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Michael Popak
Living in an extraordinary time, not just because it's the era of Donald Trump as we move to tyranny and fascism. It's because we also get the opportunity to watch how the judiciary, led by the United States Supreme Court, is dealing with it. And I've seen now and I wanted to report on three extraordinary events that have all happened in the month of May, some as recently in the last 48 to 72 hours while the Supreme Court term is still in session, with the last oral argument scheduled for this week, three separate Supreme Court justices, it's unheard of, it's unprecedented to so to speak, have stepped out of character during interviews and speeches and taken on Donald Trump. Three separate ones representing the full spectrum of politics, Chief Justice Roberts, Justice Sotomayor and Justice Ketanji Brown Jackson, all in their own way, defending the rule of law, defending the judiciary against attacks by Donald Trump to try to undermine the independence of the federal judiciary, attacks on law firms and lawyers. We can't run this country and the constitutional republic without having a independent, fearless judiciary and independent, fearless bar lawyers coming together to run our adversarial process at the heart of our justice system. It is impossible. And now we've got three Supreme Court justices without naming names but obvious who they're talking about taking on Donald Trump. It's extraordinary. You rarely hear judges, especially during a term, effectively talk about matters that have come before them or that are still on the docket. These three judges, justices know that there's going to be at least a half a dozen other emergency applications during the course of their normal summer vacation involving the Trump administration. They know they have a hearing coming up this Thursday on birthright citizenship and nationwide injunctions. And yet they have. They're speaking to multiple audiences. They're speaking to the American people about the role of the court system and the role, the special role occupied by Supreme Court justices. They're talking to Donald Trump and those around him to show fearlessness. And they're talking to history. I'm talking to you right now Here on the Midas Touch Network and on Legal af. Let's dive into it. This has been an extraordinary series of events as the Supreme Court fights existentially for its own existence and that of our democracy in the last month and a half. I mean, every time I'm on talking about the Supreme Court, I seem to be starting with, this is unprecedented, this is historic. Let's start it off. Let's kick it off with April, with Chief Justice Roberts wagging his finger at Donald Trump in a statement, a press release, a PR move in which the leader of the Article 3 branch of government, the judiciary, spoke directly to Donald Trump and told him to back off, pump the brakes and stop attacking the judiciary with calls for impeachment. He said, it's not impeachment. If you got an issue, it's an appeal. And he made that statement as Donald Trump. And Stephen Miller, who's not a lawyer, but he plays one in the White House, and Elon Musk. And right on cue, all of the social media influencers, right wing from MAGA that get paid by Donald Trump and White House to do their job in their rapid response team, all got together, started ganging up on all sorts of judges. Of course, only the ones that ruled against Donald Trump and the ones that were appointed by Democrats. So Judge Boasberg was on the receiving end in D.C. chief Judge of the D.C. district Court, Judge Zinnis, a judge in a federal judge in Maryland, and a dozen other judges. Because Donald Trump's administration and his Department of Justice haven't just lost once, they haven't just lost 10 times, they've lost 100 times. When it comes to injunctions, imperial and injunction hearings in close to 200 cases that have been filed. That's in the first 110 days of the administration, they're still averaging, they're still averaging over two cases a day. And I've already made my prediction at the start of this administration that it would be about 3 or 4,000 cases filed against this administration before all is said and done. And we are going, we are at the right pace to meet that projection in the face of that and all of those attacks. Robert steps out in April and issues this statement, not from the bench, not in an opinion, in a press release, effectively. Interesting. Now we move forward. May 1st is a day that we celebrate May Day, that we celebrate as Law Day in this country. It's been on the book since 1958. It's for those who believe in the rule of law. And everybody coalesced around May Day this year on the moderate, fair thinking side, liberal side, to defend the judiciary, to defend lawyers. And so they took to the streets on May 1st. And now we've got our first statement by a Supreme Court justice. We've got Ketanji Brown Jackson. Now, some things I have clips for and some things I don't because some of this is just reporting from the room, but there's no video or audio. So you'll have to trust me on my reporting. Tanji Brown Jackson in Puerto Rico during the First Circuit conference, because the First Circuit covers Puerto Rico. She's filled, she's there in a room filled with lawyers and judges and others. She takes that opportunity to address what she refers to as the elephant in the room, and we know that to be Donald Trump. And she says, I'm going to make a point of personal privilege. I'm going to use my time here to defend the judiciary whose independence is under attack and trying to be compromised by the executive branch, which is a road to tyranny. And she got a, at the end of this speech in which she defended the judiciary and also by extension, independent lawyers, she got a standing ovation from the room. That was not the only standing ovation that day. Even that day or in the, I'm sorry, that week there was another standing ovation, which is another moment of resistance by the Supreme Court, maybe small, maybe imperceptible to some people, but these are moments of resistance by an institution that moves at a turtle, turtle like pace, a tortoise like pace. And they're institutionalists and they don't like to make waves and they don't like to make public statements. But they are Katanji Brown Jackson, you know, basically breaking her silence to speak out, not in an opinion, not on the bench, in this, in this speech. Then we have later in the week another standing ovation when Edwin Kneadler, who you've never heard of, but we should have posters of him hanging in children's bedrooms. This should be an action figure. He is the Solicitor General, Solicitor General, the Deputy solicitor general for 46 years. He argued 160 times before the United States Supreme Court for every administration. And he was trusted by the United States Supreme Court because they knew regardless of who was in office, which president was in office, that he was serving, that he was telling the truth, that he did it with candor, that he did it with rigor, that they could trust him on the law and the facts. They may not agree with him in his opinion and his advocacy, but they could trust him when he finally decided I can't do Trump administration and I'm leaving after 46 years. I'm not even waiting till the hundred the hundredth day. And he headed for the exit. John Roberts stopped them at the end of an oral argument and said, Mr. Kneadler and the other advocate, please come back. I understand this is your I don't know if you know this, you've set the record for 160 Supreme Court oral arguments and I also understand that you are retiring or resigning. And we just wanted to tell you from the bench how much we've admired your work and trusted you as as the living embodiment of the rule of law. And they got up to a round of Supreme Court led applause. It was almost like that was the living embodiment of the Supreme Court at least many people in standing up to Donald Trump, literally. So you have those two events. Did you know 80% of resolutions fail by February? 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Let's roll that clip.
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John Roberts
I think most judges would agree that judicial independence is crucial. Do you agree? What do you think? Oh, yeah. I mean, it's central the only real political science innovation in our Constitution. I mean, you know, parliaments have been around for 800 years and obviously executives is the establishment of an independent judiciary. Even places you think are similar to ours, like England, the judiciary in England was part of Parliament. I mean, they sat in the House of Lords and because Parliament was supreme. But in our Constitution, judges and the judiciary is a co equal branch of government, separate from the others, with the authority to interpret the Constitution as law and strike down obviously acts of Congress or acts of the president. And that innovation doesn't work if it's not. The judiciary is not independent. Its job is to obviously decide cases, but in the course of that, check the excesses of Congress or of the executive. And that does require degree of independence. What do you think of these calls for impeachment of judges based on the decisions that they've made? Well, I've already spoken to that. And you know, impeachment is not how you register disagreement with decisions. That's what you're for, right? That's what, that's what you're there for. That's what we're there for.
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Michael Popak
Yeah. Okay. Well, that would have been. You see the, the dominoes here that are falling against Donald Trump with the Supreme Court. And I want to put it in that historical context. This is unusual. This is unprecedented. The Supreme Court doesn't talk this much. The Supreme Court doesn't act out this much. Yes, I know you want a more fiery, you know, lectern pounding speech. You're not going to get it from the Supreme Court justices, but this is the best that they can do. And it is extraordinary in their rebuke of Donald Trump. And then finally, we've got Justice Sotomayor, who's one of the moral centers, legacy people, institutional people, moderate on the United States Supreme Court. And she's in her 70s and she gave a speech to the American Bar association of all places, which is fine for me, but Donald Trump hates the American Bar association because he thinks it's some sort of communist, pinko, lefty, activist, Marxist organization. I don't know what he's talking about. I've been a member of the ABA since 1991. It is the most milk toast, plain vanilla organization I've, I'm ever associated with. I mean, you ever get. Anybody ever stumble across at a garage sale or otherwise? The ABA Journal, it's now electronic, but, you know, in paper, I mean, that would collect dust in a dentist's waiting room or while you're getting an oil change. It's that milquetoast, right? Yes. They rate judges that are selected by Donald Trump. And Donald Trump never liked the fact that they called him out for his unqualified judges. But that doesn't make the ABA a political organ of the, of the, of the bar. It is a lobby group for lawyer things. Yes. And it has a point of view. Yeah. So she gave a speech to the ABA at the African American Museum in Washington. Great museum, by the way, if you've never had an opportunity to go. And she said, and this one, again, I don't have that particular clip, but I do have one where she defends the rule of law. But this one, in the last 48 hours, she's telling the assembly assembled group, including law students that are in the room, she urged the legal profession, as the New York Times put it, to toughen up, suck it up. This is no time for snowflake ism. Okay? If you're not used to fighting, she told the group, and losing battles, then don't become a lawyer. Our job is to stand up for people who can't do it themselves right now. We can't lose the battles we are facing. She said without naming names. She worked at some of the firms that bent the knee. So did I. She worked at Paul Weiss, which was the first one to settle with Donald Trump to avoid his ire. $40 million. My law firm, Skadden Arps that I started with, they settled for $100 million and then they were called out in the last two weeks by Beryl Howell, who's on the, who used to be the chief judge in D.C. when she was ruling in favor of Perkins Coy and the firms that have decided to oppose Donald Trump because they've been put on a blacklist. She basically said the rest of the law firms that settled are cowards. I'm paraphrasing your cowards. You should have came to federal judges for protection. We would have given you the relief you sought. And clients be careful about continuing to be represented by these client by these law firms because they have an obligation of zealous advocacy under their ethics code. And how can they do that knowing they got one eye on Donald Trump's administration to make sure, they don't fall, you know, step into the bucket again. In other words, they're serving two bosses and she called them out for that. And Sotomayor also knows about the deal striking. She said to the lawyers, including the ones that worked at her old firm or my old firm, we need trained and passionate and committed lawyers to fight this fight. For me, being here with you is an act of solidarity. I mean, she didn't do a fist pump, but she might as well have. Again, the aba, she knew what she was doing. Nothing is by coincidence these days. Nothing is a coincidence. The pope getting selected, that particular pope is not a coincidence. The ABA has been attacked by Donald Trump as a. Oh, also the Smithsonian, where it was a double troll by Sotomayor because she is at the Smithsonian, which Donald Trump has claimed is a divisive race centered ideology and narratives that portray American and Western values as harmful and oppressive. I've been to the African American Museum. I mean, I don't know how you tell the African American experience without talking about how Western white values were harmful and oppressive. We're just going to leave out the part about slavery. I don't really understand that. So she's there for the aba, giving her, giving her, giving her speech as he's complaining about, you know, whiteness being under attack and complaining in a social media post that the justices are not letting me do my job I was elected to do, to get rid of immigrants without due process. I mean, I mean, the other two scary bookends for this whole analysis is Donald Trump and Stephen Miller. In the last, you know, last three days, four days, Donald Trump, this is an impeachable offense. Donald Trump telling the American people, I don't know what due process is. I don't know what the Fifth Amendment is. In his interview with Kristen Welker. I don't know. I don't know. Do I have to give everybody a hearing, get them before a judge? Is that necessary? I don't know. I got lawyers. I'll talk to them. And Stephen Miller saying, we're considering suspending the writ of habeas corpus that allows anybody that's been sent to a detention center or a prison to get before a federal judge. We're thinking about getting rid of it. We're at war, people. We're at war with Venezuela. News to Venezuela, news to Congress, news to the American people. But being used by Donald Trump in order to take away your constitutional rights, not just the rights of the people that are in detention, it's your constitutional rights. Because every time he infringes and nibbles away at our Constitution, it makes us us a lesser people. And I'm glad you're here with me on the Midas Touch Network and on Legal AF. Tune in to Legal AF the podcast Wednesdays and Saturdays at 8pm Eastern Time. Tune into Legal AF the YouTube channel Legal AFMTN that I curate with about a dozen other contributors. I'm doing a lot of the heavy lift there, but we got some amazing other people as well. And we got Legal AF the substack for all things Legal af. So until my next report, I'm Michael Popak. Can't get your fill of Legal af. Me neither. That's why we formed the Legal AF sub stack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the substack. You'll find the court filing and the oral argument there, including a daily roundup that I do called Wait for It Morning af. What else? All the other contributors from Legal AOF are there as well. We got some new reporting, we got interviews, we got AD free versions of the podcast and hot takes where Legal AF on substack. Come over now to free subscribe.