← Amicus With Dahlia Lithwick | Law, justice, and the courts
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- [00:00]
Dahlia Lithwick
Hi, everyone. It's me, Dalia, and I am not here today with a new episode of Amicus. We are off this week, but I am here with something nice. This week, I joined what Next? Slate's new fantastic daily podcast to talk about, among other things, Supreme Court Justice Ruth Bader Ginsburg and whether you should freak out about her absence from oral arguments this past week. What Next Is one of my favorite new shows of this year, and I will be a frequent commentator on the program if they'll have me. It's hosted by longed journalist and podcaster Mary Harris. What Next will be coming to you each and every weekday with smart critical analysis from inside Slate's newsroom. Every episode of the show tackles some of the biggest issues and questions facing American politics and culture and society, and there is really nobody better to do this than Mary. If you like what you hear, I do encourage you to subscribe to this podcast in its own feed. It's the very best way to support the show and also to support all the journalism that we do here at Slate. Thank you so much for listening. Enjoy.
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Donald Trump
I'm just. Oh, you are. You called. Get out of here.
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Mary Harris
President Trump seemed to be losing patience with a press conference about one week ago today.
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Donald Trump
Now, I'm just saying, should we keep this going a little? Yes, indeed. Go ahead. Let me know when you get tired.
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Mary Harris
And that's when he revealed this one last trick he has up his sleeve when it comes to the border wall he wants to build.
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Donald Trump
Have you considered using emergency powers to grant yourself authorities to build this wall without congressional approval? And second, on Mexico, you have? Yes, I have. And I can do it if I want.
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Mary Harris
Even the reporter who asked this question seemed a little surprised by the answer.
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Donald Trump
So is that a threat hanging over the Democrats? I never threaten anybody, but I am allowed to do that, yes.
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Mary Harris
Each day since, there has been this debate. Can President Trump actually do this? It's a debate that sometimes the president seems to be having with himself. First, he said he may declare an emergency.
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Donald Trump
I may declare a national emergency.
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Mary Harris
A few days later, I have the.
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Donald Trump
Absolute right to declare a national emergency.
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Mary Harris
And yesterday, just before he visited the.
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Donald Trump
Border, if this doesn't work out, probably I will do it. I would almost say definitely.
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Mary Harris
So which is it?
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Donald Trump
The lawyers have so advised me. I'm not prepared to do that yet, but if I have to, I will. I have no doubt about it. I will.
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Mary Harris
When I heard Trump talking about his lawyers, I realized I wanted to call up a lawyer of my own. Luckily, Slate's got one Dahlia Lithwick, and she's here to puzzle out this idea. Can Trump build a wall by fiat? And what will happen if he tries? Stay with us. This episode is brought to you by Kohler Connect. You've got a smartphone, a smart watch. What about a smart bathroom? Kohler's bringing the modern world into your bathroom. That means voice controlled showers, touchless toilets, and connected lighted mirrors that enable you to personalize your routine like never before. Let Kohler Connect help you create a bathroom routine as unique as you are. Visit kohler.comsmarthome to get started. That's kohler.comk o h l e r.comsmarthome. Dahlia Lithwick covers the courts and law for Slate. She's been living in suspense for a few days now about the president's looming threat of a national emergency.
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Dahlia Lithwick
Tuesday was going to be the big reveal, right? He was going to go on TV and declare a national state of emergency. And he had sort of been teeing that up, and that's what we thought would happen. And that didn't happen.
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Mary Harris
Dalia doesn't really do suspense. She's a lawyer. Lawyers investigate and debate outcomes. They cite things. But the law doesn't really give a clear picture of what's going to happen in the case of a national emergency, at least not the kind President Trump is reportedly preparing to declare. The safe bet is that a declaration would invite a legal challenge. But what next?
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Dahlia Lithwick
People like his very own White House counsel were a little hinky about whether he has the constitutional authority to do what he wants to do. And interestingly, when he started making noises about, I'm going to declare a state of emergency, I'm going to use eminent domain and seize all this, you know, non government, non military land I'm going to like, you know, including bird sanctuaries and Native American tribal lines. I mean, just do it. And a lot of the pushback actually came from conservative commentators. So weirdly, you had like Ben Shapiro and David French and a lot of Andrew Napolitano on Fox News, who is, I think, Trump's real lawyer, all of them saying, either I think this is unconstitutional, flat out, or saying, we squawked when Obama did this, right? When he started doing things by executive fiat. And moreover, we're gonna flip out when President Cory Booker does it, so don't do it. And so I think in a weird way, he's been pinched not just sort of between Rush Limbaugh, you know, and Coulter who are saying do it. And, you know, a lot of thoughtful conservative lawyers who are otherwise on his side about everything, who are saying either this is just flat out unconstitutional or. Or this is a horrible precedent. So I think that this is not an easy move for him, and that's why he's been doing this. I'm gonna do it. I'm gonna do it. Here I go. I'm gonna. Oh, I didn't do it. But, you know, there's. It's not an emergency, it's a crisis. But I think he's inching his way to it through a thicket of very serious legal guidance, telling him this is a mistake.
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Mary Harris
Can you just remind us what a national emergency would actually allow him to do?
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Dahlia Lithwick
First of all, it's important to say there's no formal legal meaning for an emergency declaration. We don't know what that means exactly. We do know that the President has the power to issue an emergency declaration. And we actually know that the case that we think about, when we think about this is the steel seizures case from 1952. Right. And what happened there, that was the case that went. So when, like for instance, Mary, when Adam Schiff just says it's just flat out unconstitutional, he's citing Youngstown sheet and tube, which was this 1952 case. This is when President Truman tries to seize the steel mills during the Korean War. There's a labor dispute, and he says, I'm going to keep them open because we need this for war powers. And in a hugely powerful rebuke, the US Supreme Court says, no, we are not going to accept your rationale for this kind of unilateral action. And then there becomes an incredibly important test for when the President has that authority. All that happens before 1976, when Congress passes the National Emergencies act. And that was supposed to be a post Watergate corrective that was going to give the President authority to declare emergencies. But he also had to kind of check in with Congress and get Congress. He had to explicitly say what the emergency was, say what he was going to do, and then get repeated permission from the Congress. So this was meant to be a check. The effect was completely the opposite. It just institutionalized vast presidential authority. We've now got cause Congress just rubber stamps. Congress doesn't even look at this Congress.
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Mary Harris
There's like a guy in the basement who's just like, I'm the national emergency guy.
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Dahlia Lithwick
In the 42 years since this has passed, only once has we seen Congress exercise any kind of authority over this. And literally we're now in a situation where they're. I just Want to get the number because it's so funny. So CNN is reporting that there are actually 31 existing declared emergencies in the country that nobody is exercising oversight on. And we're all like, eh, okay, this would be the 32nd, which is just a sort of long way of saying that to the extent that we have this statute that's supposed to be giving Congress the power to check the President, they're all like, on snooze, I hear.
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Mary Harris
This, and I think back to the opioid crisis, where he was like, I'm going to declare a national emergency. And then it became a debate about what kind of emergency it was, and then it wasn't declared and just seems. It seems like we haven't defined it well or put any checks and balances in.
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Dahlia Lithwick
Well, I think that that's the short answer to why on Tuesday, what Trump declared was a crisis. And hilariously, it was largely a humanitarian crisis in this construction. So a crisis, I guess, is like the same stop on the road before you get to an emergency. But I think he's trying to sell that there is this massive emergency going on. And I should just say, for purposes of what a court would have to do to determine, because presumably the minute this happens, somebody seeks an injunction and this is tied up in litigation. One of the things the court's gonna have to do is say, is this a legit emergency? And what do you do with facts that illegal immigration is down, that drugs coming across the border at, you know, checkpoints, at these checkpoints are not the way illegal drugs are being interdicted? So I think there is this whole over the question of is this an emergency? And really, if it's an emergency and a plan is gonna be like 10 years to build the wall, like, is this that kind of TikTok emergency?
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Mary Harris
And the DOJ could get in there too. Right. Isn't their job to make sure that this is like.
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Dahlia Lithwick
Right, yeah. Well, the DOJ has been in the position of defending an awful lot of these kind of Helter Skelter things that the President does. So the president, remember immediately when he announced the travel ban again, without really lawyering up what that meant, and Sally Yates being fired because she said, I can't enforce this. Donald Trump tends to do things like, I think I'm gonna have a ban on trans soldiers in the military and then leave the DOJ to fix it. And in fact, one of the reasons he keeps losing in the courts is because, you know, including the family separation policy, including the sanctuary city policy, is because he doesn't have this legal architecture underneath it to support it. And the DOJ then, is kind of rocked back on its heels. It has to defend something that is not always plausible. And there's this other super boring but super interesting kind of piece of this, which is that agencies have protocols that they have to follow when they effectuate these huge, huge changes. And one of the things he keeps doing is sort of saying, we don't even need to do any of that. And that actually ends up tangling him up in the cords.
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Mary Harris
Okay, one more thing. You cover the Supreme Court for Slate, and this week, something really surprising happened. Can you talk about it a little bit?
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Dahlia Lithwick
I can, with the huge caveat that I don't have insider information. Like, this is the thing. Like, you know, my dad's calling me. What do you know? And I'm like, I don't have, like, a red bat phone to, like, Ruth Bader Ginsburg. So I can just tell you what I'm hearing, which is, yes, it's extraordinary. For the first time in over 25 years, Ruth Bader Ginsburg, who, by the way, like, has survived colon cancer and pancreatic cancer, is, you know, missing oral arguments this week.
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Mary Harris
And she didn't miss oral arguments after her husband died.
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Dahlia Lithwick
She was there. I was there the next day. She was on the bench reading, you know, a dissent. So she does not kid around. And she didn't miss when she was treated for other cancers. And so, you know, the world flipped out because she missed Monday and Tuesday and Wednesday arguments this week. So what I can tell you is what the surgeons are saying, which is, you know, she just had. On December 25, she had half of her left lung removed. This was the result of, you remember, they found some malignant nodes. They found the nodes because this is like the house that Jack failed because she broke. She cracked ribs. And only because they were X raying the ribs did they find the nodes. So it's a huge surgery. Now she's home. She's working from home. She's listening to, you know, she's got the audio. She's reading transcripts. She's participating. Yeah.
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Mary Harris
What does working from home mean as a Supreme Court justice? Are her clerks there? Like, what's going on?
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Dahlia Lithwick
The Chief justice, when Chief justice, then Chief Justice Rehnquist was very, very sick with thyroid cancer. And he just worked from his hospital bed, worked from home. So what she's doing is drafting opinions and reading draft opinions that other people have written and doing all the things that justices do maybe to help put it in perspective. You know, they hear 12 cases a month for six days. So this is not a huge part of the job. It's the public facing part of the job. It's the part where we get to see them. And so I think we get this notion that this is the totality of. But 95% of the job, it's like an iceberg is the stuff that they would never put in like the TV show. Cause it's so boring. It's just them reading and writing and that's. She's perfectly capable of doing that from home. Now that said, I guess we should add she's 85. Yeah, I think I read somewhere she's the fourth oldest, like Supreme Court, something like that.
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Mary Harris
I mean Kennedy retired at 90.
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Dahlia Lithwick
He was no Stevens. John Paul Stevens. Yeah.
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Mary Harris
Witness retired at 90.
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Dahlia Lithwick
But you know, Kennedy retired at 80, so it's not 81. I think it's not a trip to be 85 and a three time cancer survivor. And you know, I think that we get very hagiographic about like her workout tapes. But she, you know.
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Mary Harris
Yeah, I mean I guess we. She's become this feminist icon and I wonder if it just sort of prevents us from seeing the 85 year old woman that she is in some ways. A friend of mine who's a lawyer posted and I thought this was thoughtful. You know, there's this liberal debate of like, well should she have retired while Obama was president? And she was like, you know, you gotta be careful with that because part of feminism is letting people do what they want. And we've let these guys work until they're 90.
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Dahlia Lithwick
Well, that's what she said. One of the things she says in response to that is like weird. Nobody was demanding that John Paul Stevens retire. Nobody was demanding that Stephen Breyer retire. So I think she does see this valence of sexism around it that you know, there was this laser focus on why she wasn't stepping down. And I think that offends her. For what it's worth. Anecdotally a lot of people have said that she watched Sandra Day o' Connor get forced off the court. That's itself an amazing feminist story that doesn't get told right where Chief Justice Rehnquist is incredibly sick and oconnors husband is incredibly sick. So much so that she says I'm going to have to next year. She says to the Chief Justice, I'm going to step down so that I can care for my husband. So stop and sit with the fact that like male justices don't retire to care for their ailing spouses. And then this is the kind of weird feminist bit. Chief Justice William Rehnquist says to her, actually, no, I'm gonna retire next year, so you should go now. And he says to her, because you can't have two in the same summer. There's just a court tradition. Two confirmation hearings is too much of a jolt to the public system. So he says to her, essentially, don't do it next year. I'm gonna do it next year. You do it now. She, by the way, I should just add, is at the height of her powers. At this moment, she's the most important woman in the country. She's the 5, 4 vote, the swing vote. She was Kennedy before Kennedy was Kennedy. So he says, step. She steps down, and he promptly dies shortly after. So not only do we end up having two confirmation hearings. Boom, boom in a row, we have John Roberts and Alito, but then she ends up having stepped down before she was ready. And the really tragic coda, if you're counting sort of feminist indignities here, is that within a very, very short time, her husband is institutionalized. He doesn't recognize her anymore. Ginsburg has said she was forced off before she was ready, and she could have been on the court for five more years or seven more years or whatever. And, you know, we don't know what the world would have looked like. And I think that story is playing in the back of Ginsburg's head when she's like, no man is gonna tell me it's my time. Because I saw that happen to a person who really, I think, in many ways was her sister at the Supreme Court. It's a long, long, long story.
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Mary Harris
I like that story. I know that story.
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Dahlia Lithwick
Yeah, yeah, yeah.
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Mary Harris
Dahlia Lithwick, thank you so much for chatting with me today.
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Dahlia Lithwick
Mary, thank you, as always, for having me today.
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Donald Trump
Hello, everyone. It's me. The greatest president in the history of presidents. Those people are Trump at it again. They're not satisfied with just being a podcast and being highly rated. No. They're taking their show on the road. I'm advising you, do not go see Trump cast live in, of all places, Los Angeles, a bastion of liberalism. Terrible, terrible state. California and Los Angeles. This is the worst. Don't buy tickets@slate.com live. Don't do it.
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Mary Harris
Before we go, one last rabbit hole. I jumped down with Slate reporter Ruth Graham.
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Ruth Graham
I think I heard about it the way everyone did, which is this strange, like, very positive, warm and fuzzy statement they posted on Twitter the It Ruth.
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Mary Harris
Is talking about here. It's Jeff Bezos divorce from his wife, MacKenzie. Their statement earlier this week ended like this. Though the labels might be different. We remain a family and we remain cherished friends.
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Ruth Graham
It almost, I wrote it almost like, feels like an anniversary announcement because it's all about, like, their shared life and their love and their continuing love and all of this. But it was. It was a divorce announcement after 25 years of marriage.
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Mary Harris
I mean, it's like I'm thinking of Gwyneth Paltrow. What did she call it when she announced her divorce?
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Ruth Graham
Yeah, Conscious uncoupling. It felt very much like that.
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Mary Harris
Around the newsroom. This is a story we just can't stop talking about. Maybe it's because Bezos is the world's richest person. Maybe it's because Amazon is so deeply embedded in our lives. Maybe it's just because we love the crazy details about how Bezos and his wife met.
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Ruth Graham
They've been married since before he started Amazon, and he's described it as sort of like that. He approached this as like a professional dater back then. So when he was ready to get. To find someone to get serious, this really systematic approach, he called it the women flow, which is a play on this term deal flow, which I guess is a Wall street term for managing the offers that come your way. You won't even waste your time on anything less than $5 million or whatever. It's a way of filtering out the deals that you want to even consider.
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Mary Harris
The funny thing is, I can't tell if it's gross or endearing.
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Ruth Graham
I think it's endearing when it's told as an endearing story. And then when you're looking back on it, like, after something like this falls apart, and after now, you know, the National Enquirer is reporting that he has moved on with this, like, glamazon wife of his best friend. And then that makes it a little, like, weird and gross and clinical to look back at his, like, selection of his perfect mate in his 20s, who he's now moved on from.
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Mary Harris
Maybe we can't stop talking about this story because in a way, it's reassuring that there are no perfect mates, no matter who you are. And that's the show. Tell us what you think by leaving a rating and a review on Apple Podcasts. Your review is how people find us, and we want more people to find us. So help us out. You can find us on Twitter, laypodcasts, or you can find me Mary's desk. And if you're taking a break from Twitter. I respect that, but just keep listening. What Next is hosted by me, Mary Harris, and produced by Mary Wilson and Jason De Leon, with loads of help from Daniel Hewitt. Talk to you tomorrow.