← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
There Is No Musk-Trump Feud Without The Roberts Court
00:50:49
The original sin of selling the US Justice system comes home to roost at the Supreme Court.
Loading summary
Transcript53 lines
- [00:01]
Mike Podharzer
Put us in a box. Go ahead.
- [00:05]
Dahlia Lithwick
That just gives us something to break.
- [00:07]
Mike Podharzer
Out of because the next generation 2025 GMC terrain elevation is raising the standard of what comes standard. As far as expectations go, why meet them when you can shatter them? What we choose to challenge, we challenge completely. We are professional grade. Visit gmc.com to learn more. This episode is brought to you by Avid Reader Press. Legendary investor Ray Dalio's new book, How Countries Go the Big Cycle, explains the mechanics behind big debt crises. Larry Summer says Dalio's brilliant, iconoclastic approach is an invaluable resource, and Hank Paulson says it provides a solution to what is the biggest and most certain threat to our prosperity. Read it to understand the greatest economic issue of our time, available now wherever books are sold.
- [01:07]
Dahlia Lithwick
I'm Dahlia Lithwick and this is Amicus Slate's podcast about the courts and the law and the Supreme Court.
- [01:16]
Mike Podharzer
It's not just the big headline things, but it's becoming a thoroughly corrupt system where it's not just too big to jail, but it's too big to bother following all the laws that have protected our health and the environment and our rights at work. That's where we're headed.
- [01:39]
Dahlia Lithwick
While this is in no way a show about Donald Trump and Elon Musk and their spectacular matrimonial breakdown this week, complete with public threats and tantrums and whatever the social media equivalent of good old fashioned table flipping would look like, let's pause to reflect that without the John Roberts court, we wouldn't have a billionaire who mistakenly believed he bought America last year just because he paid $295 million for it and who now wants his money back. Come to think of it, without Mitch McConnell and Citizens United, we wouldn't have a President Donald Trump who believes he owns the judiciary simply because rich donors paid for it. And yet these judges won't stay owned. We taped this week's conversation about what money can and cannot buy when it comes to democracy and the law before Musk and Trump showed up screaming at the returns counter. But in a sense, this is the perfect materialization of why selling off the American justice system was the original sin. While chaos and popcorn reign for White House watchers, for those of us who report on the Supreme Court, a couple of themes are in sharp relief this end of term chief among them immunity and its bedfellow, corruption. As Professor Jed Sugarman told Mark Joseph Stern last week, last term's decision in Trump v. United States provided the president with not only a get out of jail free card, but also a get out of law free card. This week we wanted to think about the money that can buy you out of jail or out of the law itself and the ways a court or democracy is can have a price tag. Whether it was Elon Musk doing away with the agencies that regulate and monitor his companies, or Donald Trump accepting a sky palace from the Qataris, or the big law firms taking deals to avoid the ire of the president, this get out of jail and get out from under the law for millionaires club is open for business. Our guest this week is Michael Podharzer. He's the former political director of the AFL cio, a senior fellow at the center for American Progress. He's a founder of the Analyst Institute Research Collaborative, and he has this prodigious gift for using data and numbers to explain democratic institutions in decline. Mike also publishes this indispensable substance that you must subscribe to. It's called Weekend Reading. And Mike was on this show in March of 2023 warning us about what the conservative legal movement was doing to the judiciary. And I re listened to that episode this week and it was kind of prescient. So welcome back, Mike.
- [04:44]
Mike Podharzer
I'm sorry that it was prescient and thank you for having me back.
- [04:48]
Dahlia Lithwick
Well, I feel like you have been sounding this alarm for a lot of years now that the Supreme Court was put up on the auct block and then it was sold off to moneyed interests and a lot of court watchers were like, no, but it's the court and we need the court. And that you were being hyperbolic. So I'd love for you to just sketch out before we even begin how that manifests in 2025, where the court almost feels like it's existing in like the shadow of the Trump presidency.
- [05:21]
Mike Podharzer
I think that's right. Although I think that thinking about it as something that's put up on the auction block is the kind of thing that makes it seem hyperbolic. Right. When you think about it in sort of cartoon villainish kind of way, it seems improbable and dismissible. Right. The point that I've argued, and hopefully folks who haven't will go back and read, because there's a lot of data here, is that what this Robert's Court represents is the success of a several decade project to create the whole legal movement that I'm sure everyone listening to this is familiar with because you've done such great reporting on it. But it isn't what it used to be. Where Republicans would Put, quote, conservative justices on the court. What happened around the 70s and 80s was that in a sort of Powell Memo 2.0, those same players realized that instead of trying to do a better job working the refs, doing a better job filing good briefs or having, you know, the right kind of arguments, they would just hire the refs. And if they could get a majority, they would be able to accomplish their goals, their agenda that there was no way to accomplish through democratic means. This is a coalition of plutocrats who still were unwilling to accept the constraints of the New Deal, and right wing religious folks who were unwilling to accept the whole 60s and 70s and accomplishment of equality. But they understood that that agenda was so unpopular that no one could imagine championing it or winning it through Congress. And so the only way to do it was to have majority on the Supreme Court that was put there to do this. So as silly as it sounds to think about an auction block where the Supreme Court on First street gets auctioned off, it seems entirely like rational behavior. If you're billionaires and you think this should be a different country, to put together the resources, the billions of dollars it took to create a legal movement to accomplish it. And that's what is unprecedented. At other times in our history, the court has done terrible things, but almost always it wasn't because those justices were put there to do it. That's the difference.
- [08:10]
Dahlia Lithwick
You wrote an incredibly important piece a few months back that I commended to everyone at the time called the Courts Will not Save Us. By way of setting the table a little bit for the conversation we're about to have. Parse out for me why this what you call the bipartisan acceptance of judicial supremacy and the passivity and the learned helplessness that comes with that, has delivered us into what has been, as you say, a slow, rolling, decades long constitutional crisis.
- [08:45]
Mike Podharzer
Sure. And to do that, I want to use two quotes that I think really capture the question you're talking about. And one of the words you use, judicial supremacy, is the idea that is so baked into everybody's brains that you don't think there's another alternative way to think about the law because it is bipartisan. Right. But after the Dred Scott decision, when Lincoln was inaugurated in his first inaugural, he said, if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the people will have ceased to be their own ruler. And that really captures to me what's essential here. Right. All of the procedure, the Constitution, everything Really has to always go back to be checked against the idea that our government, government has the consent of the governed, that we are actually the sovereign in this nation. Right. And that's what he captured there. Right? The idea that if something that big can be decided irrevocably without any recourse by the people, we are kidding ourselves if we think we live in a democracy or that our vote matters. And unfortunately, because it's been bipartisan and the elite media all just passively accept what the court says as true as necessary, we've lost sight of what it means to have a government that has our consent. Right. Because when you think about the things the Roberts court has done, let's let billionaires spend as much money as they want. Let's erase the Voting Rights Act. Let Dobbs every one of those things, you think about the way they've changed the country since 2008, and not a single vote on any of it was taken in Congress, not a single vote to do it. Right. No president said this is what we should do. And our eyes are so misdirected and trained on what happens in the White House and Congress that we just accept it. Right. In fact, they have governed us in that way. And I also find the other quote that is sort of the perfect balance here is what John Roberts actually said on C Span at the beginning of his turn. The most important thing for the public to understand is that we are not a political branch of government. They do not elect us. If they do not like what we are doing, it's more or less just too bad. And how that didn't set off alarm bells everywhere. Right. And they follow through and they just keep doing it.
- [11:45]
Dahlia Lithwick
And I wonder if you can affix that to this set of categories you. You have made about the difference between rule of law and rule by fiat. Because I think we very myopically tend to hyper focus on the rule of law as though that has some meaning and that it is unerringly a thing that we all have a fixed agreement on. And, and your point is like rule by fiat is something entirely different and we are conflating the two.
- [12:17]
Mike Podharzer
Right. And that is I think, again, the sort of bipartisan failure on broadly, people who want an America with freedoms and democracy. Right. Is this unexamined and uninterrogated idea that some procedure, some received procedure is the only thing that we have to evaluate what's happening against? Now, the distinction I was making, which I think is really important, is what I call sort of hyphenated rule by law, to create a new word, which is what most of the district courts have been doing over the entire Trump term, right? Which is the judges that were not appointed by Trump have been following the law. The judges for the most, especially the Supreme Court that he appointed have not. They just make it up as they go to get the outcome they want. And that's what I call rule by fiat. And one of the important things, if you look around the world at countries in the kind of process of either a transition or not that we're in, is that we really rapidly have to develop an exceptional vocabulary. Because as long as we like talk about elections as if they're always the same no matter what, right. We can't see that. We used to have elections where outside groups didn't spend a majority of the money in every competitive race in the country. In fact, they spent nothing. Right? But as long as we just have one word, elections, we end up thinking that we still live in a democracy, in the same kind of democracy, because we get to cast votes every two years. And like the biggest point here, one really important thing to do is instead of calling these ruled by fiat decisions, the Supreme Court did X, we said the Roberts court did. Right? Because it then pulls out that this is a mission, it is an outcome oriented result. It is a result of this coup that's been successful. When, as I suspect, they don't go along with what he wants to do on birthright citizenship, it will be all the justices are close and that is a Supreme Court decision. But when we give those fiat decisions the imprimatur of being a Supreme Court decision, we're really defeating ourselves in any conversation we're going to have. And it's down the line. We do desperately need a court system that follows the law, but we have to be able to distinguish it from the one that is just making it up as it goes along.
- [15:25]
Dahlia Lithwick
More in a moment with Mike Podharzer this episode is brought to you by NetSuite. With today's dynamic trade policies and squeezed supply chains, if your business can't adapt in real time, you're in trouble. You need total visibility. From global shipments to tariff impacts to real time cash flow. That's NetSuite by Oracle, your AI powered business management suite trusted by over 41,000 businesses. NetSuite is the number one cloud ERP for many reasons. It brings accounting, financial management, inventory, HR into one suite. You have one source of truth giving you the visibility and control you need to make quick decisions. With real time forecasting, you're peering into the future with actionable data and with AI embedded throughout, you can automate a lot of those everyday tasks, letting your teams stay strategic. NetSuite helps you know what's stuck, what's costing you, and how to pivot fast. It's one system, full control. Tame the chaos with NetSuite. If your revenues are at least in the seven figures, download the free ebook Navigating Global Trade. Three insights for leaders@netuite.com Amicus that's netsuite.com Amicus.
- [16:33]
Mike Podharzer
Hi, this is Joe from Vanta.
- [16:34]
Dahlia Lithwick
In today's digital world, compliance regulations are changing constantly and earning customer trust has never mattered more. Vanta helps companies get compliant fast and.
- [16:43]
Mike Podharzer
And stay secure with the most advanced.
- [16:45]
Dahlia Lithwick
AI, automation and continuous monitoring out there.
- [16:48]
Mike Podharzer
So whether you're a startup going for.
- [16:49]
Dahlia Lithwick
Your first SoC2 or ISO 27001 or a growing enterprise managing vendor risk, Vanta makes it quick, easy and scalable. And I'm not just saying that because I work here. Get started@vanta.com this show is sponsored by BetterHelp. Men today face immense pressure to perform, to provide and keep it all together. So it's no wonder that 6 million men in the US suffered from depression every year. It's okay to struggle. Real strength comes from opening up about what you're carrying and doing something about it so you can be at your best for yourself and everyone in your Life. With over 35,000 therapists, BetterHelp is the world's largest online therapy platform, having served over 5 million people globally. It's convenient, too. You can join a session with a therapist at the click of a button, helping you fit therapy into your busy life, plus switch therapists at any time. As the largest online therapy provider in the world, BetterHelp can provide access to mental health professionals with a diverse variety of expertise. Talk it out with BetterHelp. Our listeners get 10% off their first month at betterhelp.com amicus that's BetterHelp help.com amicus let's return now to my conversation with Mike Pothorser. I feel like since Trump 2.0 began, we've had this through line. I'm remembering Simon Sandoval Moshenberg, who represents Kilmar Abrigo Garcia, coming on the show and saying, we conflate law with power, right? We think those are the same thing because the government can do something. We think it's the law. And then, you know, on the show just two weeks ago, we had a conversation with Professor Aziz Huq, who was grafting Ernest Frankl's dual state conception onto the present moment and sort of makes this, I think, sort of really interesting descriptive point that we think that as long as the law is ticking along on this normal track for most people, right, parking tickets and, you know, divorce and disputes over property, the second track, this machinery of terror deployed for disfavored minorities can be ignored. Right. And I think one of the things that you're tilting at, and it's why I wanted to talk to you today, is that America has also had a dual state system wherein rich people can just pay their fine and get out from under the legal system. And Donald Trump, to be clear, has been making his home in that second state certainly since the 1970s. And I wonder if instead of thinking about this the way Professor Huck was, as you know, competitive authoritarianism or creeping fascism, we're just reverting to another kind of dual state system in which some people are just too rich for the law.
- [19:50]
Mike Podharzer
Right? No, I think that that, again, is not original to Trump. It is just all of these things have been snowballing, Right? If you think about it, after Watergate, the reaction of the system was to pass even stronger laws to try to contain the kind of corruption that was going on. And in fact, even during the Reagan administration and Bush Administrat H.W. bush, you had Charles Keating and Michael Milken and others who were caught going to jail, right? Fast forward to 2008 and the housing crisis, and no one goes to jail. Somehow, no one was guilty of anything. And this is a big part of why the public's confidence in institutions has just been tanking, because it's obvious to everyone, but the people sort of in the bubble that we are now have a class of people who are too big to jail. And it comes out first in some pretty high profile ways like I described. But what we're sliding into is, and I think this is where the Wilcox decision and the other actions that are being taken against independent execution of the laws is your workers try to organize a union. Well, you get an NLRB that says, nope, you lost the election. Right. You engage in wage theft, you get a DOL that looks the other way. Right? And so it's not just the big headline things, but it's becoming a thoroughly corrupt system where it's not just too big to jail, but it's too big to bother following all the laws that have protected our health and the environment and our rights at work. Right? That's where we're headed.
- [21:54]
Dahlia Lithwick
And just to clarify for listeners, the Wilcox decision that you're referencing was the decision from two weeks back that I think got a lot of attention because the Supreme Court seemed to overturn Humphrey's executor on the shadow docket without reasoning and carved out the Fed without reasoning. But what your point is, this actually isn't just a decision about overturning precedent. This is a decision about massive knock on effects for workers around the country.
- [22:25]
Mike Podharzer
Right? Right. And all the other agencies that are in that category that had independence. Right. It's like this is just one more example of how over the last century at punctuated periods we realize that we have to constrain essentially capitalists, we have to constrain business. And each time something terrible happens, like you the crash in 29 and such and you get the securities and Exchange Commission. Right. You get huge environmental catastrophes and you get the epa and piece by piece there's progress. And each of those and those independent agencies were created to be independent because it was obvious how open to capture or bribery the people enforcing those laws would be and what power it would give to an executive if they could dispense favors by selectively enforcing these laws that people sacrifice so much to get on the books in a democratic fashion. Right. I'm glad you brought up Humphrey's executor because that was kind of like really getting to me is that we only have these conversations in terms of the problem being overturning precedent or what it means in some abstract sense of how we should be governed rather than any attention to whether we should have independent agencies. Right. All of that time that was spent like parsing the original case and everything else should have been devoted to explaining to people broadly what their stakes in the decision were. Right. Unless you really paid attention, you would think this was just about does the President get to decide this or do we have right in this abstract way. But if they want to call the question on whether we need independent agencies to execute the law, that should be the national conversation.
- [24:36]
Dahlia Lithwick
I think you're saying something really important here, Mike, which is we get so focused in on. I'm thinking of the birthright citizenship case too, where you can make plausible arguments if you want to about originalism and textualism and then it just seems like it's a coin flip away. Right. I don't know what are they going to decide? There's merit on both sides. And I think your point is we're kind of carrying their water when we seed the ground of. No, actually this is why we have independent regulatory agencies.
- [25:09]
Mike Podharzer
Right?
- [25:10]
Dahlia Lithwick
Exactly. Whose heads can't be removed willy nilly. And we think all that ground and then get into a fight about, you know, well, maybe this is not how that statue was crafted. And I think that's a good point. I want to ask you to be a labor guy for one more minute because you have talked a lot about how eviscerating unions and the labor movement is really a kind of unseen priority in the Trump administration. And you devoted many, many pages, I think, to expl. The administration's attacks not just on government workers, which I think has been quite visible, but private sector workers, too. And I wonder if you just. I know it's an immense amount of material, but give us a sense of.
- [25:57]
Mike Podharzer
What this has looked like in a very good way. People like Levitsky and Ziblatt and Tim Snyder and Ruth Ben Guillot and Kim Shelley have really done a good job trying to educate people about what it looks like when an authoritarian tries to consolidate power. And that, to a very great extent, has been useful in shaping our understanding of what they do when they attack the media, what they do when they attack the law firms or the judges and so on. But what keeps getting left out is right at the top is taking out the labor movement in the country. You know, that famous first they came for, quote, unions were third. And you can sort of put together a scorecard. The authoritarian efforts that have been successful, Chile, Brazil, Turkey, Greece, Spain, Myanmar, Egypt, Iran, South Korea, Thailand, Pakistan, Peru and Nazi Germany all began with outlawing or suppressing their labor movements. Countries where they've defended themselves against that or come back, some of them are famous, like Solidarity and Poland or the miners in South Africa. But it was also in Spain and Brazil and Korea and Indonesia and Egypt and Sudan and eventually in Brazil, where Lula the steelworker became president. Right. And Venezuela. Right. The mainstream corporate media basically ghosts the labor movement, ghosts working people. But a vibrant, a robust labor movement is essential because it is a vehicle for institutional collective action. We all get excited by Tahrir Square, where people seem to be coming together to rise up against it, and you still get a dictatorship because it can't last. It can't monitor it, it can't push back against it. But in the United States, to bring it back, I think in an important way, a big, a big part of why sort of that recently recovered memory of the fascist tendencies in the 30s in the United States didn't happen is because of the creation of the Wagner act. And the labor movement, which was a bulwark against that tendency it was the way the working people in this country had a voice in our future. And that's why at this moment I'm really concerned. Because each time when something is done to ding the labor movement, it's a page four story. And people like you and everybody else who's not in a union thinks it's about just, oh, those working people, right, they don't understand the connection to their own freedoms. They don't understand how an essential part of democracy is collective action.
- [29:02]
Dahlia Lithwick
You had, in your recent substack about the attacks on labor, you noted, and I hadn't really crystallized this until I read it, that when Reagan attacked unions, it was because of a rush to globalization and to financialization. When Elon Musk and Doge went after unions and labor, it was, you note, a means of transitioning us to AI. It's a very different end game. And the other thing you flagged is that one reason Doge targets government workers is that if you can break the government, you can privatize everything. And the tech companies have skin in that game too, Right?
- [29:49]
Mike Podharzer
The way in which the media covered tech's sudden romance with Trump as bending the knee has it completely reversed. We're at this moment, which has not gotten enough coverage, where the European Union is really making gains, trying to tackle social platform regulation and where at the birth of the AI industry, the question will be, will there be regulation or won't there be? Right. When the Internet first came out, everybody was techno optimist and no constraints were put. There were no constraints put on them at all. And look at the toxic mess we have, right? So everybody in that world understood that in these four years, the way in which AI would be allowed into our society was going to be decided. That's a massive stake for all those tech companies. And especially once Musk understands that and Musk sees the way that the Biden administration was really trying to align with the EU to constrain them. This was a no brainer. That's one part of it. And it also, and again, I don't want to admit this is the only reason, but it is another reason why the administration is pivoting away from Europe. Right? Because for all of those tech bros, the current EU leadership is sort of the villain. That's why you see Vance talking to the right wing parties and Musk talking to the right wing parties. Right? Because the right wing parties are down with, you know, no privacy laws and such. So that's part one. The second part is that, and I'm certainly not predicting this will happen. But you take faa if it gets worse, and God forbid there are crashes or whatever their expectation is, the next step would be FAA X. Right. That. Well, you see, the government can't do it, so we have to give it to private companies. And that does a couple things. One, it puts all of this further outside the reach of democratic accountability. It continues the trend towards the people in government not even being able to understand what it is they're trying to regulate because they're so dependent on private contractors and putting it out. And AI Government is an enormous market for all the investments these companies have made in AI Right. It's the government as a revenue stream, which has been for the defense industry to this point.
- [32:51]
Dahlia Lithwick
We're going to take a short break.
- [32:55]
Mike Podharzer
This episode is brought to you by Amazon's Blink Video Doorbell. Get more at your door with the easy to install Blink Video Doorbell. Get more connections.
- [33:04]
Dahlia Lithwick
Hey, I'm here for our first date.
- [33:07]
Mike Podharzer
More deliveries.
- [33:08]
Dahlia Lithwick
Hi, I have tacos for two.
- [33:10]
Mike Podharzer
Oh, thanks. We'll be right down. And more memories, babe. Come down.
- [33:15]
Dahlia Lithwick
I have a surprise.
- [33:16]
Mike Podharzer
All new Blink video doorbell with two year battery, head to toe, HD view and simple setup. Shop now at Amazon.com blink for just $69.99. Ryan Reynolds here from Mint Mobile with a message for everyone paying big wireless way too much. Please, for the love of everything good in this world, stop with Mint. You can get premium wireless for just $15 a month. Of course, if you enjoy overpaying. No judgments. But that's weird. Okay, one judgment anyway, give it a try@mintmobile.com Switch upfront payment of $45 for.
- [33:48]
Dahlia Lithwick
3 month plan equivalent to $15 per month required intro rate first 3 months only, then full price plan options available, taxes and fees extra. See full terms@mintmobile.com before we get back to my conversation with Mike Podharzer, I wanted to point you toward an episode from my friend Lizzie o' Leary over on what Next tbd. But something that's in sent a genuine chill down my spine. This week, Peter Thiels Palantir is planning to build a master database on U.S. citizens. In conversation with Shira Frankel at the New York Times, Lizzie asks, is Palantir building a data Big Brother? You can find that episode by searching what Next wherever you listen to podcasts. Okay, back to our show. I want to talk for a minute about something else. And maybe it's the hinge between the conversation we started with, which is these people were put on the Roberts court to do a job and they've done it and the rise of the tech bro. And I think that when you and I used to talk about these things, we talked about Leonard Leo and the conservative legal movement, and they believed that they were buying the courts to gift them to, you know, the Koch brothers and Harlan Crow. But here we have parachuting in Elon Musk and Peter Thiel and Curtis Yarvin. These are not, they're not only not your dad's oligarchs, they're not the oligarchs from three years ago when we started talking about this. And I think part of what is really complicated is. And you've just sort of flicked it, but I'd love for you to amplify it. That project isn't just to pollute and end regulation. That project is global and it's vast and it's irreversible.
- [35:38]
Mike Podharzer
Well, I hope it's not irreversible, but it's not going to be easy to reverse. I'll come back to it, but I'm not even sure reverse is a helpful way to think about it. Yeah. I think that if people aren't listeners aren't aware Charles Koch was like, to the very end, a supporter of Nikki Haley because of how much they didn't want Trump to be president and they continued to be dissatisfied. And we've more recently seen about Leonard Leo. They feel aggrieved because it was all their work to take down all of the guardrails against a runaway executive and someone else is reaping the benefit. They had a very different picture of what happened when they got to the mountaintop up and that this is what's happened. But that's again, why I think it's important not to try to think about it in the kind of cartoonish way. Right. If we understand, even though we don't get reporting about it, that there are contests within the oligarchs, or whatever we want to call it, and that they often go up against each other. Right. On these things. Right. So it isn't all predetermined they win or which ones of them win, but we have to be aware of it. And the reason I said maybe reversing it isn't the right way to think about it is there's a great quote from before. The last time we were in the the world was in this place when you had the rise of Soviet totalitarianism, you had the rise of the Nazis, the Italian fascists, you had United States socialist fascists, all of this sort of bubbling. And then you get The Depression. And the quote was, the old world is dying. The new world is yet to be born. In the interim, monsters, right? That feels very real today. And so the important point is that in the 30s, the New World that was born was the New Deal. It wasn't reversing those things. It was something new. It was realizing that our responsibility is not to try to claw back to the great world we lived in two years ago or something, which unfortunately seems to be where the Democrats are. It's to understand that in this moment, we need a new vision. We need a new rebalancing of power between all of us and the few of them. Right? And it actually happened within a century ago, Right? We had the same thing. Massive inequality of wealth, massive sort of rise of fascism. And in the United States, we actually pulled it off. And we pulled it off because there was a willingness for power sharing with working people. Right? And that is creating a labor movement. It wasn't from on high saying, we'll give you better wages. It's saying, we're gonna give you the tools to be powerful participants in the democracy. And that sort of economic and political equality is necessary to have a democracy. And we have to figure out how to do it again.
- [39:08]
Dahlia Lithwick
One of the things that I always come back to in your writing is that, you know, most Americans don't like maga. They don't care for doge. While DOGE was never a real government entity, it's certainly a toxic brand. Americans are not looking forward to a measles epidemic or plane crashes or not having FEMA in hurricane season. But as you keep saying over and over again, the levers of power have just been taken over by moneyed interests and by minority money to interest. And I guess my question is, what is the hope you want to articulate for sort of clawing back these institutions so that they are not by design, choking off the public will? It's going to require not spectating. What do we call that? And what does it look like?
- [40:06]
Mike Podharzer
So in the next minute, I'm going to solve the whole thing. No, I'm just kidding.
- [40:10]
Dahlia Lithwick
Yes. You've got 30 seconds.
- [40:11]
Mike Podharzer
I have 30 seconds to save the world. No, that's not going to happen. And it's not going to happen. Right. For a very important reason. And why I don't like this question, except it gives me a chance to say this, is that if someone thinks they can answer that question, they're part of the problem. If you think because it really requires not just our doing something, but an act of collective reimagination. If you think about 1775, many of the people who signed the Declaration of Independence still were trying to figure out how to make it work with Britain and the Parliament. And at some moment, collectively, they all thought, that is just never going to happen. We have to think of something else. And that's America, right? It isn't someone on the sidelines thinking, here's a plan. It's all of us just not accepting this and waking up and thinking we're going to do something different, that there isn't a way to reform our way back to something that's a little better, and that we start giving more oxygen to thinking about how to get to a better place, not how to win the midterms. That we have to think not about how do we make the next argument on a case, but how do we reimagine the way the law expresses the relations of power we want? And that's not Mike, it's not you. It's our collectively understanding we have to do something else.
- [42:03]
Dahlia Lithwick
I actually love that answer because it dovetails so neatly with the very last question I want to ask. We are now in June, and for all the reasons that you hate it and I hate it, the world is gearing up to watch, you know, the closing days and hours of the Supreme Court, and they're reverting to all the behaviors that drive you and me absolutely insane. They are gonna call it the Supreme Court instead of, as you noted, your preferred Robert's Court, and they're gonna import all their hopes and dreams into Roberts or good Amy Coney Barrett showing up to save the rule of law, right? And then cable news is going to report this as the law, and then we're going to, like, pop popcorn and speculate about whether Amy Coney Barrett is good or bad. For folks who've been listening for the last couple of minutes, you're very careful about the language that you use and that I use. What is the language of truth telling that would. If you were going to advise those of us who are both reporting on the court in the coming weeks and listening to report on the court, how is the best way to think about these closing weeks of the term using the sort of schemas you've just laid out and the language you've laid out in a way that is useful as opposed to sort of accruing more harm?
- [43:21]
Mike Podharzer
I think the most important thing is reporting any decision that doesn't have Kagan, Sotomayor, or Jackson on it as a Robert's Court decision. And instead of explaining it in terms of precedence, explain it in terms of the interests that what does it reflect? Because we know that the more extreme the religious cases and the Dobbs is reflecting the the O and white Christian nationalist portion of that coalition. We know that ACA and Morvy Harper are reflecting more the mainstream business part of that coalition. They are not representing different legal theories. Right. They are reflecting the different interests that are represented on the court and that that less attention's paid to the precedents and more to the impacts and to sort of stop abstracting the actual gains and losses that come out of these decisions. And one of the problems I think that the media has, and this is much more than legal correspondence. There's a. I don't know if you're familiar with it, but there was about 40 years ago, there's this essay called in the Context of no Context, which imagined how the media was evolving to being incapable of explaining anything that was happening today in terms of all the things that happened yesterday, which actually, as someone who was alive back then, was something that actually people did. But the media has this intense recency bias that the only reason B could have happened is whatever we saw yesterday from a. I don't know anyone who talked about the 2024 election and Musk spending so much money as being only possible because of a 54 decision by the Roberts court to let that happen, that should always be part of it. Every time something happens in the world that wouldn't have happened without those decisions, that has to be brought back. So that's really. And to talk prospectively about what this means, especially on our friend Humphrey and his executor and what that actually means. It's not just about executive versus Congress power grab. It's corporate versus you.
- [46:10]
Dahlia Lithwick
Mike Podharzer is not a lawyer, but he always, always, always kind of brings me back to a much more realistic and less captive place in terms of how to think about the courts and, and democracy itself. He is the former political director of the AFL cio. He's a senior fellow at the center for American Progress, and he's a founder of the Analyst Institute Research Collaborative. He writes a substack that you must all subscribe to. It's called Weekend Reading. And Mike, I really want to thank you for ushering in Supreme Court season here on the show because it is really, really just an immensely useful exercise to think very, very right now about what the court is not and what it can be. So thank you for being with us.
- [47:04]
Mike Podharzer
Well, thank you so much for having me.
- [47:15]
Dahlia Lithwick
That's all for this episode. Thank you so much for listening and thank you so very much for your letters and your questions and your thoughts. You can always keep in touch@amicuslate.com or you can find us at facebook.com amicuspodcast amicus plusketeers if you haven't already, check out this week's bonus episode for Slate plus subscribers. Mark Joseph Stern and I broke down a bumper crop of decisions on Thursday in some big cases about guns, separation of church and state, and workplace discrimination. Opinionpalooza is in full swing, so so we are releasing bonus episodes when the biggest decisions come down. Subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or visit slate.comamicusplus to get access wherever you listen. And you can stay up to date with the latest coverage of the courts and the law straight to your inbox. Sign up for Slate's legal brief at Slate, delivered every Tuesday. Sara Burningham is Amicus's senior producer. Our producer is Patrick Fort, Hilary Frye is Slate's editor in chief, Susan Matthews is executive editor, Mia Lobel is executive producer of Slate podcasts and Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week. Until then, take good care.
- [48:55]
Mike Podharzer
Packages by Expedia. You were made to be rechargeable. We were made to package flights, hotels and hammocks for less.
- [49:07]
C
Expedia Made to Travel I'm Leon Nayfak and I'm the host of Slow Burn Watergate. Before I started working on this show, everything I knew about Watergate came from the movie all the President's Men. Do you remember how it ends? Woodward and Bernstein are sitting at their typewriters, clacking away. And then there's this rapid montage of newspaper stories about campaign aides and White House officials getting convicted of crimes. About audio tapes coming out that prove Nixon's involvement in the COVID up. The last story we see is Nixon resigns. It takes a little over a minute in the movie. In real life, it took about two years.
- [49:45]
Mike Podharzer
Five men were arrested early Saturday while trying to install eavesdropping equipment.
- [49:49]
Dahlia Lithwick
It's known as the Watergate Incident.
- [49:51]
C
What was it like to experience those two years in real time? What were people thinking and feeling as the break in a Democratic Party had went from a weird little caper to a constitutional crisis that brought down the President? The downfall of Richard Nixon was stranger, wilder, and more exciting than you can imagine. Over the course of eight episodes. This show is going to capture what it was like to live through the greatest political scandal of the 20th century. With today's headlines once again full of corruption, collusion and dirty tricks, it's time for another look at the gate that started it all. Subscribe to Slow Burn now. Wherever you get your podcasts.