “You just have conflicting objectives... The question is, when that happens, does the lawyer have to step back and say, you know what? That's not his goal.”
    — [23:35]

• Both liberal and conservative Justices seemed receptive to the idea that overriding a defendant’s goals, even for strategic reasons, was deeply problematic.
  • Schweickart’s Assessment:

    “I feel pretty confident about the ultimate outcome... I think it's a much more open question about how far they go, how they write the opinion.”
    — [24:19]

Philosophical and Practical Tensions

• Justice Breyer: Raised concerns about defendants walking themselves “right into the death chamber” by insisting on unwise defenses.

• Justice Sotomayor: Responded that defendants have the right to “walk themselves, regrettably, into the gas chamber, but they have a right to tell their story.” [27:55]

• Schweickart’s Explanation:

  “Defendants are allowed to make decisions that put themselves at risk... Any other approach is unworthy of a free people.”
  — [28:21]

Expertise vs. Autonomy

• On whether lawyers or clients know best:
  • Schweickart:

    “He knows better on the how question. ... He doesn't know better on what Mr. McCoy's goals and values should be.”
    — [30:42]

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Segment 2: The U.S. Solicitor General – Legal Consistency & Institutional Integrity

[34:12–59:43]
Guest: Linda Greenhouse

The Solicitor General’s Role

• The Solicitor General (SG) represents the federal government before the Supreme Court, overseeing appeals and deciding which cases to pursue.
  • Greenhouse:

    “The solicitor general is a presidential nominee confirmed by the Senate... The SG is the government’s top appellate lawyer.”
    — [34:52]

Institutional Expectations vs. Political Pressures

• The SG’s office is expected to act with measured consistency to preserve credibility with the Supreme Court, even though it operates within the political Justice Department.
• Changing positions (“flipping sides”) on major precedents can damage the office’s reputation—a concern heightened during the Trump administration.
  • Greenhouse:

    “If the court comes to see the SG as simply another political player from the executive branch, I think that's an institutional problem going forward for the office.”
    — [00:06; 37:20]

The SG and the Supreme Court’s Stability

• The Supreme Court relies on the SG as a “straight shooter” for objective case assessments (e.g., identifying meaningful circuit splits).
  • Greenhouse:

    “The court relies on the Solicitor General’s office to be a straight shooter... If that gets eroded, it’s a problem for the SG and it’s a problem for the court.”
    — [39:36]

SG in Action: DACA and the Travel Ban

• Department of Justice (DOJ) controversially requested the Supreme Court to bypass the Ninth Circuit and take up the DACA case directly, a rare move framed as political by Greenhouse:
  • Greenhouse:

    “The administration appears to be thumbing its nose at the Ninth Circuit and thinking it may be able to count on five friends at the Supreme Court. The court wasn’t born last night...”
    — [41:14]

• Discusses how the court has strategically managed high-profile cases like the travel ban, not out of “outrage fatigue,” but to make well-informed decisions.

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Segment 3: First Amendment, Abortion, and Speech – The NIFLA Case Preview

[46:02–53:59]

The NIFLA Case Context

• The Supreme Court was poised to hear National Institute of Family and Life Advocates (NIFLA) v. Becerra, involving California’s law requiring crisis pregnancy centers to provide certain information to clients (medical and abortion-related disclosures).
  • Greenhouse:

    “This is the case at the intersection of abortion law and the First Amendment. That’s a pretty tricky place to be.”
    — [46:32]

• The debates involve compelled speech and the limits of the government’s authority to require the dissemination of information by advocacy groups.

Broader Implications

• Potential for the case to affect not just abortion law, but also the broader landscape of compelled professional speech and religious liberty.

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Segment 4: Journalism, Objectivity, and the Trump Era

[53:59–59:43]

Greenhouse on Legal Journalism

• Discusses her book, Just a Journalist, and the ongoing media struggle to distinguish between objective reporting and calling out falsehoods, especially during the Trump administration.
  • Greenhouse:

    “What's so fascinating about the Trump era is that the mainstream media finally had to wrestle with this ... has something changed in the media's DNA because of this?”
    — [55:19]

Parallels with the Supreme Court’s Own Institutional Struggles

• Links the media’s challenge to the Supreme Court’s and Chief Justice Roberts’ efforts to maintain institutional respect and a non-partisan façade in polarized times.

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Memorable Quotes & Timestamped Highlights

• On Attorney-Client Division:

  “The gross spectacle of a divided defense… is not just a threat to Mr. McCoy's liberty, but really to the legitimacy of the criminal justice system itself.”
  — Jay Schweickart [18:48]

• On Defendant’s Right to Tell Their Story:

  “People can walk themselves into jail, they can walk themselves, regrettably, into the gas chamber, but they have a right to tell their story.”
  — Justice Sotomayor [27:55] (read by Linda Greenhouse)

• On the SG’s Institutional Role:

  “If the court comes to see the SG as simply another political player... that's an institutional problem going forward for the office.”
  — Linda Greenhouse [00:06; 37:20]

• On Legal Strategy vs. Autonomy:

  “He knows better on the how question...[but] he doesn't know better on what Mr. McCoy’s goals and values should be.”
  — Jay Schweickart [30:42]

• On Media Truth-Telling:

  “It's not enough to accurately quote somebody telling a lie... Are you going to be disabled from saying, by the way, dear reader... what he said simply is not true?”
  — Linda Greenhouse [55:19]

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Suggested Listening Timestamps for Key Topics

• Defendant Autonomy and Trial Spectacle: [00:42–21:00]
• Legal Precedents and Oral Argument: [12:44–26:09]
• Philosophical Debate on Autonomy (Breyer vs. Sotomayor): [27:05–30:18]
• Role of the Solicitor General: [34:12–39:36]
• SG’s Reputation and Court Relations: [39:04–43:11]
• Travel Ban and Supreme Court Dynamics: [43:11–46:02]
• NIFLA and First Amendment/Abortion Law: [46:02–53:59]
• Journalism, Objectivity, and Trump Era: [53:59–57:49]

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Conclusion

This episode offers an essential primer on the boundaries of lawyer authority, the philosophical bedrock of the adversarial criminal justice system, and the importance of institutional norms—whether in the courts, the SG’s office, or the press—in maintaining public trust. With in-depth legal storytelling, memorable quotes, and expert analysis, "The Gross Spectacle of a Divided Defense" exemplifies Amicus’s commitment to nuanced, accessible discussions of law and justice in America.

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Transcript

[Linda Greenhouse]

If the court comes to see the SG as simply another political player from the executive branch, I think that's an institutional problem going forward for the office.

[Jay Schweickart]

We call this the gross spectacle of a divided defense, which I think is not just a threat to Mr. McCoy's liberty, but really to the legitimacy of the criminal justice system itself.

[Linda Greenhouse]

Can we even call it assistance of counsel? Is that what it is when a lawyer overrides that person's wishes?

[Dahlia Lithwick]

Hi, and welcome to Amicus Late's podcast about the Supreme Court and the lower courts and the law. This week, the high court will roll into its long break. So things will be dark on Maryland Avenue next week. But the court did hear arguments that this very week in a case involving a Louisiana death row inmate who wants a new trial because, oh, his lawyer told the jury he was guilty. Later on in the show, we are going to talk to veteran Supreme Court correspondent Linda Greenhouse about some of the shifts that have happened in the Solicitor General's office and the Justice Department in the Trump era. And I also felt that I needed to note here that just hours after we wrapped last show about an Ohio voting purge, the president's vote fraud commission was disbanded. You may remember we kept putting that commission in air quotes. It seems amicus air quotes get results. But first, we're going to pop into oral arguments that took place this past Wednesday in a really interesting case about whether a defendant's own lawyer has afforded him effective assistance of counsel when he keeps telling the jury that his client did it, and he's telling the jury his client did it over the repeated insistence by the client that, no, I'm innocent. Joining us to walk us through this case is Jay Schweickart. He's a policy analyst with the Cato Institute's Project on Criminal Justice. His research and advocacy focuses on accountability for prosecutors and police and Sixth Amendment trial rights. And he was co author of an amicus brief filed on behalf of the Capitol defendant In this case, McCoy v. Louisiana. Jay, welcome to the show.

[Jay Schweickart]

Thank you very much for having me.

[Dahlia Lithwick]

And I realized that was a bit of a flip characterization of the facts of the case. But that's the case, right?

[Jay Schweickart]

Yes, I think that's the basic issue here. We had a defendant who insisted that he was innocent, that he was, that he didn't kill his family members, that he was actually out of the state at the time of the murders, and his attorney told the jury that he was guilty over his express objection. So I think it is a very basic but important issue. And so I think that you stated it correctly.

[Dahlia Lithwick]

So will you. The facts of the case are quite horrifying, and I think we could both stipulate that the evidence against Robert McCoy was pretty damning. But will you just talk us through before we dive into the question, the sort of question on the merits, can you talk us through the crime itself?

[Jay Schweickart]

Sure. So Robert McCoy was charged with the murders of three of his family members in 2008. These were the mother, the stepfather, and the son of his estranged wife. This was in Bossier City, Louisiana. And there definitely was. You know, if you look at the state's brief, it looks like there is a lot of circumstantial evidence against Mr. McCoy. There's no doubt about that. I think it's, you know, I think we have to be careful about evaluating how strong the evidence was against him on this record, because, of course, this is an untested record and we have the state's supposition about what sort of the relevant facts were. But this was never tested by a defense attorney who was putting the state to its burden. So I think we have to be careful about how much we read into that. So Mr. McCoy, despite the circumstantial evidence against him, said that he was out of the state at the time of these murders. And he attributed the murders to corrupt police officers and thought that the evidence against him was the result of a police conspiracy. And he proposed, he said, that he had witnesses who would support this alibi that would support him being out of the state at the time of the murders. He was originally appointed public defenders, but he ultimately dismissed them because they refused to support his subpoenas for these witnesses for his alibi defense because they thought this wasn't plausible. He was then qualified to represent himself. Defendants have a constitutional right to self representation, and he was trying to pursue that at one point. And the court said that he was mentally competent to do that. But then his family retained another attorney, Larry English, to represent him. And Larry English, like the public defenders, didn't think that this alibi defense was plausible and didn't support his subpoenas for these witnesses. So there was a bit of conflict between him and Mr. English throughout a lot of their representation. But then the key change here is that 16 days before trial, Mr. English tells Mr. McCoy, for the first time, I am going to tell the jury that you are guilty. There's too much evidence against you. The best that we can do to avoid the death penalty because this was a capital case, the best that we can do is to admit you were responsible for these murders, but try to argue sort of a diminished mental state, hopefully to avoid the death penalty and get life in prison instead. And to be fair, this is not an inherently unreasonable strategy. This is something that attorneys sometimes do in capital cases, because capital cases often do involve overwhelming evidence. But here, Mr. McCoy said, Absolutely not. Do not do that. I am innocent. You are not telling the jury that I killed my family members. And so that's sort of where they left it between the two of them. Then two days before trial, there was a pretrial conference. And here Mr. McCoy tells the judge, and again, this is the first time that he's been before the judge since he's learned what his lawyer is planning to do and tells the judge, I'm not guilty. I don't want him to be my lawyer. He can't tell them I did this. He requests a continuance to get a new lawyer, and the judge denies it. He then asks to represent himself again, which of course, the judge had already said he could do, but the judge denied that as well, and then basically told Mr. English, you're the attorney, you have to proceed as you see fit. And then so at trial, in the opening statement, his lawyer gets up and says, I'm telling you right now, my client killed these people. Mr. McCoy objects and interrupts him and says again to the judge, this is unconstitutional what he's doing. He's selling me out. Mr. McCoy takes the stand at trial himself to present his alibi defense and defend his innocence. And he is cross examined and impeached by Mr. English, by his own attorney, who is trying to, you know, under. Basically trying to get Mr. McCoy, you know, to acknowledge that he was responsible for these murders. And he actually, the cross examination brings in more evidence against McCoy than the state itself had been able to introduce. It brings in evidence about Mr. McCoy's suicide attempts after the. After the murders. It brings in evidence about phone records for a phone that was allegedly in his possession. So not only is his attorney not defending Mr. McCoy, but he's actually bringing in more evidence for the state's case than the state itself could have introduced. And then at closing arguments, again, he tells the jury, again, my client is guilty. He even says, I am relieving you of the burden. I'm relieving the state of its burden. My client is guilty of second degree murder. Unsurprisingly, the jury convicts him and the mitigation strategy fails and they return three unanimous death sentences. So Mr. McCoy is then sentenced to death.

[Dahlia Lithwick]

Now, I want to be Fair here, Jay, and say that an awful lot of capital defense lawyers will tell you, look, this is not an uncommon strategy. Right. I'm trying to get this jury to trust me, and I feel like it's not an unreasonable thing to say, hey, we're gonna just fess up that he did it, because we're building a relationship here. And I think it's strategically not smart to get up and just start claiming innocence. So this is not uncommon as strategies go, to try to sort of foster a bond of truth and veracity with the jury. Right?

[Jay Schweickart]

I think that's exactly right. It is a strategy that is often employed in capital cases. And that's why I think the right framework for this case is not about whether this was effective assistance of counsel. Right. It's not a question of his attorney having just been, you know, made really stupid arguments or botched the defense. If that had been the goal, I think his attorney actually did a reasonably good job. It's a question about defendant autonomy. It's a question about who decides. Because even though this is not just a strategic question, right. This isn't like what evidence to introduce which witnesses to call. It's about what Mr. McCoy's ultimate goal is. Mr. English's goal was to avoid the death penalty at all costs. That wasn't Mr. McCoy's goal. His goal was to vindicate his innocence. His goal was not to suffer the social opprobrium of saying in open court, I killed three of my family members. And that's a value judgment. There's obviously a strategy question there, but it's ultimately about what the client's objectives were in this case. And here I think what happened was Mr. English substituted his own objective, which is a reasonable one, but he substituted that for Mr. McCoy's goal. So that's what I think that was the framework that we were trying to get the court to understand this in, and that's sort of how we framed our amicus brief, was this is about defendant autonomy, not about whether his lawyer did a good job.

[Dahlia Lithwick]

And I think it's important, just for listeners who aren't entirely sure what track we're on, what Jay is saying here is, look, there is this Sixth Amendment right to have the, quote, assistance of counsel for his defense. And what you're saying is, if I understand you correctly, and this is what is in your brief, is that framing it strictly as, was my lawyer drunk? Did he sleep through trial like a standard Strickland? Was he competent? That's not the question here. Of course he was competent. That's what you're saying.

[Jay Schweickart]

That's exactly right. And I think that the state's position here is not that this is always okay. The state's position is that they would like the court to treat this as an ineffective assistance claim. They want the court to look at, was this a reasonable strategy? Did the attorney do a good job? And even if he didn't, was there prejudice to the client? And what we're saying is that's not the right framework for this case. I'm perfectly happy to concede that English did the best job that he could in a difficult circumstance. And to be fair to him, he was in Louisiana, which is in the Fifth Circuit Court of Appeals. And there actually is some law in the Fifth Circuit suggesting that in this situation where there's a conflict between the defendant and the attorney, the attorney should get to make this call. So I can understand why he thought he had to do this. But what we're saying is that the fundamental guarantee of the Sixth Amendment is that the defendant has the right to a personal defense and has the right to make the sort of fundamental decision about whether to admit guilt to a jury.

[Dahlia Lithwick]

So before we get to oral argument, one more thing I'm going to ask you to do. Describe what happens in the court below in the Louisiana Supreme Court, and maybe, maybe also, can you frame this case in terms of there is precedent in this case. We talk about it a lot, Florida v. Nixon, which says, you know, that lawyers do need. Do not need to get express consent. Right. So can you talk about how what Nixon says and then how the court below interpreted that to get to the result that they did before we get to oral argument?

[Jay Schweickart]

Sure. So, and I'll also just lay out sort of a little bit more legal background here. We know that even when a defendant accepts the assistance of counsel, the Supreme Court has already said there are certain fundamental decisions that the defendant gets to make. And these include things like whether to enter a guilty plea, whether to waive the right to a jury trial, whether to testify at trial and what to say and whether to take an appeal. And so in some ways, the question is whether admitting guilt to a jury falls in this category. So now, Florida v. Nixon is a 2004 Supreme Court case that is superficially similar here on the facts, where you had a defendant in a capital case and his attorney thought that there was overwhelming evidence of guilt and thought the best strategy was a mitigation concession strategy to admit responsibility but argue against the death penalty. He consulted with his client on it, but there Nixon neither consented nor objected. He was largely unresponsive and didn't really offer guidance to his attorney either way. And so after consulting with this client, his attorney ultimately at trial, did follow the strategy and did admit guilt, and he was convicted. And when that case went before the Supreme Court, the court said in a unanimous 8. 0 opinion by Justice Ginsburg, that the attorney did not need to get express consent. There are certain decisions where you do need express consent. You have to get expressed consent to enter a guilty plea. You can't do that if your client does, unless your client specifically tells you to. But here, you know, if you consulted with your client and they didn't say one way or another, you know, it's something that you can. It's not inherently problematic. And then that would be evaluated as a basic, ineffective assistance. Was it reasonable or not? And there the court said it was reasonable. The court specifically reserved the question of whether you could do this over the client's expression objection, which is, of course, the case we have here. Mr. McCoy vociferously objected to this strategy at every stage of the proceedings.

[Dahlia Lithwick]

Just to clarify, Jay, a lawyer is precluded from pleading guilty over his client's objection. You're saying this wasn't about the plea, this was just the lawyer asserting over and over again that he did it? Right?

[Jay Schweickart]

That's correct. We already know. It's very clear that a. A lawyer cannot enter any plea of guilt, whether it's a capital case or not. You can never enter a guilty plea without your client's express consent. Now, what the court decided in Florida v. Nixon is that admitting guilt in a jury trial is not like that. For the purpose of having to receive express consent. You don't have to get express consent to admit guilt before a jury, because in that case, there's still a trial. You still have the rest of your trial rights. The government still has to prove guilt beyond a reasonable doubt, whereas a guilty plea is itself a conviction. But what we're saying is that I think Nixon was rightly decided, but it's completely different where you have a lawyer admitting guilt over the defendant's express objection. And so even though I think those are different for the purposes of whether you have to get express consent or not, I think functionally they're similar in that you are denying the defendant the right to defend their own innocence, because what jury is going to fail to convict when the defendant's own advocate is confessing their guilt in front of them? You are overriding a client's decision as opposed to doing the best you can when the client doesn't give you any guidance. But so, nevertheless, at the Louisiana Supreme Court, they took the Nixon decision as meaning that because you don't need the client's express consent, it's just not in this category of fundamental decisions for the defendant. So it's just a basic ineffective assistance question. And the court spent a lot of time looking at the reasonableness of Mr. McCoy's actions. And actually, there was even a concurrence in that case by one of the Louisiana Supreme Court justices, basically saying, I just want to state how great a job Mr. English did. He was in a really tough spot, and this was the best he could do. One of the concerns that the Louisiana Supreme Court had is they seem to think that it would have violated Mr. English's professional responsibility to the court to proceed with a defense that he knew to be false. Right. Or to put on testimony that he thought would be perjury. And I think what that sort of confuses is what the constitutional issue is here. Mr. McCoy is not demanding on appeal. He's not saying he has the right to affirmatively demand that his attorney make particular arguments. He can't direct his attorney to say, I want you to call these witnesses and present this defense. That's not what he's claiming. All he's saying is what the attorney can't do, and the attorney can't affirmatively admit guilt to a charged crime over his objection. So I think that that issue was causing a little bit of confusion at the Louisiana Supreme Court because they were. I think they understood Mr. McCoy to be demanding the right to present this particular alibi defense. But I think now it's very clear that that's not the constitutional right he's demanding.

[Dahlia Lithwick]

So I want to be really clear that the jury is witnessing throughout McCoy's trial this kind of spectacle that is not contemplated in Nixon, where, you know, the lawyer keeps asserting one thing and McCoy keeps, as you said, vociferously saying, I do not agree to this. The jury is witnessing this open conflict between McCoy and his own attorney that is obviously shaping the way they're thinking about this case, too. Right.

[Jay Schweickart]

In our brief, we call this the gross spectacle of a divided defense, which I think is not just a threat to Mr. McCoy's liberty, but really to the legitimacy of the criminal justice system itself. The Anglo Saxon legal heritage is the adversarial system, especially in criminal cases. The storied history of criminal justice in this country is the jury trial, where you have adversarial testing of evidence and a presumption of innocence where the defendant has an advocate committed to them to putting the state to its burden of proof. And without that, I think you don't have criminal justice. And here I'd be curious to see what the jury thought of this. But I have to imagine that a jury seen the defendant's own advocate basically give them up, you know, sort of undermines what we think the jury trial in this country is supposed to be. I think it's one of, that's one of the reasons that the Cato Institute was really interested in getting involved in this case, because we're very concerned about the diminishing jury trial in this country generally. Just as a brief aside, over 95% of criminal cases in this country are not resolved at a jury trial, but through plea bargaining, which I find very concerning, because there you don't have this testing of evidence. You just have guilt that's admitted but never proven. And that's a difficult problem to solve. But I think the least we could do is not discourage trials even more than we already have. And if we sort of enshrined this rule that, well, if the defendant, if the attorney disagrees with the defendant about whether innocence is a good strategy or not, they can basically just offer up the defendant with a concession of guilt, I think that that, you know, not only undermines the defendant's rights, but strikes at what the adversarial system itself is supposed to be.

[Dahlia Lithwick]

Now, the other side says, not entirely unreasonably, you are going to open the floodgates to every single death penalty defendant saying, oh, I disagreed with my lawyer, therefore I get a new trial. I think the oral argument then becomes, in principle, what happened to Mr. McCoy is awful, but where are we going to draw the line? And so let's listen for a minute to Elizabeth Merle. She's Louisiana's Solicitor General, and she's trying to argue that, at least in some cases, lawyers need to be able to override their clients wishes. In a narrow class of death penalty cases, counsel sometimes might be required to override his client on a trial strategy when the strategy that the, that the client wants counsel to pursue is a feudal charade and requires him that to defeat both their objectives of defeating the death penalty. Jay, my question to you is how does her feudal charade language go over at oral argument?

[Jay Schweickart]

So I think there was, there was quite a bit of skepticism about that because again, I think it's. I think it's difficult to establish what is a feudal charade or not. Until you've put the state to its burden. I actually want to focus on another part of what she said, which was the shared objective of avoiding the death penalty. I think that was a point that a lot of the justices pushed back on, because Mr. McCoy's objective wasn't avoiding the death penalty at all costs. His objective was vindicating his innocence and not suffering the social opprobrium of saying, I killed my family. So that was the objective that his attorney had, but it wasn't the objective that Mr. McCoy had. And so I think that framing by the state ignores that. This isn't just about strategy. This is about a value judgment. This is what does Mr. McCoy care about the most? What are the objectives of representation here? And I think that I was very encouraged to hear responses, especially from Justice Kagan. I think she really. She really grabbed onto this point and pushed back on it, and the Chief justice did as well. So that, to me, is kind of the heart of the case. You know, it's not about. This wasn't a question of how. It was a question of what. Right. What was the ultimate goal? And so that, I think, is what caused the most pushback from the justices on the state's position.

[Dahlia Lithwick]

Well, let's play a little bit of Elena Kagan, because I think that she was trying to capture both that these are not shared goals, and also how this puts the lawyer in what she calls a terrible position. So let's play her for a moment.

[Justice Elena Kagan]

You just have conflicting objectives. I mean, I totally understand that this lawyer was in a terrible position because this lawyer wants to defeat the death penalty, and he has a client who says, that's not my goal here. But the question is, when that happens, does the lawyer have to step back and say, you know what? That's not his goal. His goal is to avoid admitting that he killed his family members.

[Dahlia Lithwick]

Jay, so you're. What you're telling me is that when you have, you know, both conservatives and liberals on the court conceding that these are not, in fact, shared goals, the way Louisiana is positing, it seems to me that you have, I think, more than five votes for the proposition that something went horribly wrong here, right?

[Jay Schweickart]

I think that's right. I feel pretty confident about the ultimate outcome. I think that certainly Justices Kagan and Sotomayor and Ginsburg seem to be, I think, pretty strongly on Mr. McCoy's side. I think the Chief justice and Justice Gorsuch were as well, because I think they shared this sense of there was a substitution of goals. Justice Kennedy was actually strangely quiet during this argument. He had, I think, only one question for the state's counsel, which was basically asking if their position would allow an attorney to override a defendant's decision to plead guilty or not, which I think suggests that he was pretty skeptical of their position as well. So I'm confident about the ultimate outcome. I think it's a much more open question about how far they go, how they write the opinion. I think there was certainly a lot of testing of Mr. McCoy's position as well in terms of how to draw the lines. One of the big, I think, open questions is whether the proposed rule here about not admitting guilt would apply to individual elements of a crime as opposed to the entire crime itself. So, for instance, if you had a defendant or if you had an attorney saying, well, this element, I admit, is satisfied, he did commit this act, but he didn't have the right mental state, so you can't find him guilty, I think that's a closer question. It's certainly not the one presented here, because here you had his attorney squarely saying, my client is guilty of second degree murder. So I think there are some line drawing questions, and I'll be curious to see how the court addresses that. But I don't think you have to get into all those details to decide this case.

[Dahlia Lithwick]

And it's probably worth flagging that. Justice Alito was throwing forth reasons that maybe he wasn't fit, that he was trying to find some other way to get out of this hole, right?

[Jay Schweickart]

I think that's right. He had some questions about why did it even get to this point? Shouldn't the proper remedy have been just a continuance or getting him new counsel or letting him represent himself? And I think that's a fair question, and I think most of the time that would probably be sufficient. But this kind of thing actually comes up more often than you might expect. I mean, there are a number of lower court cases that have similar facts where at trial you have a conflict between the defendant and his attorney on whether to admit guilt. So I think it is important that there be a clear rule from the court to address the scenario, even if it's not going to come up all that often.

[Dahlia Lithwick]

Jay, I want to play you one last bit of audio, and I think it is in some ways the emotional high point or low point, I don't know of the argument. And it's Justice Breyer talking about, you know, folks walking themselves right into the death chamber. So let's have a listen, because a.

[Linda Greenhouse]

Large percentage of the People that insist.

[Jay Schweickart]

On representing themselves, particularly in death cases, are going to walk right into the death, the death chamber.

[Linda Greenhouse]

A lot of the people there are just not really capable of managing their own defense.

[Dahlia Lithwick]

And I think I also want to play Sonia Sotomayor responding and saying that's okay. And she says people can walk themselves.

[Linda Greenhouse]

Into jail, they can walk themselves, regrettably, into the gas chamber, but they have a right to tell their story.

[Dahlia Lithwick]

Is this sort of narratively about. On the one hand, Justice Breyer is worried, he's saying, you don't have a right to tell your own story if you're walking yourself right into lethal injection. And correspondingly, Sonia Sotomayor making what feels like a kind of libertarian argument, saying it's still your story. That's. That's what everybody focused on yesterday, right? That tension.

[Jay Schweickart]

I think that's right. And I think it really does. It does go to a kind of deep philosophical question about what we're doing with our criminal justice system and who sort of, who gets to decide these fundamental questions. And I think that, you know, from a, I think sort of libertarian or just sort of general kind of like autonomy perspective, you know, defendants are allowed to make decisions that put themselves at risk. And I think that this is reflected in a lot of areas of our jurisprudence. It's certainly reflected in the self representation cases. We know that defendants have the right to represent themselves, even though, of course, most of the time most defendants are not going to represent themselves as well as attorneys might. There's, I think, a fabulous quote from Justice Scalia in a case Martinez where he is concurring. This is about self representation. He says, our system of laws generally presumes that the criminal defendant, after being fully informed, knows his own best interests and does not need them dictated by the state. Any other approach is unworthy of a free people. And I think that is kind of the sentiment that Justice Sotomayor is expressing is that, yes, you can put yourself at risk, but ultimately we live in a free society and our Constitution is based around individual liberty and autonomy, and you get to make that call. And I think the fact that there are such serious consequences here is all the more reason to trust that the defendant knows what their own objectives are. I think the Chief justice got into this by, you know, he asked very clearly, you know, what if a defendant says, you know, life in prison is worse? You know, I don't want to spend life in prison as an admitted murderer. I'd rather be executed. So, you know, I want to take any chance, however small. I have of exoneration. You know, that's a value judgment. And I think a free society and a liberal criminal justice system, we have to let individuals make their own value judgments.

[Dahlia Lithwick]

And what's the answer, Jay, to the question about, you know, Mr. English has decades of expertise and that he maybe does know better. He knows better how to talk to a jury. The answer is just he knows better. He should express his opinion, and then he needs to back away and let, as Justice Breyer says, let his client march into the death chamber.

[Jay Schweickart]

So I think that he knows better on the how question. Right? He knows the law. He knows how to make legal arguments. He knows how to challenge present or challenge evidence. He knows how to file motions on all these sort of questions of legal tactics and legal procedure. Certainly he does know better. And it's precisely because of that expertise that we guarantee defendants the right to appointed counsel. He doesn't know better on what Mr. McCoy's goals and values should be. I don't think that's a question about law. That's a question about. Those questions may turn on your philosophical or religious beliefs about death and redemption, about your relationships with friends and family, the value you place on your own integrity, inner knowledge of your own culpability. That is the set of issues that determines how to weigh the risk of a capital sentence. And there, I don't think lawyers know better than defendants. I think every individual is going to have a different take on that very difficult question. And the job of lawyer is to consult with your client, advise them on all of the sort of legal procedural questions where you do have expertise, and then ultimately take their answer about what their objectives are. A lot of clients, I mean, I'm an attorney, and I can say a lot of clients are difficult clients. You don't have to be, you know, it is the usual case, not the rare case, where a client's goals or perspective, you know, make the attorney's job more difficult. Too bad. You know, that's. That's your job as a professional, is to. Is to handle that and respond to that appropriately and not to substitute what you think is best for the client.

[Dahlia Lithwick]

Jay Schweickart is a policy analyst with the Cato Institute's Project on Criminal Justice. He filed an amicus brief in this case, McCoy versus Louisiana. And, Jay, I want to thank you for taking us through what is surely the most bracingly ontological podcast of amicus we've ever had. Thanks for being here.

[Jay Schweickart]

Thank you very much, Dolly. It was a pleasure.

[Dahlia Lithwick]

The XX gabfest is a bi weekly podcast about feminism, gender, sexuality, health, politics, Beyonce and other issues of burning interest to women and their friends. It is hosted by Invisibilia co host Hannah Rosen, New York Magaz Magazine's Noreen Malone, and managing producer of Slate podcast June Thomas. Every other Thursday, get a heaping helping of feminist discourse about news and culture in your podcast feed. In the XX Gabfest. Check out the most recent episode, probing The Burning Oprah 2020 and the Feminist Generation Gap in the MeToo Movement. Download and subscribe to the XX Gabfest wherever you find your podcasts. Joining us now is somebody I have wanted to have on this podcast since the first day, and that is Linda Greenhouse. She covered the US Supreme Court for nearly three decades for the New York Times. She won a Pulitzer Prize for it, and she's still a contributing writer at the New York Times. She's also the Joseph Goldstein Lecturer in Law, Senior Research Scholar in Law and Knight Distinguished Journalist and in Residence at Yale Law School. And her book Just a Journalist on the Press, Life and the Spaces between came out last fall. Longest bio ever. Sorry, Linda, welcome to the show.

[Linda Greenhouse]

It's a pleasure to be here, Dalia.

[Dahlia Lithwick]

And there's about a million things I want to ask you, but I think I want to start by asking you to explain something that comes up almost every episode of this podcast but never gets fleshed out. Can you describe the US Solicitor General's office for us? You've watched it over many, many administrations, over many, many different presidents and different ideologies. Can you try for listeners who we talk about it but don't understand what that institution is? Can you tell us what this entity is and how it's different from other, more political branches of government?

[Linda Greenhouse]

Sure. So the Solicitor General's office is located in the Department of Justice. The Solicitor General is a presidential nominee confirmed by the Senate, and he or she is the only federal official who by statute is required to be learned in the law. Even Supreme Court justices. There's nothing in the Constitution or statute that requires them to be lawyers. But the Solicitor General has to be a lawyer, and the sg, as that person is called, is the government's top appellate lawyer. The office, which is really small, about 20 lawyers, most of whom are career civil servants, almost all of whom are represents the government in the Supreme Court and also in the Courts of appeals, in the sense that no government appeal can go forward without the permission of the SG's office they vet. Anytime the government loses, they look and see whether that's a case worthy of appeal to some higher court. And in the case of the DACA Dreamer case that's rattling around, they've decided they want to jump over the appeals court, the ninth Circuit, and go right to the Supreme Court. We'll see how that turns out.

[Dahlia Lithwick]

So I think that the thing that is slightly foreign, we assert it when we talk about the SG's office in the Trump era switching sides, impending cases. You know, we're in a case on one side. Oh, we're on the other side. Or, you know, we've taken one position with respect to voter purges for decades, but we're flipping. And I think a lot of listeners get confused, Linda, about why shouldn't they flip? Why shouldn't the SG's office just take a different posture? It's a different president. And we've had other folks on the show just say it's not done. But I would love for you to explain to people who don't understand why we are so hung up on the appearance that this office is objective, given that it's part of the Justice Department, it has to go where it's told to go. Why this tension and why when we talk about it and we say, you know, John Roberts really hates it when the SG's office flips sides, is this just an illusion or is this something that matters systemically and institutionally to have consistency in this office?

[Linda Greenhouse]

Well, I think not all cases are the same, and it's not accurate to say that it isn't done. It is done to some degree, probably by every administration, because the line between law and politics at this level is a very thin and porous one. I think there's a difference, for instance, between changing sides in a case that simply implicates policy or changing sides in a case where you're suddenly telling the court that a precedent that the office has adhered to and respected for many years is now worthless and should be overturned by the Supreme Court. That's. That's a pending case right now in the labor law area. It's happened quite a lot in the last few months. I guess the Solicitor General always has to make a judgment about the office's reputation before the court. It's the most frequent repeat player. It's the most likely to get its appeal heard by the Supreme Court. The Court will grant a Solicitor General appeal at the rate of about 85%. And for everybody else, it's about one and a half percent. This is a reputation that was many years in the making. It's not that hard to destroy a reputation much more quickly than it takes to build one. If the court comes to see the SG as simply another political player from the executive branch, I think that's an institutional problem going forward for the office.

[Dahlia Lithwick]

And is it an institutional problem? I guess this is underpinning what I am trying to figure out. It's an institutional problem for the court, too, right? Or at least for John Roberts, who prizes these ideas of stability and of credibility. Or will the court just get over it? It seems to me as though, and I know this is the refrain that we all assert norms. Norms. This is just a norm, right? John Roberts will recover from a very politicized SG's office. No.

[Linda Greenhouse]

Well, sure. We're all going to live through this. He comes at it. He was a deputy Solicitor General, so he has a stake in the reputation, the integrity of the office. Also, I think the court relies on the Solicitor General's office to be a straight shooter. When there's a conflict in the lower courts, a conflict in the circuits, that makes a case worthy of taking up to the Supreme Court. Every lawyer asserts there's a conflict in the circus, and that's why you should hear my case. Well, maybe there is and maybe there isn't a real conflict. But if the Solicitor General says there's a conflict, the court wants to be able to rely on that, wants to be able to rely on the statements of facts and statements of where precedent should lead the court. So if that gets eroded, it's a problem for the SG and it's a problem for the court.

[Dahlia Lithwick]

Certainly you mentioned this earlier, but let's circle back and tease it out. Linda, you mentioned that the Justice Department on Tuesday said that it was going to take the very rare step of asking the Supreme Court to just skip a step and overturn a judicial ruling in the DACA case. I think, again, we've got a lower court judgment. It's a pretty dramatic judgment. And this is the Justice Department simply saying, we don't need to go through the 9th Circuit. Let's just leapfrog it up to the High Court. How rare is that?

[Linda Greenhouse]

It's pretty rare. And of course, all the SG can do is ask. And what the court can do is say, thanks, but no thanks. And if listeners have any spare cash sitting around and some handy bookie with whom they like to place a bet, this is not going to happen. The court's not going to accept that invitation. The politics of it are pretty blatant. I mean, the administration has not fared well in the ninth Circuit. That's where the travel Ban, the first and second Muslim travel ban came out of, and the president has denounced the Ninth Circuit. And it happens that this litigation, this DACA litigation, was brought in the federal district court in San Francisco within the Ninth Circuit. And what the administration appears to be doing is thumbing its nose at the Ninth Circuit and thinking that may be able to count on five friends at the Supreme Court. The court wasn't born last night, and I think it doesn't want to be used as a political football in this way. And actually, the order that Judge William Alsop, a very fine judge, issued enjoining the termination of the daca, of the DACA Dreamers program, is very sound. I've read it. I urge people to find it on the Internet. You can download it. It's 49 pages. It's actually a fascinating and brilliant piece of administrative law understanding. And also it's what we call interlocutory. It's not a final judgment, so it's even less worthy of the Supreme Court's attention in this posture than an ordinary case that has gone to final judgment. So, no, the court's not going to take this.

[Dahlia Lithwick]

So that leads me to a question I've been wanting to hear you talk about for months, and that is the Supreme Court initially, when handed the travel ban to deal with in June, surprised, I think, at least some of us, by splitting the baby right, saying, we're gonna let some of the travel ban go forward, we're gonna enjoin some of it, and we're gonna ask you to hustle this case to us quickly in October. And then what we saw this fall seem to be. I don't know if it's travel ban fatigue or. But for the first time, we saw even two liberal judges. I'm sorry, for the first time, we saw two liberal justices flip over and say, yeah, no, I think we can live with some version of the new one. Are the justices getting worn out like the rest of us? Is there a possibility? I think I've called it on this show outrage fatigue, where if the administration just keeps refining, sanding down, fixing slightly and tweaking versions of the travel ban or other things that they did poorly at first, but they do better and better, that the court just at some point says, okay, we're fine. Good, go. And is that how this is going to progress, at least at the high court level?

[Linda Greenhouse]

Well, I mean, the honest answer is I'm not sure. But there's another side of the coin to what the court did when it let travel ban 3 take effect. Which is in that same order. It says something like, we expect that the two lower courts in which this case resides marching toward final judgment will act very promptly and arguments are set, the order said within the next couple weeks, I think it was, and those courts are moving forward. It reminded me of what went on back in the Guantanamo years when the court was very eager to HEAR from the D.C. circuit, from the federal court of appeals in D.C. on what eventually became the Boumedian case. The court wants to fully inform itself before it makes a really major decision. So I actually didn't see outrage fatigue in that. I saw a more strategic judgment that maybe once we see the full dimensions of whatever this Travel Band 3.0 is, and we can't quite tell right now, we'll have a better purchase on it. I thought it was pretty sound, actually.

[Dahlia Lithwick]

And now I want you to tee up a case that I think listeners maybe don't know enough about. And that's the NIFLA case. This is the Crisis Pregnancy center case that the court is going to hear this spring. I think if you asked most people if there was a case that had anything to do with abortion on the docket this year, they'd say nah, or. But actually there is, and I think it's a pretty consequential case. Do you mind sort of teeing up for listeners what is at issue in that case?

[Linda Greenhouse]

Sure. So this is the case at the intersection of abortion law and the First Amendment. That's a pretty tricky place to be. So people may be familiar with the so called Crisis Pregnancy Center CPCs which hold themselves out. You know, if you see a placard in the subway or whatever that says, you know, pregnant need help, call us. Well, if you call us, it's an entity, the purpose of which is in fact to discourage women from having abortions, which means of course they will have babies. So these entities, and there are hundreds and hundreds of them, there are several hundred in the state of California alone. The California legislature passed a law called the fact the acronym is the FACT Act, F A C T FACT that has two parts to it for a crisis pregnancy clinic that actually is not any kind of clinic in the sense that it has no medical personnel on the premises. They have to post a sign that says, by the way, dear would be patient. There were no doctors here and there are no medical services provided for those clinics that actually do have medical personnel who do things like sonograms and pregnancy tests and so on. They have to post a notice that says, dear Patient, you're Here. If by chance you decide you want to terminate this pregnancy, California has a program in place. If you cannot afford to pay for an abortion, California will help you pay for it. Call this number 24. 7. And this has to be either posted or handed out to people as they walk in. The question in both of these parts of this law are, is this compelled speech? Are these entities that don't wish to provide this information to the people who walk in the door being forced to be the carriers, the transmitters of a government message that they don't choose to transmit? And you know, there's pretty robust First Amendment law about compelled speech. You can't have. There's an old, old case from New Hampshire on the slogan on the license plate, you can't be forced to have it on your car if you don't agree with it. And this kind of thing. On the other hand, of course, as a matter of consumer protection, government has the right, or we hope it has the right to make sure that consumers are informed as to what they're getting into. The ninth Circuit upheld this law against a challenge brought by a chain of these crisis pregnancy centers Courts in other parts of the country, including very recently the 4th Circuit in the Southeast has struck down one of these laws, a law from Maryland. There's a pretty powerful debate going on over this, and I don't think I'd like to put a bet on the outcome of this case.

[Dahlia Lithwick]

You have written about, and I know Mark Stern and I at Slate have written about this case as maybe this isn't the worst thing in the the world, because it could certainly, even if the court were to say, you know, the FACT act is unconstitutional, maybe it could have implications for all the mandatory scripts that have false information that physicians have to read in other jurisdictions. So maybe it could accidentally redound to the benefit of, you know, if we're going to say we don't want to be compelled to say things that are false, then doesn't that cut both ways? Does that hold any water for you?

[Linda Greenhouse]

Yes, I think it does. I mean, there are laws that have been upheld. The one that really comes to mind never reached the Supreme Court because the Court was just viewed by the abortion rights community as not a friendly environment, but a law that requires doctors before they actually perform the abortion to kind of read a script to patients that says if you go through with this, you'll be at greater risk for suicide and all kinds of dire consequences, which in numerous peer reviewed studies have been shown to be not true, not true at all. This was challenged on compelled speech, First Amendment grounds, and it was upheld by a federal appeals court. So there is more at stake in this case in terms of the role of the First Amendment in the abortion context.

[Dahlia Lithwick]

Definitely is is this case I class this in almost with the Masterpiece Cake Shop in that it's kind of a speech case, but it's also kind of a religion case. And even though the religious claims have fallen out of this case, there's a way in which these speech claims become some kind of speech plus or speech, I don't know what, but speech that is different from regular speech simply because the speaker has religious objections. Is that a fair characterization, Linda? And I guess the deeper question is when it has this valence that is about faith, that these crisis pregnancy centers cannot be forced to say something because their message is abortion is always bad and you should always carry to term. Does the court reckon with that differently because there is this faith piece of it, even if it's fallen out of the case by the time it formally is argued?

[Linda Greenhouse]

Well, religion is a tough issue for the Court, that is for sure. And you know, we've got the Religious Freedom Restoration act, which only Justice John Paul Stevens and of course he's no longer serving, regarded as itself a violation of the Establishment Clause because it privileges present tense religious claims above all others. But he had no company for that in this crisis pregnancy center case. The petitioners, the centers, brought two questions to the court saying the law both violates our First Amendment speech rights and our First Amendment free exercise of religion rights. And the court granted only on speech. Now, why that was, the court kicked this case around for several weeks before deciding to take it and limiting the grant. Maybe those who take a dim view of the regulation at issue think they have a better chance of counting to five votes when it's pure speech. And the religion claim would just maybe not so clear what the outcome would be, I don't know. But you're quite right. There's a religious valence to almost everything that has to do with abortion. So that's the kind of unspoken overlay on many of these cases.

[Dahlia Lithwick]

Such an interesting time. Linda, I have to ask you before I let you go about your book, because I think one of the things that is so striking about it, and I should say here that I've known you forever and ever, and I used to walk out of oral arguments and people would say to me, dalia, I can't write this. You need to write this because you get to write about opinion. And I always think about the fact that you so, I think, carefully cabined your opinions and your views away from what you wrote, which was, I think, really striving to be objective. And I think your book is wrestling with that theme and how much obligation we have. I always thought it was so amazing that the smartest people about the Supreme Court couldn't write what they really thought in that press room. But I wonder how much the advent. I know you started the book before Trump and then finished it during Trump, but how much the advent of the Trump age has shaped your thinking on this question of he says, she says and false equivalency and the parody that is such a part of the way we report on the court and how much this would have been a really different book if Hillary Clinton had been elected.

[Linda Greenhouse]

Well, the mainstream media's response to the advent of Donald Trump actually came hasn't changed my own views. I've been writing and talking about this, actually for years. That the kind of norm of the phony equivalence and the he said, she said, and there's two sides to every story, even if there's really only one side or there's 25 sides of a complicated story and that kind of thing. I've been complaining about that for a long time. What's so fascinating about the Trump era is that the mainstream media finally had to wrestle with this and decide when it simply wasn't enough to accurately quote somebody telling a lie, because you know the quote's accurate. So nobody can say, you know, I demand a correction. But looking, looking to what the readers are entitled to learn from a news report written by smart, informed journalists, are you going to be disabled from saying, by the way, dear reader, I'm quoting accurately, something that this newsmaker said, but what he said simply is not true. And it's just been the book, the kind of central chapter in the book chronicles through the lens of looking at the New York Times, mostly how the mainstream media came to terms with this. And it ends with a question which is, has something changed in the media's DNA because of this? Or is it pretty much Trump era specific? And when Trump passes from the scene, will we all revert back to our habits?

[Dahlia Lithwick]

And of course, this is the same anxiety that you've written so often about John Roberts trying as chief to maintain institutional respect for the court, to maintain the appearance that it's above politics. And one of the things that is so striking is that this anxiety that you're describing that the New York Times is feeling, that I feel this need to be fair, to not call People, liars, the need to give credence to arguments on both sides, even when they're kind of crazy. But that this is exactly the thing that John Roberts struggles with.

[Linda Greenhouse]

Well, yeah, I mean, he's got a problem on his hands. He's got people on that court and sometimes, certainly including himself, if you think back a few years to Shelby county, the voting rights case, which he wrote, who would like to harness the engine of the Supreme Court to change the status quo in certain ways that map onto the political desires of the party and the presidents who put these individuals there. So this is really the first time in modern history, I wouldn't be so bold as to say ever in U.S. history, where the ideology of the justices on this polarized court reflects the ideology of the president and the party who put each of those justices there. That has not historically been our model. I mean, Earl Warren and William Brennan were Eisenhower appointees and so on. So it puts the court in a dangerous place. And John Roberts is a student of history, and he knows that as well as you and I do. And he's got to decide what he wants to do about it.

[Dahlia Lithwick]

Linda Greenhouse covered the U.S. supreme Court for almost 30 years. She was one of the first, first people in the press room who was nice to me. She won a Pulitzer for her work in 1998.

[Linda Greenhouse]

She's Dahlia. I hope I have many years to be nice to you.

[Dahlia Lithwick]

No, but I remember Linda staggering in there, just having like, looking as though I'd been bonked on the head. And you were kind right from the get go. Linda's still a contributing writer at the New York Times and teaches at Yale Law School. Her amazing book, Just a Journalist on the Life and the Spaces between, came out this fall. Linda, what a joy to have you on Amicus. Thanks for joining, joining us.

[Linda Greenhouse]

My pleasure.

[Dahlia Lithwick]

And that is going to do it for today's episode of Amicus. Our email is, as ever, amicuslate.com and you can find [e-mail] amicus podcast. Please keep your letters and your thoughts and even your complaints and your critiques coming. We love to hear from you. We try really hard to write back. Transcripts for the this show are always available to Slate + members. And what better way to support journalism? Today's show was produced by Sarah Burningham. Steve Lichtai is our executive producer and June Thomas is managing producer of Slate Podcasts. We will be back with you in two short weeks for another episode of Amicus.