The Trump Court and the Roberts Court

Summary

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Podcast Summary: Amicus With Dahlia Lithwick | Law, justice, and the courts

Episode: The Trump Court and the Roberts Court
Date: October 9, 2021
Host: Dahlia Lithwick
Guest: Professor Lee Epstein (Washington University in St. Louis)

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Main Theme / Purpose

This episode explores the evolving legitimacy, partisanship, and public perception of the U.S. Supreme Court as it begins a new term with major cases on abortion and gun rights. Dahlia Lithwick invites Professor Lee Epstein, an expert in empirical judicial behavior, to shed light on how data and political science challenge traditional narratives about the Court's role, with an eye toward recent “shadow docket” decisions, internal court politics, and the justices’ attempts to manage or reclaim legitimacy.

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Key Discussion Points and Insights

1. Return to In-Person Arguments & The Shadow of Politics

• The Supreme Court opened its term in-person for the first time since winter 2020 (00:05).
• Justices’ approval ratings are low, and big cases on abortion and guns are looming (01:09).
• Justice Alito and Justice Sotomayor recently made speeches reflecting very different public concerns (02:11).
• The "shadow docket"—the Court’s emergency orders and summary decisions—is at the center of legitimacy debates.
  • Justice Alito: "The catchy and sinister term shadow docket has been used to portray the Court as having been captured by a dangerous cabal..." (01:32)

2. Is the "Trump Court" Different from the "Roberts Court"?

• The "Trump Court" is defined by the decisive three appointments under Trump, which shifted the Court’s center rightward (06:17).
  • Prof. Epstein: “Obama's president for eight years, he gets two appointments. Trump is president for four years, he gets three appointments and he moves the center of the court toward Brett Kavanaugh, away from the chief justice. So, yeah, I told you so.” (06:24)
• However, last term's data don’t reflect a wildly extreme or socially conservative court. Statistically, the Roberts Court still exhibits high unanimity (nearly 50% in nine-justice decisions vs a 33% historical baseline) and fewer 6-3 partisan splits than expected (approx. 15% of argued cases) (08:34).

3. Reconciling Data and Public Perception

• Lithwick challenges the idea that all cases are equal, pointing out that not all decisions have the same impact (10:01).
  • “It weights the swearing cheerleader as though that’s the same as invalidating Section 2 of the Voting Rights Act. That’s gotta be wrong.” (10:08)
  • Epstein agrees this is an empirical challenge but counters that even among high-profile, "front-page" cases, the liberal wing won some big ones (11:50).
  • Key wins for liberals: Obamacare, “cheerleader” free speech, NCAA student athlete case.

4. Emergency Orders & “Shadow Docket”

• Prof. Epstein identifies a two-court dynamic: a standard-issue, moderately conservative Roberts Court and a more aggressive “Trump Court,” especially visible in abortion, guns, and COVID-religion cases (08:03).
• Recent abortion orders (e.g., Texas’s SB8 law) and sudden emergency orders have accelerated perceptions of partisanship (“self-own”). (14:16)

5. Cycles of Legitimacy and “Break the Glass” Moments

• Lithwick describes a recurring cycle:
  1. The Court asserts it's above politics
  2. The press and public buy in
  3. The Court acts politically (e.g., Bush v. Gore)
  4. The public and press are shocked; political scientists say “I told you so” (14:16)
• When is it a true crisis? Epstein: Study trends in partisan splits, unanimity, and outcomes—and watch especially for voting rights and elections cases (16:37, 31:39).
  • “The commentary on the court with regard to elections and voting rights is probably the scariest… that may be time to panic.” (31:39)

6. The Justices’ Public Offensive and Reaction to Criticism

• Justices are increasingly vocal—especially when their legitimacy is questioned (24:38).
  • Justice Alito’s Notre Dame speech (targeting Adam Serwer’s Atlantic article) is highlighted.
  • Prof. Epstein: “It’s hilarious… they have lived through these confirmation proceedings… everybody knows that, you know, once they’re on the court… Elena Kagan is a very different person than Amy Coney Barrett. Right? We all know that.” (24:38)
• Contrasting styles: Some justices (Roberts, Kagan) say little; others (Barrett, Alito, Thomas) are vocal about nonpartisanship.
• The wisdom of attacking the press is questioned: “Why turn on the press? It seems like such an odd strategy.” (30:06)

7. Measuring Judicial Behavior (Limits of Data vs. Doctrine)

• Epstein underscores that while data can map outcomes, it's much harder to empirically capture shifts in doctrine—i.e., footnotes or test changes in otherwise “consensus” cases (11:50, 34:43).
• She advocates a combined approach: “The idea of building in nuance in the decisions, as you do all the time, Dalia, I think that bridges the gap very nicely, combining the data with what you’re reading in the opinions. I applaud that.” (36:33)

8. Faith, Identity, and Confirmation Hearings

• Epstein and Lithwick unpack challenges in evaluating how justices’ faith and identity predict their decisions—especially as these topics are taboo in confirmation hearings but evident in decisions about religion (37:36).
  • “Religious identity, the degree of devoutness, religiosity, matters—it affects the justices in particular kinds of cases.” (38:17)

9. Roe v Wade, Abortion, and the Motive Force of Controversy

• Both agree that abortion is the engine driving much of the crisis of legitimacy, both substantively (in SB8, Dobbs) and symbolically—for insiders, observers, and the public (40:32).
  • Dahlia: “If you factored out abortion… everything would look different and also everything would sound different.” (40:34)

10. Pullback, Docket Control, and Path Forward

• Epstein suggests the Justices’ best move may be to “pull back”: stop giving speeches, choose fewer high-profile, divisive cases, return to quieter institutional norms (41:45, 43:12).
  • “They can do a number of things. Docket control is very important. They’ve taken a couple of high profile cases this term. How many more do you really want to take?” (43:13)
  • Focus communication on how the court works, not on attacking press or defending nonpartisanship.

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Notable Quotes & Memorable Moments

• On the legitimacy self-inflicted wound:

  “The Justice's own decisions to do kind of partisan things in partisan ways on an emergency docket, shadow docket, I’ll say it was an epic self-own.” – Dahlia Lithwick (02:11)

• On the ‘two courts’ dynamic:

  "There’s this kind of, I’ll call it Trump court... but then you start to look at the data... you see above average unanimity. You don’t see the 6-3 decisions that we thought.” – Professor Lee Epstein (08:34)

• On cycles of shock and political science:

  “All the political scientists are just standing around smoking and drinking and murmuring I told you so. And they're holding the receipts.” – Dalia Lithwick (05:40)

• On the partisan split crisis:

  “If this persists, this polarization... public legitimacy is going to suffer. That's happening now, right?” – Dalia Lithwick (30:42)

• When to panic:

  “Well, that's time to panic right there....The commentary on the court with regard to elections and voting rights is probably the scariest of the commentary.” – Professor Lee Epstein (31:39)

• On the Justices’ public relations strategy:

  “Why turn on the press? It seems like such an odd strategy.” – Professor Lee Epstein (30:06)

• On the press and doctrinal nuance:

  “The idea of building in nuance in the decisions, as you do all the time, Dalia, I think that bridges the gap very nicely, combining the data with what you're reading in the opinions. I applaud that.” – Professor Lee Epstein (36:33)

• Advice for the Justices:

  “They can do it. This kind of emergency app thing is just way overblown...I think they do have to lay a little bit low. Exactly what you're saying.” – Professor Lee Epstein (43:12)

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Timestamps for Important Segments

• Opening of the Term & “Shadow Docket” Critique: (00:05 – 02:11)
• Intro of Professor Lee Epstein & Data vs. Perception: (05:40 – 08:34)
• Unanimity vs. High-Profile Partisan Cases: (08:34 – 11:50)
• Dissecting Public Reaction and Emergency Orders: (14:16 – 18:14)
• Cycles of Court Legitimacy: (14:16 – 16:37)
• What Would a Crisis Look Like?: (16:37 – 19:29)
• Justices’ Public Communications and Legitimacy: (24:38 – 30:42)
• Empirical Limits: Doctrine and Identity: (34:43 – 39:49)
• Abortion as the Flashpoint: (40:32–41:45)
• Pullback Strategy and Predicting the Court’s Future: (41:45–45:07)

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Tone and Takeaway

The episode balances wry skepticism and empirical rigor, reflecting both Lithwick’s polemical, press-oriented angle and Epstein’s data-driven objectivity. The core takeaway is that the Court’s reputation crisis is real but perhaps less apocalyptic (based on last term’s data) than news cycles suggest; much hinges on high-profile cases (especially abortion and voting rights). The Court’s future legitimacy may depend on restraining partisan visibility, increased transparency (“show your work”), and possible retreat from incendiary public posturing.

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Transcript

[Dalia Lithwick]

Hi, and welcome back to Amicus. This is Slate's I'm Gonna say It Gracie Award winning thank you legal podcast about the courts and the law. This past week brought us the opening of the term with the first Monday in October at the Supreme Court justices hearing in person argument for the first time since the winter of 2020. Brett Kavanaugh calling in because he tested positive for Covid. The court heard arguments in several cases, including one in which some of them appeared to have forgotten about the existence of Guantanamo Bay.

[Professor Lee Epstein]

Why is he there?

[Unidentified Legal Commentator]

That's a question to put to the government. We don't know the answer.

[Professor Lee Epstein]

I mean, have you filed a habeas or something? Get him out.

[Unidentified Legal Commentator]

There's been a habeas proceeding pending in D.C. for the last 14 years. Well, how? There's been no action.

[Professor Lee Epstein]

They don't decide.

[Unidentified Legal Commentator]

I'm sorry.

[Professor Lee Epstein]

I mean, you just let it sit there. All right, I guess this is not relevant, but I'm just curious.

[Unidentified Legal Commentator]

Personally, I'm not handling that proceeding, but. No, my understanding is that we've done everything we could to move it forward, but it simply has not moved forward.

[Dalia Lithwick]

And the term previews and curtain raisers this past week skewed quite heavily into the realm of politics with bracing reminders that the justices approval ratings are in the tank and the shadow of big, huge abortion and gun rights cases looming over the term. And justice is giving very, very polemical, angry speeches.

[Justice Samuel Alito (quoted)]

My point is that the media and political talk about the shadow docket is not serious criticism. It is related to a deep problem that some of my colleagues have addressed recently. The catchy and sinister term shadow docket has been used to portray the Court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways. And this portrayal feeds unprecedented efforts to intimidate the Court or damage it as an independent institution.

[Dalia Lithwick]

Since our last episode, Justices Samuel Alito and Sonia Sotomayor have taken to the speaking circuit to talk about what's to come. Justice Alito to fume and rage against the haters, and Justice Sotomayor to warn of bumpy days ahead. Later on in the show, we're going to be joined by Mark Joseph Stern for our Slate plus segment to talk about that Alito speech to update you on SB8, the Texas Abortion law, and maybe possibly potential beginnings of accountability for the how to coup better election subversion lawyers. But first, as somebody who's been covering the Court for quite some time, I confess that the last few weeks have been a little destabilizing I think that if the Court had been quiet over the summer, refrained from their shadow docket reindeer games and stopped giving speeches delivered at the feet of Mitch McConnell, I truly believe they would have sailed into this most important term of the century with 57% approval ratings and a press corps that was completely willing to agree that everything was business as usual. The Justice's own decisions to do kind of partisan things in partisan ways on an emergency docket, shadow docket, I'll say it was an epic self own. And rather than just let that be, over half the court seemed to have looked around in recent weeks and thought, hey, you know what's going to win back public approval? Me doing even more crazy partisan stuff. I don't know. I've long argued that the Court loves to tell this story of itself as oracles and umpires, and that the Supreme Court press corps sometimes prefers that narrative as well. But a whole cadre of researchers and political scientists have been arguing for decades that the Court is a partisan political institution and it should be measured by outcomes alone. For a century, these political scientists have been telling us that judicial behavior is better predicted by political modeling than by trying to triangulate against complicated doctrinal processes. So while most of the balls and strikes court watchers seem to have emerged into this reality in the light of the 2021 term, blinking at the Court's suddenly cratering legitimacy, belatedly asking themselves, is this a crisis? All the political scientists are just standing around smoking and drinking and murmuring I told you so. And they're holding the receipts. Standing by today with a metaphorical cigarette and martini in hand is Professor Lee Epstein. Lee has been looking at the courts through the lens of data and political science for decades. She is the Ethan Ah Shepley Distinguished University professor at Washington University in St Louis, focusing on law and legal institutions, especially the behavior of judges. She's also co director of the center for Empirical Research in the Law and principal investigator of the U.S. supreme Court database. A recipient of 12 grants from the National Science Foundation, Lee has authored or co authored more than 100 articles and essays and 18 books, including the Behavior of Federal Judges with William M. Landis and Richard Posner and An Introduction to Empirical Legal Research with Andrew D. Martin. She's currently co editing the Oxford Handbook on Judicial Behavior. And this past week, as I read the term previews and they were all laced with these really political claims about poll numbers and wobbling public legitimacy and this judicial charm offensive gone horribly wrong, all I could think to myself was what would Lee Epstein think? This is shocking to SCOTUS watchers, but it's the water Lee swims in politics, judicial behavior data all the way down. So, Lee, welcome to the I told you so Dalia world tour. It is lovely to have you on the podcast.

[Professor Lee Epstein]

Thanks for inviting me. It's a pleasure to be here. Part of the story is, I think and I told you so story. It's hard to believe that people didn't see this coming. Right. Obama's president for eight years, he gets two appointments. Trump is president for four years, he gets three appointments and he moves the center of the court toward Brett Kavanaugh, away from the chief justice. So, yeah, I told you so. There's a lot of predictability here. And abortion and guns, not at all surprising. But Dalia, there's another side to this story beside the kind of Trump court side, and that's from the data side. If you look at the data from last term, this doesn't look like a really socially, culturally extreme court. And that's what's a little perplexing about last term. Now, whether this is going to hold next term, I don't know. But right now there's a side to this court that looks kind of standard issue Robert's Court.

[Dalia Lithwick]

This is interesting. So you're telling me that while we were sort of asleep at the switch for a long time, as the court was drifting rightward, we're actually now getting the data wrong on the other side, that we're over correcting or overreading a couple of shadow docket opinions from the summer and these dopey speeches. But that in fact, if you look at the data from last term, it's not as bad as we now think it is. But it's worse than we thought it was when we were asleep.

[Professor Lee Epstein]

100%. Right. It's almost like there's two courts operating. Right. There's this kind of, I'll call it Trump court aided and abetted by Alito and Thomas. And you see that in the abortion case this summer. You saw it in the voting rights case, although, as you know, the voting rights is kind of hallmark Robert's Court well before the Trump justices got there. Right. You see it in the fact that they took a gun case this term.

[Dalia Lithwick]

Term.

[Professor Lee Epstein]

And so on. And the COVID case, the COVID religious case that flipped when Barrett got on the court. But then you start to look at the data. So the data show a court that was almost 50% unanimous in nine person decisions. I think 46, 47%. Really high. The average for the period going back to 1937 is like 33%. So you see above average unanimity. You don't see the six to three decisions that we thought. We thought there'd be a lot of six, three decisions along partisan lines. If you look at six to three decisions, I think they only made up about 15% of argued cases. Six, three partisan split cases. And then look at the cases that made the front page of the New York Times. Yes, there's a voting rights issue. And even if you take into account the emergency at cases, it doesn't look like the Democrats on the court have lost 90%. So there's two stories going on here. A standard kind of moderate conservative, institutionalist Roberts court and kind of a Trump court.

[Dalia Lithwick]

So cynics like me who read the raft of end of term pieces that made the points you're making, that looked at the data and said, look, this is a 3, 3, 3, court, right? We have John Roberts and Amy Coney Barrett and Kavanaugh in the middle. And there was an immense amount of unanimity and there was very unpredictable splits. And folks like me said the problem with the set you're looking at is it weights every case equally, right? It weights the swearing cheerleader as though that's the same as invalidating Section 2 of the Voting Rights Act. That's gotta be wrong. And that's what the problem is with those crunches of the 57 whatever merits cases is it doesn't wait for what is consequential. But I think it also doesn't take in to account those shadow docket cases. And so I think there was a sense that we've got the set wrong and that's why those conclusions were wrong. And I guess the last thing I would say, and fight me on this, because I think it's really hard to prove this empirically. But even some of those 817 to 2 cases, I'm thinking of Fulton, the foster care case, it may look like it's not doing something consequential, but it's actually changing a test, and it's changing a test in the footnotes. So help me look at this not as a set of N merits cases that we slice and dice, but is there a way in which when the court looks like it's doing something unanimous, but in fact, the land moved, the doctrine changed, and we certainly saw that in that Covid case you're describing from April. How do we account for all that?

[Professor Lee Epstein]

Okay, first, let me push back on the first point. The first point is that if you only look at the important salient cases from last term, a very different picture emerges than the standard Roberts court picture. I'm going to push back on that. There were, I think, 11 cases that made the front page of the New York Times. So that's one way to think this is an important case. Right. We could talk about definitions, but let's just do that. And if you look at those cases, there were, okay, so we've got the voting rights place. That's a clear loss for the Democrat side of the court. But then let's go down the line. We've got all the, and I'm talking not just, I should say not just the 11 cases made the front page of the New York Times. I'm counting the emergency app cases. So those are in there. Go down the line. Look at the 2020 election challenges. Right? Look at the Trump tax records, Obamacare, the cheerleader case. So we could go down these 11 cases, but this was not a total blowout for the Democratic side, which to me was a little unexpected. Think about the counterfactual where they strike down Obamacare. They didn't do that. And the cheerleader case. Right. A win for free speech, ncaa, the student athlete case. All right, so I'm going to push back a little bit on that point. If you just look at salient cases, the term looks different. Actually, it doesn't look that much different in trying to get at the doctrinal aspects. That's, as you know, very, very hard empirically. And I think Fulton is the best example there of, yeah, the Democrats were on the winning side of that case, but what did they actually win in that case? They got a little save on the doctrine, but the doctrine did move. And that's hard for me to do with data. I think that's hard for anyone to do with data. So I take your point. I take the second point. The first point. I'm going to push back.

[Dalia Lithwick]

So if we meet in the middle and we agree, and I think your framing, by the way, is exactly right, that there are two different stories being told right now, and one is a very overheated the court is a bunch of feral dogs gone mad and democracy is about to crumble, that you're saying is not, certainly not reflective of last term. And then my question is, how do we deal with the fact that a lot of court watchers seem to be experiencing this feeling for the first time that this second narrative that busted out, I think really turbocharged by the eviction moratorium ruling and the remain in Mexico ruling and the SB8 ruling, all of which happened in a really compressed amount of time on the shadow docket and then really into orbit by the speaking gigs, the Amy Coney Barrett and the Justice Alito and Justice Thomas and Justice Breyer, the charm offensive all summer. So now we're in this funny world where, and I think you're telling me it's overcorrecting for the benign narrative, but my question kind of remains the same, why? This seems to be the cycle, and I know you've watched enough cycles to know it, that this is very familiar to you. But like, you start, we all start from the place that look, the court is fundamentally a political institution. The court likes to pretend it's above politics. The press corps largely agrees with the Court that it's above politics. Something happens, the court behaves politically. I'm thinking of Bush v. Gore. The court behaves politically. The press corps is baffled, the public is angry, and the political scientists just stand around and say like, ha ha, you chumps. And we're definitely in one of those cycles, I think. And I guess my question is how do you, looking at the data, looking at the numbers, know when we've jumped from that first story of the court is essentially above politics, calling balls and strikes into that second it's politics all the way down story, or maybe the way to reverse engineer the question. Lee, how would you, who I think feels like we are way overtelling the court is purely partisan story right now? How would you know when it's the break the glass moment and the court really is purely partisan?

[Professor Lee Epstein]

Well, you know, looking at the data, I tend to look at the partisan vote splits in the data. So that tells me a story. I look at the voting patterns of the individual justices, kind of their inter agreements. I look at things like the salient cases, how are the high profile cases going? So those are the kind of indicators I look at when I see unanimity rates. And again, people are going to quibble. They're going to say, well, it wasn't really a 90 or an 81 because there were six concurrences and they didn't agree. But straight voting up or down, not looking at the doctrine, I see a court that tells me a story about the court too. So again, I have to say, Dalia, I'll be honest, this was a very hard term to analyze. Very hard because of these two different kinds of courts operating this kind of socially conservative, aggressive court. To me, abortion is driving a lot of the narrative that's what I keep seeing and reading over and over again. Again. I'll ask you a question. What if they had stayed the Texas law? Would we be in this kind of crazy partisan cycle right now?

[Dalia Lithwick]

Yeah, I mean, my strong sense is that if they had stayed it and just waited and taken this in December as the Dobbs case and in June came down with some apparently reasonable. We're just fudging the lines on an undue burden or we're, you know, what majority. What are the numbers of women who need to be burdened? They could have, I think, I really believe what I said at the beginning. I think they would have had a 57% approval rate this fall. And so the cost, I mean, I just keep saying it was this self own because there was an immense legitimacy cost. And I still don't understand to what end. And I think that's what you're asking, that this is an unforced error where the court, given that it was taking on guns and abortion and probably affirmative action and religious liberty, could have behaved in a way that would not have sent the country into orbit. And so I think one of the reasons I wanted to talk to you is if you and I agree, and on this I think we agree that the only weapon the court has is its legitimacy, why would you set that on fire in a big dumpster the week before the term starts?

[Professor Lee Epstein]

So I think you've answered your question, which is what has driven this, this orbit? And I think abortion is a lot of the answer as to what has driven it, the Texas abortion case, and thinks the world would look a little different today had they not done what they did. So there's a couple of stories to tell about it. I mean, one is a lot of my conservative FedSoc type friends tell me, look, Kavanaugh, Gorsuch, Barrett, they were put on the court to overrule Roe versus Wade. I don't think you think that's going to happen. I don't think that's going to happen. But they were put there to do that. And this is kind of a step in that direction. So that's one narrative. The other story to tell is this is really about Brett Kavanaugh. Brett Kavanaugh could have prevented this whole news cycle that you're referring to. And what is going on in his mind, I haven't a clue. Right. If you look at the data, he's normally, not always, but normally with the chief. And why he didn't join the chief here is perplexing to me. So I could tell a bunch of stories, but I'm making stuff up here right about what's going on.

[Dalia Lithwick]

More with Professor Lee Epstein about the shape of the Court as seen through the data on its decisions After a few words from some of our sponsors, I have a special announcement for you today. This year marks the 25th anniversary of Slate, and for a limited time only, we're offering our annual slate plus membership at $25 off. As a member, you'll get no ads on any of our podcasts, unlimited reading on the Slate site, and member exclusive episodes and segments from us, like our awesome bonus segment with Mark Joseph Stern, which is coming up for Slate plus members in just a few little minutes, and special extras from other shows like Slow Burn and the Political Gabfest. For the past quarter century, Slate podcasts have been covering all the major news events. From elections to social issues to historic court decisions. Our culture shows have debated if things are sexist. Name the best summer songs, explain the latest TikTok trends. If we have become a part of your listening routine, we are going to ask that you support our work by joining Slate Plus. Sign up for Slate [e-mail] Amicus plus to keep us going for another 25 years. Again, we're giving you $25 off an annual membership through October 31st, so sign up [e-mail] AmicusPlus let's get back to my conversation with Lee Epstein, the Ethan Ah Shepley Distinguished University professor at Washington University in St. Louis. Lee is also co director of the center for Lee is also co director of the center for Empirical Research in the Law and principal investigator of the U.S. supreme Court database. So for me, Lee, the last piece of this is the Justice's reaction to the story, because it seems as though what I find fascinating is that and again, this is the water you swim in. But when Adam Serwer writes a piece in the Atlantic that says, hey, the Court just wants us to believe this ridiculous bunk about their nonpartisanship, right? He says. The quote is the conservative movement seems to have secured the Court for a generation at least. But that is insufficient. The right wing justices also demand their decisions be seen as the outcome of dispassionate legal reasoning, not partisan warfare. And this is the thing that sends Justice Alito over the edge. So then Justice Alito goes to Notre Dame. Initially, the speech is like close to recording. They finally relent and put up a live stream. And then he just rips into Adam Serwer. And I don't mean to name check Justice Alito because Justice Thomas has said the same thing in recent weeks. Justice Barrett has said the same thing in recent weeks. So has Justice Breyer all summer long. But it is fascinating how triggered they are when people start to talk about not just the numbers and the data that you're sorting, but the claim that they're oracular. That seems like it's the false consciousness that makes them crazy. And I guess, you know, this is the question that's been driving me for a few weeks, is when Justice Barrett flies out to Kentucky and stands next to Mitch McConnell, who, you know, is still spiking the football for taking that Scalia seat for himself, and she says, we're not partisan hacks. Does she really believe the balls and strikes story, or are they just so affronted by the fact that there's a political story being told? I don't get it.

[Professor Lee Epstein]

You know, it's actually hilarious, right? I mean, they have lived. It is. It's hilarious. They have lived through these confirmation proceedings. You know, why are these confirmation proceedings so ideologically and partisan driven? Because everybody knows that, you know, once they're on the court, and Elena Kagan is a very different person than an Amy Coney Barrett. Right? We all know that. It's just hilarious in the center of it. So I think they get this. Of course they get this. So here's the way I think about it. What are they supposed to say? Are they supposed to go out there and say, hey, yeah, this is really a partisan court. This is a political branch of government? Should they say that or just. Should they say nothing? You don't hear, for example, Elena Kagan talking a lot or the Chief talking a lot. They're very quiet. They don't say much. So what are their alternatives?

[Dalia Lithwick]

Am I right, Lee, that after the Brethren, the famous Woodward and Armstrong expose on the court, that really did, I think, leave the. That Oracle narrative, you know, in a smoldering heap for a long time, that the justices really did stop talking, that they did. They were meticulously careful. I'm thinking of Justice Brennan, I think, who just stopped giving public speeches. You know, they just made the decision that they had just been shelled. The public, you know, the curtain was ripped off. Oz was revealed to be like a little fat guy behind a curtain. And they just stopped trying to persuade the public. And something seems to have happened. In fact, I can recall because it was in the beginning of my beat, Justice Scalia sort of slowly, reluctantly creeping back into the public eye and saying, you know, I'm going to just talk I'm going to really take it outside the four corners of the opinion and I'm going to tell the world what I think. So am I right that these decisions to do, to sort of the question you're pointing up, does it serve anything when they talk about it, that that also responds to these ebbs and flows in legitimacy?

[Professor Lee Epstein]

It could, you know, as an empirical matter, I don't know. What I know from the work that I did with Posner and Landis is the justices are definitely, not all the justices are definitely out and about, more talking. And Dick would say, well, it's part of the perk of being a justice, right? The sort of celebrity culture that they like being out and about. So what should they say when they're out and about and they have these massive audiences out there listening to them? Look at Ruth Bader Ginsburg. My gosh. And she talked about anything and everything.

[Dalia Lithwick]

And she was Beyonce, right, that she, I mean, she could have filled the stadium and people were all wearing the collar, Right.

[Professor Lee Epstein]

And so some people have done this, Ruth Bader Ginsburg, incredibly effectively, even though they've put their foot in the mouth on occasion. We can think of some of the Ginsburg bloopers. So why now when the justices have been doing this for a long time? Maybe there was a gap after the brethren, but they've been out there talking and they've made the claim it's law all the way. We're not policymakers. We're not a bunch of politicians in robes. I've heard the speeches so many times. So why now are there speeches which are running somewhat along the same lines getting so much attention? I would throw that back to you.

[Dalia Lithwick]

I mean, my sense is that they're getting attention and this is just my very thin skin showing. But, boy, the press does not like to be blamed for this. And, you know, when you see Justice Alito snarking like, you know, we don't dash off our opinions the way journalists dash off their crap little columns. I'm paraphrasing. You know, it feels a little like shooting the messenger. And I think that. And that across the boards, right? I mean, every single justice has had horrible things to say about the press. But I do think that there has been a really fierce, particularly Justice Barrett two weeks ago, Justice Thomas two weeks ago, saying we're not partisan, the press is painting us as partisan. That is blowing up in their faces. But I guess my other question, if that's right, I mean, I just think you don't want to attack. First of all, you don't want to lock those people out of your speech and say they can't come and not provide a transcript and then go into a room and say horrible things about them. It just seems like this is Pollster 101 Bad Ways to Handle your image. But I guess the other thing is if that's true that one of the things they're doing that's becoming quite, quite polemical is attacking the press, then I would also want to ask you whether it's dumb to attack the press or whether that's smart.

[Professor Lee Epstein]

I think that's kind of duh. I mean, you know, like, you know, how many people out there actually read Supreme Court decisions? Everything that people know about the Supreme Court comes from reading your column or this Atlantic story. Pick your favorite website or your favorite newspaper, whatever. Everything people get is from the press. So why turn on the press? It seems like such an odd strategy.

[Dalia Lithwick]

Can I, can I ask just because I'm thinking of a column you wrote in 2018 where you said if this persists, this polarization and the American sense that all of the liberals are appointed by Democrats and all the conservatives are appointed by Republicans, this really is, I think you warned this clear as a bell, public legitimacy is going to suffer. That's happening now, right? I mean, that it is clearly in the discourse that this is just a purely partisan court. And I guess I have a two part question which is why does it matter? Maybe it's good that the scales have fallen from everyone's eyes and everyone can see that they really are just a purely partisan body. And I guess related to that is when is it time to panic? Because there's an election coming up and that's the court that's going to decide the election.

[Professor Lee Epstein]

Well, that's time to panic right there. I think the commentary on the court with regard to elections and voting rights is probably the scariest of the commentary that I read what this court has done. And so that may be time to panic. But you know, looking throughout history, the justices have been very good at pulling back. And this may be the pullback moment, right? It may be the time when they're saying, oh my gosh, there's nothing good being said about us. Well, in the liberal press, there's nothing good in the liberal press, the mainstream press, the, that's being said, it's time to pull back. And they can read the polls on abortion, they can read the polls on guns. They've been able to do it throughout history. And I think Roberts has understood the importance of doing that. The question is whether Kavanaugh understands the importance of doing that. The ball is in his court on a lot of these issues we've talked about, not voting rights. Voting rights is a different issue.

[Dalia Lithwick]

It's so interesting because what you're saying reminds me that I always have to ground these conversations in. In five years, we've gone from Anthony Kennedy as the media and justice to Brett Kavanaugh as the media and justice. And from where you sit mashing the numbers, that's a sea change.

[Professor Lee Epstein]

That's a sea change. And it's, it's a change in terms of the level of uncertainty. I mean, Kennedy was a little quirky, as you know, but there were certain issues on which his vote was highly predictable. Give me a First Amendment case. Give me a due process case. Right. Kavanaugh is a little, you know, at this point, it's a little harder to predict. And the other point to make is we got used to a court very driven by one Justice Kennedy and before him, o'. Connor. This is not. I mean, I do think in the abortion case, Kavanaugh is pivotal. But going down the line, Kavanaugh, Gorsuch and Barrett, right now, their voting patterns are very, very close. And we haven't seen that kind of court in a long time where there's sort of this soft middle. And that also creates uncertainty and less predictability. Going back to your comment about the Brethren, it's like the Stuart Powell White days where they could jump over and form different kinds of coalitions. And it makes the court. This is why we had some trouble analyzing this term. It makes the court a little less predictable, a little more uncertainty.

[Dalia Lithwick]

So this is, I guess, a really hard and thorny question for me, Lee, but I always get the sense that you can write about things in a clear eyed, more clear eyed way than we in the press corps could do. And I'm thinking that when Fulton came down last spring, that's the foster care case, so many of us were trying to parse the footnotes and trying to understand the exemption requirement and had this hollowed out Employment Division versus Smith, trying to parse what had happened to the free exercise test. And there you were writing a paper, I think, last April with Eric Posner, just explaining the court's increased willingness to vote in favor of religious plaintiffs through your empirical accounting, through your data, and essentially just saying, oh, this correlates to, not just to the justices faiths, but also to help strongly held their faith views were. That's the kind of thing that would have had me run out on a rail. It's not permissible to speculate about such things if you're a constitutional law professor or a reporter. And it raises this question for me. Are you looking at this in a really clear eyed, empirical way, and are we just looking through our constitution tinted lenses? And if there is, in fact, this immutable wall between how you analyze the court and how we analyze the court, is there some way we could meet in the middle?

[Professor Lee Epstein]

Oh, well, you know, I think that that may be a too much of a black and white depiction of it.

[Dalia Lithwick]

Me, black and white. Okay, go ahead.

[Professor Lee Epstein]

You know, I think it's more nuanced than that. A lot of journalists, I speak to a lot of journalists, I provide them with data, especially Adam Liptec at the New York Times. He uses a lot of data. I think they use the data very appropriately. And so I don't see it as so polarized between what political science are saying and the press is saying. You have some interest in conveying the doctrinal changes, which is great. We need to know the data. My generalized data aren't going to tell the whole story. The idea of building in nuance in the decisions, as you do all the time, Dalia, I think that bridges the gap very nicely, combining the data with what you're reading in the opinions. I applaud that.

[Dalia Lithwick]

But do you think, I guess just to press it one, one notch further, that, for instance, during Amy Coney Barrett's confirmation hearings last year, where it clearly became out of bounds to talk about the intersection between, you know, her faith and her religious writing and how she would perform on the court, and that was seen as absolutely, I think, across the board, that was the rule of play. Would you, if you were advising Democrats on the Senate, or I guess Republicans on the Senate have probed that more deeply, or is it the kind of thing that you can measure empirically after the fact, but there's no way to press on it in a confirmation hearing?

[Professor Lee Epstein]

You know, I think the whole issue of kind of identity is important. And it's going to tell. It will tell a lot. Right. I believe the data that Eric and I analyzed and show religious identity, the degree of devoutness, religiosity matters. It affects the justices in particular kinds of cases. The question is, what is someone going to tell you? Right. You're going to ask, well, you're a very devout xyz, and how's that going to affect your judging? What are they going to do? What are you going to get out of those kind of Questions, except a lot of ire from a lot of Americans. I always think in terms of specifically religion. What if the President appointed the first Muslim to the Supreme Court or the first atheist to the Supreme Court? Would religion be off bounds then? Is religion off bounds only for kind of mainstream Christian religions? I don't know the answer to that, but it strikes me that religion has been off the table because of the kinds of religions that have been in the Senate confirmation proceedings.

[Dalia Lithwick]

Let's take a quick break and hear from our sponsors. I am talking with Professor Lee Epstein, who studies judicial behavior using empirical legal research. Let's wrap with this with the caveat that you're like, a little bit blowing my mind here and I have to really sit and think about some of what you're saying. But it does feel to me as though there's two through lines in our conversation today. One is a lot of this is Roe. Just an immense amount of this. If you factored out abortion, both in terms of how SB8 played out and the way Dobbs is gonna play out, everything would look different and also everything would sound different. I think you're saying that.

[Professor Lee Epstein]

I am.

[Dalia Lithwick]

I'm a little curious how you do that in the data, but I think there's no way to completely do that in the data. Right. That's just visceral.

[Professor Lee Epstein]

Visceral, yep.

[Dalia Lithwick]

And then the second thing that you're saying, you know, you've said a couple of times, what would the justices say? What could they say in their hearings? What. What are they to say in these speeches? It like you're saying the single best thing they could do if they are on this legitimacy precipice, you use the words pull back, that the best thing to do, to pull back would be to stop talking, certainly to stop setting the press on fire, setting legal academics who use the word shadow docket. None of that is helpful. And that the thing they could do is just try to have. They don't even have to have a term where the data looks exactly like last year, but they certainly have to have a term where it looks like they are being judicious and oracular and not being a bunch of, to use Amy Coney Barrett's formulation, partisan hacks. Right. You're saying just stop acting out and this will revert to whatever the normal 50, whatever percent approval rating is.

[Professor Lee Epstein]

Right. I think that captures it pretty well. What we know about some of the public opinion data is the more people understand the court as an institution and how it works and what it does, the more that they like the court. Right. So if they want to go and talk, and they do want to talk, some of them, they love the celebrity aspect of this, at least as my friend Dick Posner frames it, talk about what the court does, how the court goes about its day to day business rather than engage in take on the press, engage in a counter attack on this partisan notions. It doesn't seem to make a lot of sense to me.

[Dalia Lithwick]

If you could predict whether you think they get it now. They understand somebody has popped their head in the chamber and said just stop and try to have a business as usual term and don't give these speeches. You think it would settle out. Your sense is that we are not at the precipice of a huge, kind of Warren Court style, send in the National Guard because the public is not with you. We're not there yet.

[Professor Lee Epstein]

I don't think so. I think that they can do a number of things. Docket control is very important. They've taken a couple of high profile cases this term. How many more do you really want to take? Do you want to get into diversity programs this term? I think they can do it. This kind of emergency app thing is just way overblown. Everybody talks about the abortion case and immigration and so on, but nobody really reported the fact that Amy Coney Barrett didn't even refer to the court of the Indiana vaccine mandate. That doesn't get reported. She just says, yeah, sure, fine, we're not and doesn't refer to the court for a vote. So I think they do have to lay a little bit low. Exactly what you're saying. If they're going to talk, talk about the court, the court's role in American history, whatever. But there's no reason to go out and take on the press if that's in fact what they've been doing. Right.

[Dalia Lithwick]

I love that because I've always said the court's legitimacy lies in showing its work. Right. Show your work. That's what Justice o' Connor used to always say. And that, I think is the reason people feel wobbly about these emergency orders is because a paragraph with one case citation saying, didn't you read our last shadow docket order? Doesn't feel like showing your work. Right.

[Professor Lee Epstein]

And I get that part, but we're not talking about a ton of cases here. Right. And if you. I've started to look, you know, across this entire. I hate the term shadow docket, by the way, so that's why I'm not using it. If you look across all these emergency reports requests that they get. If I analyze those data, this is going to look like a pretty legalistic court. To be honest.

[Dalia Lithwick]

I cannot wait. I can't wait to read it. And this is just, it's always just a treat to hear you mirroring back some of the ways in which, like my false consciousness is just so deep seated. Professor Lee Epstein has been looking at the court through the lens of political science for an incredibly illustrious career. She's the Ethan Ah Shepley Distinguished University professor at Washington University in St. Louis. She's also co director of the center for Empirical Research in the Law and the principal investigator of the U.S. supreme Court database. Lee, I know you were swamped today. I cannot, cannot thank you enough for coming and bringing your great brain to our show. Thank you.

[Professor Lee Epstein]

Always fun to talk with you. Thanks for inviting me.

[Dalia Lithwick]

And that is a wrap for this episode of Amicus. Thank you so much for listening in. Thank you so much for your letters and your questions. You can always keep in [e-mail] or you can find [e-mail] AMICUSpodcast Today's show was produced by Sarah Burningham. Gabriel Roth is editorial director, Director Alicia Montgomery is executive producer, and June Thomas is senior managing producer of Slate podcast. And we'll be back with another episode of Amicus in two short weeks.