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Harry Littman
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Talking Feds Producer/Host
Welcome to Talking Feds. One on one deep dive discussions with national figures about the most fascinating and consequential issues defining our culture and shaping our lives. I'm your host, Harry Littman.
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Harry Littman
Looking ahead at the prospects for keeping Trump from realizing his autocratic ambitions, nearly all roads seem to lead to the Supreme Court and through the Supreme Court. In 10 months of Trump's second term, the court has repeatedly ruled in his favor, often reversing lower courts through emergency orders issued with little or no explanation. A few exceptions exist, including the court's insistence that the administration provide notice and a hearing before deportations. But the broader pattern raises the central question of this moment. Will the Roberts court prove a bulwark against authoritarian overreach, or will the task fall in its, in its absence to democratic resistance outside the court? Our guest is uniquely positioned to help us understand that critical point. Lisa Graves, founder and executive director of True North Research, longtime Senate Judiciary Committee counsel and senior DOJ official and author now of Without How Chief Justice Roberts and His Accomplices Rewrote the Constitution and Dismantled Our Rights. So you have a sense of the position that she may be taking here, but it's a sweeping and deeply researched account of John Roberts in particular and, and the modern conservative legal movement. Lisa, an old friend and colleague, great to see you and congrats on the book.
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Lisa Graves
Thank you so much, Harry. It's an honor to be on your show. And thank you so much for that lovely praise.
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Harry Littman
All right, so look, your book contains deeply researched chapters on abortion, guns, religion, voting rights, the administrative state. But for and for purposes of this interview, what I think is important is you present them as illustrations of a much larger story. So at the highest level, what's the broader narrative of the Roberts court that you're using all these different doctrinal areas to try to argue?
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Lisa Graves
Well, I think that there was this impression that Roberts created when he was first nominated that impression was that he was going to be a fair umpire, just calling balls and strikes. But what we've seen is that he has not just been calling balls and strikes, he has been changing the rules of the game, particularly around our democracy, about money, in politics, around maps, around voting in ways that are deeply regressive and that go against longstanding precedents that the courts, that previous courts have honored. And so we. When I looked deeply again at Roberts, having first looked at him when he was nominated to the D.C. circuit by George W. Bush, looking at his whole record and the record of the Roberts court, what you can see is a court that is basically the fruition of the no more suitors mantra, of the idea that they didn't want judges on the Supreme Court who would be fair, fairly applying the law, just following previous precedents, but they were trying to prevent people like Souter and instead have people who they really were convinced would move the law backward, not just by a decade, but by decades and even a century. When you look at some of the claims that Leonard Leo has made, he's the person who Trump tapped to help choose the people he put on the court. When you look at that agenda, it really is a regressive agenda. And in many ways, I think the court is not behaving like a modest or fair court. It's behaving aggressively. And we can see that in two particular instances. One is certainly the immunity decision, in my view, was an extraordinarily broad intervention by the Roberts court. And the Roberts court has followed that up with the 24 rulings this year overturning emergency temporary restraining orders that the court could just have left in place until the merits were resolved. And so I think this court is behaving in ways that are not normal, and people need to understand the origins of that.
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Harry Littman
Yeah. And that. So that's really front and center. I mean, your book begins with a whole piece about the 2005 elevation of Roberts and this extraordinarily, I think, effective. It's entered into American legal culture, maybe general culture idea of I'm an umpire. Well, this is an aside, Lisa, but do you have. What's your view of that whole kind of image? Is it. Well, first, I think you see it as being more strategic and hiding a different side of Roberts. But what about the whole notion? You've thought a lot about judges. You were instrumental in choosing them from the executive branch, from the legislative branch. Sounds pretty good. Do you like the idea but think he just hasn't executed it, or do you Think it's a flawed idea?
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Lisa Graves
Well, I do think that the reason we allow judges to decide cases is because we expect them to be fair. Why would you allow someone who is not fair, who had already pre decided the case, issue a ruling and be bound by it? The point of the judiciary, the majesty of the law, is that in theory we will have judges who are going to be fairly looking at the facts and fairly applying the law. And if they have personal views that really are instrumental, they would set those aside and not basically try to impose them as law. And so I mean, I definitely think the idea of a fair judge is really, really foundational. And so his analogy was not inappropriate in that sense. I just think it was constructed. And we know that he gave that analogy to George W. Bush when he interviewed with him. And Bush was someone who had invested in Major League Baseball, was a big baseball fan. And Bush writes that the thing he remembered about that interview was Robert saying he was going to be an umpire and the umpires aren't the most important players in the field. The other man in the White House, as you know, as the finalist, was Michael Ludig, who was, who did not.
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Harry Littman
Apparently we forget that sometime.
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Talking Feds Producer/Host
Right.
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Lisa Graves
The baseball analogy. And Roberts deployed that to great effect to the American people during his hearing. In fact, I suspect that if people know his name, that that may be one of the only images they actually associate with Roberts.
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Harry Littman
The family feud for Supreme Court who.
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Lisa Graves
Said.
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Harry Littman
Okay, well let's go back because I mean there's a lot of current doctrine, including the last few terms, but I think it's essentially a book about the origins, as you say, even preceding his elevation the D.C. circuit. But let you know for us we were ingrained with it. But let's go back for a minute to explain to people this no more Souters mantra because it's not simply we don't, we want it justice, not like David Souter, it's that David Souter fooled us, the conservative movement. There was a great quote in the paper by someone I know, but I guess I won't reveal it. But as it happened after, I think Levy, Weissman or maybe the Casey decision and the quote was the posse is out looking for John Sununu. And what that meant is we were assured. So in other words, it's not simply the kind of justice, but the lack of complete methodical vetting to make sure that the person was of the, you know, the right ilk to the extent they could. I'm not saying here that you may have views that they Literally had a catechism of what would you do with Roe? Et cetera. But nevertheless a feeling that like, don't get fooled again. We're gonna, you know, really be more careful. Enter John Roberts. And I just. You're right, this comes up at his. When he's elevated D.C. circuit. He has just had a short career, but as a very distinguished appellate advocate. Before that though, he's with the doj. And I'll actually tell a. I'll just say briefly, I overlapped at the time with him. And he certainly had the reputation then of being the ideological enforcer and the like. Not at all the middle of the road guy. Of course he was the political deputy at the ST's office. But give me your sense of his, you know, from Indiana, football team captain or whatever. There's a figure that you see as sort of bred to the bone of a new conservative movement that was reactionary, I think is the fair word. Really felt that there were. That the court had gone awry many times and wanted to reverse it almost more than a positive program.
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Talking Feds Producer/Host
If you would.
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Harry Littman
Lisa, tell us a little bit about the John Roberts as he was nominated in 2005 and the mindset of the. Of a sort of movement that you identify. You've mentioned Leonard Leo and the like that he was, you know, totally, you know, built from central casting for.
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Lisa Graves
Yeah, that's a great set of questions. Let me start with. Sorry, that's great. Let me start with the John Sununu thing because it really is telling because you know, one of the things I did in preparation for writing this book was reading basically all the other books I could find that related to this period. And one of the books talked about how when Leonard Leo's right hand man was reaching out to the Trump administration to offer the services of helping to advise them who to pick. The Trump lawyer who was Don McGahn, who later became the White House counsel, told Leo's guy, no, no, we're going to have John Sununu handle that. And there was silence because that was shocking because as you point out, the whole notion was that John Sununu had failed to deliver a judge who would deliver for them the results they wanted. And then Leo's man, you know, realized that he was joking and they both had a great laugh about how of course they would never let that happen again. And yes, they would love to have Leonard Leo help them choose the right people for the bench, choose people who they thought would. Would deliver on that agenda. And as you point out, it wasn't like, there was a litany that they had to answer questions. No one was asked how they would rule. But because of their role in the legal movement, and John Roberts in particular, in this way, they. They knew that he was their man, that he was going to be someone who would be, you know, pushing their agenda forward, unlike John Sununu. And, and also, as you point out, Harry, I do think that's very deeply rooted in John Roberts. He is someone who actually, as I wrote in the book, he wasn't actually a. A baseball player in high school. He was a. A football player known for his, you know, strategy in tackling his opponents. He was a wrestler, you know, who was really good at contorting other people in order to, like, win. Now, I don't think that people always fall into line with their high school sports.
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Harry Littman
You know, please, please the Lord. No, no, no.
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Lisa Graves
But, you know, when you look at Robertson's three years at a Harvard undergrad, three years at Harvard Law School, he comes into a clerkship, and then he goes right into working for Rehnquist. And Rehnquist then calls Ken Starr and says he's the guy. Put him up. Put him right in the Attorney General's office. And at that time, when Roberts was clerking for Rehnquist, who was then the most reactionary person on the Supreme Court, the Congress was getting ready to overturn a Supreme Court decision on the Voting Rights Act. Right across the street, they were holding hearings about how the Republican members of that court had issued an incorrect ruling in the Mobile, Alabama case by basically saying you couldn't look at the effects of. Of a voting change on vote dilution or on black representation. You can only look at the intent. So Roberts gets the tap to go into the Justice Department and lead the effort as a staffer to block the amendment of the Voting Rights Act. And that's where he really cut his teeth in that role. And then he wrote to his former mentor or his former judge clerk for, at the time and said how glorious it was to be in this administration that was reconsidering everything that was revisiting all the assumptions. And what the assumptions they were revisiting were often around civil rights issues, but more than that. And so I think Roberts really was a Reagan revolutionary, really was part of that reactionary movement. And now if you look forward to that immunity case, what you see is him not just pardoning Trump, in essence, by saying that the President has this extraordinary power to be immune from criminal prosecution, but in effect, he almost pardoned Nixon's ghost. The notion that a president, if he's engaged in the official acts, can do no wrong forever backward and forever forward. So I think Roberts has been keen on moving forward a pretty reactionary agenda, very reactionary agenda, and that immunity ruling is part of that. But the voting rights ruling in the Shelby county case in 2013 is also emblematic of his notion that he, I think with hubris, should set aside tens of thousands of pages of findings of Congress and an overwhelming super majority vote to reauthorize the Voting Rights act preclearance provisions and instead supplant that with his judgment that we don't need it anymore, that we don't need to have the Justice Department making sure that these states don't make it harder for Americans to vote, African Americans to vote in particular. And that unleashed a wave of hundreds of voter voting restrictions over the past decade or so. And that's not all. So Roberts has been enacting an agenda that he could not win from within the Justice Department, but from this new perch, this perch of being at the helm of the Supreme Court. That's my view.
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Harry Littman
Got it. And let me flesh it out a little bit. I want to just make a couple points in reaction. So, yes, the Shelby county case, I think a lot of listeners now know that that was the death knell for so called Section 5, which required many states, municipalities with histories of discrimination to do preclearance when they tried to change voting procedures. You know, we're going to change hours or change the voting places. That had to go through a kind of congressional determination. And it really is striking. The Congress had repeatedly approved, I think most recently until 2030. And I think it's fair to summarize the opinion as saying it's been a long time and we don't need that anymore. And, you know, a striking kind of determination for an umpire to make. That, you know, it really seems to be a legislative type determination, I think is, you know, is a fair criticism here and is a sort of similar idea, even though this seems like he has a certain gift for turn of phrase. But the idea that he wrote maybe in that case the way to end racial discrimination is to stop discriminating by race. And that's a facile formulation. But I think the answer to that is maybe, but it's for Congress to determine whether short term just discrimination or racial preferences and the like. Okay, I want to situate this in. I want to just one other quick point. Sununu was considered a political conservative. Much of the success of this movement is the real distinction between political and judicial conservatives, including, you know, there's a solid idea that I think neither you or I would disagree with about, you know, judges having a certain conservative mindset where, you know, we could talk a long time and we have about what that would mean. But so what really happened, you know, with a guy like Sununu is, you know, he could, it sounds like he's a conservative guy, but he didn't have the sophistication, which I don't think Trump has, and others that, like, no, we're looking for a certain kind of judge. And, you know, that really mattered. And that brings me, you know, I really want to get Lisa to the full court. But let's just as a sort of closing question about Roberts. So the overall debate about him, I think is, you know, that he's, there's something a little schizophrenic. There's a Roberts one and a Roberts two. There's the Roberts one, who is the institutionalist, cares about the court, tried to be a half step behind the rest of them in the overturning of Roe and the like. And then there's a Roberts, too, who basically, and I think this is your view. We can talk about it more when the stakes are high for the Republican Party, for partisan politics will come through for the Republican Party. Is your ultimate view that he's sort of both, but when the chips are down, he goes one way or another, or do you see him, you know, depending on the case, or do you see this institutionalist as always, a kind of guise to give credibility to the true believer? And I say this not just as a kind of academic exercise, but we're going to reach some cases where it'll be key whether the court understands that what's on the line is not just you could give a victory to Republicans that would really threaten the republic. And, you know, you want to think that the court at that point will know enough is enough. So anyway, Roberts one, Robert's two. Are they both at the same time? Depends on the case. Or is one just always a sort of mask or shill for the other?
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Lisa Graves
Well, you know, I'm reminded of one of my favorite Dr. Seuss books with thing one and thing two. So I just have to pause, get that out there for a second. But, but, you know, I, I really, I'm, I'm intrigued by the way you put that, because I think it's definitely to and the appearance of one, in essence, because I think that he's gotten a lot of mileage by saying he's an institutionalist by, you know, suggesting that he would be an institutionalist by his fans or his supporters saying he is. But when you, when you actually look at the institution of the court and what he's done, for example, he helms the Judicial Conference, which has done nothing about Clarence Thomas's massive gifts, really nothing, for years and years, swept it in the rug, rug at least twice with him at the helm of that as the leader of the court system. He has, you know, suggested to Congress repeatedly that it doesn't have any power to exert any ethics rules over the court to try to get, to try to get ethics rules that are binding and enforceable. And he's even suggested that, in essence, they're not bound by the, the types of disclosure rules that they follow every year in the, or at least they theoretically follow in the financial disclosures that Congress, that Congress has power, but under the Ethics and Government act, in essence, doesn't really apply to the courts that they allow it to apply.
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Harry Littman
All right. Yeah, but you could say that that's the stance of a hardcore court institutionalist, protecting its prerogative, or you could say it's, you know, and plus, I know you pointed out, but man, oh, man, not an easy task when there's no rules to get Clarence Thomas to. But I mean, this is maybe an unfair question, but is he sort of both or really just one Is, I guess, the view, the question, if I can post to you?
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Lisa Graves
Yeah, I do think he's predominantly the second. He's someone who is, is definitely willing to change the law, to move the law in order to help his party, the party that appointed him. And you know, it's interesting because in my lifetime, 75% of the justices appointed Supreme Court have been appointed by Republicans just through both, just fate in terms of when vacancies arise and then manipulation during, you know, from 2016 to 2020, in terms of whether someone, you know.
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Harry Littman
At the same time, they've won the popular vote twice, I think, since 1996 or so. Yeah, no, I mean, it really is a lot of bad breaks and nasty dealings. No doubt about it. Yeah.
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Lisa Graves
Yes. And, and, and the, and part of that is that you have a court that over that time, the, that movement got better at choosing who was going to get on it, to get people who would be on its side, who would be advancing its agenda. That's why they were so upset about the aca. How dare he not go along with them on the aca. But those instances are, but that's a Real.
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Harry Littman
That's pretty big point. Right. And the counterpoint of Roberts, he did not go with the conservative view on Obamacare. Right.
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Lisa Graves
Right. Although you know, when I look at that case, as I write in the book, I felt that the posture of that case targeting the tax power was never going to fly with a financial conservative because the tax power is, is one of the most discretionary powers, in essence in Congress to set rewards, incentives and punishment, to set policy. Tax is fundamentally policy. And if you're going to curb that, it could really curb the power of Republicans in other ways on that advantage that party. But you know, to the broader point of, you know, where Roberts is when.
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Harry Littman
It involves, you're kind of think one.
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Lisa Graves
THING two.
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Harry Littman
Right.
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Lisa Graves
No. Thing two.
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Harry Littman
Thing two.
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Lisa Graves
I mean. Yeah. Thing two. And I mean I do take your point on like maybe the defense against ethics rules is something where he is just preserving court power as part of the separation of powers. But when you look at that ethics code that he announced on the eve of a committee vote to allow a subpoena to go to Harlan Crowe and Leonard Leo, that code is weaker than the code that applies to lower court judges. It, you know, creates new. Yeah, it creates new rules that are lower rules for the, for the court. And it even, it even suggests that judges on the Supreme Court who have a conflict of interest can sit on a case if they need their vote to resolve it. So.
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Harry Littman
Right. Like you gotta have nine. And actually. Well, let me. You're the perfect person to ask this because as you've mentioned from, you know, both the bad luck of the draw but also some pretty nefarious dealings. Merrick Garland, Amy Comey Barrett. It is a lopsided court, but there's another issue, I think, or I can ask you how have the Dems approached their appointments when they've had the, when they've been in power? Is it just gambling in the casino and they do the same thing from the left or do they and you were right in the center of this, Lisa, do they not try to install, in your view, you know, the same kinds of non suitors on the, you know, solid votes?
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Lisa Graves
Well, I'm going to go on a limb here because I don't often talk about this part of it, but you know, there was Reagan, Reagan, Bush, and there were litmus tests that weren't necessarily effective. I mean they were announced by Mies, the Attorney General, that they would have a litmus test on abortion. So there was 12 years of this first effort, this first wave to really appoint people in order to Move the law to regress the law, to overturn precedents they didn't like. And then Clinton came in, and the appointments were very moderate. They were people who were big firm partners. That meant often corporate lawyers, along with prosecutors. No, no offense to any prosecutors in the room here, Harry.
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Harry Littman
Well, I don't think you're going out on a limb. I mean, it was. Right. Because you, you feel you got flack from the left all the time. We can't, you know, we. It's. But I'm sorry. Go ahead.
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Talking Feds Producer/Host
Right.
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Harry Littman
That the, that I do think that the. And, you know, maybe the Dems were wrong about this, but that the capture of the judicial selection function by the extreme wing of the Republicans just wasn't paralleled on the other side. I had my modest contribution to some of those things, and it was definitely not, oh, how do we balance Scalia?
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Lisa Graves
Right, right. It was about trying to find people who would be fair and they were mostly moderates and could get through the gauntlet of the Senate Judiciary Committee with Hatch at the helm and more. And, you know, there, There, you know, have been efforts in, in more recent years to try to diversify who sits.
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Harry Littman
On the federal courts, the kinds of professional backgrounds.
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Lisa Graves
Right. Yeah. Yeah.
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Harry Littman
All right. And I, So I'm sorry to be a little. To be pushing things forward, but there's so much I want to cover, and I'd like to move a little bit more. We've talked about the Federalist Society. That's where Leonard Leo comes into play. But the broader court. So, couple questions. You know, Roberts comes of age at a time when I think conservatives had a valid beef that, like in the legal academy or whatever, they truly were marginalized. And Roberts was of a generation that was remaking things. We now have a sort of Joshua generation that grew up inside it, knew that was the path to glory, et cetera. I just, I wonder, do you see any generational differences? The doctrinal concerns seem a little bit different than they were before, but, you know, they were a kind of scrappy, as you say, reactionary, revolutionary group for 15, 20 years. Now they've come of age. Do you perceive differences in the second generation as opposed to first generation of the sort of conservative Federalist Society movement?
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Lisa Graves
It's interesting because part of what I remember studying in the late 1980s on judicial interpretation was how much part of the initial reaction was really about Brown versus Board of Education. And there were. There's a lot of writing on the right about how to basically stop what they consider to be judicial activism. But not get called out for trying to overturn Brown. That shifted really their focus. When Roe happened, when Roe came down in 73, that became the focal point that that was where they were going to say the court had gone too far and they needed doctrines in order to overturn it. Now that decision was a 7 to 2 decision, in essence, a bipartisan decision in terms of the appointments to the court. A Republican appointee wrote that opinion. And so the party and the movement move very far, far to the right with Reagan and I think, you know, even farther to right now. And so when you look at that initial wave of writing, the attacks on Roe, but not just Roe, also Griswold and the access to contraception, the notion that there's a privacy right that can be articulated under substance view process. You know, in essence, since a long ago court shut down privileges and immunities from being, you know, what are the privileges and immunities of citizenship? So the abortion focus then really helped, I think, seed a generation or two of right wing lawyers schooled in the federal society, sort of career advancement, but also in the doctrinal assault on access to reproductive rights and on, and then amplified by the court recognizing a right to marry, that marriage equality is something that, you know, is core to freedom. If you can't marry who you, who you love, you know, are you truly free? And that actually was part of, in essence, a little split within the federal society in terms of Ted Olson and some of the other people on the right who, who realized that they really could not in, in, in their view, defend the bigotry against gays in America. But that then, you know, has been met by this right wing movement that was sort of the second generation or third generation of federal society. Lawyers who are not just like, aren't conservative in a certain sense. They're, they're, they're embracing a sort of theocratic worldview. They think that it's right, many of them have, have articulated in papers or speeches that they think it's right for them to like basically have their religious views be the law of the land in ways that affect marriage equality and access to reproductive care. And so there is a difference. And now we're seeing like even if maybe a fifth generation difference now that the federal society is coming in on, coming, you know, in on its, you.
- [30:09]
Harry Littman
Know, next Persona non grata. Right? Pretty interesting. He's, he's criticized Leo and it's, you know, it's going to be pretty interesting because now he seems unabashedly the first, second and third Qualification is loyalty to Donald Trump. So will we actually see Justice Emile Beauvais or Justice Eileen Cannon? Right. And I do want to say that you're right. But one sort of indication of this is really tried and true bread in the bone, first generation Federal Society types. Some of them have checked out big time. So Peter Kiesler, one of the two founders of the Federal Society, I think is now possibly a Democrat. But in any event, he's just so abhors what's hap. What's happening in the Trump administration. We've talked about Ludig, but also, you know, people sitting on the bench who at the time were very solid. Judge WILKINSON in the 4th Circuit, he had, you know, he understands the broader stakes and the actual application of what they said at the time, what, you know, were important judicial roles. But and then you see very broad ranks of Federalist folks. You know, I had that first generation was my generation. I had some, you know, understanding about their, you know, their views that, that but the, and the last bit has kind of show showed up. Are you sincere about them? Because I think there's a big cohort of people who like now it's the pipeline to a certain kind of credentialism and they're sophisticated enough that they have to understand the abhorrence or the, you know, the act, the anti democratic nature of Trump. But they're sort of there. An interesting point. Roberts, who you identify with the movement, he's more arm's length.
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Talking Feds Producer/Host
Right.
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Harry Littman
The recent Federalist Society meeting, Justice Barrett was there. Justice Alito, I think maybe Kavanaugh and Roberts, who, who as you say, has come into some flak from them, but just in general he wasn't and there's a feeling that he sort of preceded that movement. But the more junior justices are more of a piece. In fact, let me move there now. Well, first, anything you want that, that provokes.
- [32:42]
Lisa Graves
Yeah. So go ahead. I do think there is this, this fissure, this split happening because there are people who are far more radical who now have come out of this movement who are more aligned with Trump than some of the earlier generations who, like you point out, are really concerned about the rule of law and justice. And you can even see that in last year when Leonard Leo was trying to stop Steven Calabresi, one of the co founders of Federal Society, from that. Yeah. With Peter Kaiser on that brief saying you cannot give a president immunity, you'll take out a central pillar of our checks and balances. But Leo was on that side. But for Trump, if you're not with him 100% of the time, all the time. You're, you know, you're an enemy. So, you know, there's that part. And I guess, I guess I would just say the other component that's worth thinking about is that it is the case that Roberts has kept a distance from the federal society that the other justices like Thomas and Gorsuch and Kavanaugh have not. But he is still advancing that agenda where you look at things like unitary executive theory, other theories overturning Chevron, his decisions are largely in alignment with that federal society program, even though he himself does not go to their meetings in a really visible way or any visible way, unlike some of his cohorts on the bench.
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Harry Littman
Man, Lisa Gray, so much more I'd love to talk about including some of these individual areas. I thought I wanted to get to voting rights in particular and the three Trump appointees and are there distinctions among them? So maybe you can come back. Let me, let me just since we're nearly out of time, cut to you do have a piece. It's a really comprehensive general critique. And I do think it displays what's been basically reactionary movement that as it's sown its own success, where do they kind of go. But you end with certain solutions for reform. It's very hard right their own independent branch and, you know, it's very hard to sort of boss them around. But there have been, with the increasingly controversial decision, some pretty radical solutions propounded out there. And you talk about, well, the ethics rules, but you talk about term limits, which, as you know, Calabresi has advanced a proposal on jurisdiction stripping, court expansion. The whole voting rights problem with Shelby county is Congress had and had approved it again, but it's a whole nother kettlefish to actually pass a new one. Anyway, you're programmatic somewhat at the end as you think critically about the court. What do you think should come.
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Lisa Graves
First.
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Harry Littman
I guess, including your judgment about political feasibility?
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Lisa Graves
Well, I would say, Harry, I'd love to come back on so yes to that, if you'll have me and have time. But I do think we have to be thinking about these proposals as and and proposals to other policy proposals, because this court is on a path to basically limit Congress's power, Congress's power to repair the damage done to the Voting Rights act, just as it limited Congress's power to repair the damage done by the Citizens United decision.
- [36:10]
Harry Littman
Congress has been so weakened on top. We can talk about why that why that is or should be or what how does that fit with conservative worldview. But, man, oh, man, have they become the, you know, least dangerous branch? It seems, but go ahead. Yeah, yeah.
- [36:24]
Lisa Graves
No, and so. And so I think we have to just, you know, there are a number of reforms that are necessary. I think that, for me, the takeaway is this court will continue to damage our rights until we reform it, until we redress it and push back on it. Right now, it's just pushing forward in a way with no real resistance by Congress and with the embrace of Trump in his own way that it, you know, as it aggrandizes his power, it's also in some ways aggrandizing its own power and cutting.
- [36:52]
Harry Littman
Oh, for sure.
- [36:53]
Lisa Graves
And cutting communities.
- [36:54]
Harry Littman
That's been a big theme. Right.
- [36:55]
Lisa Graves
Yeah.
- [36:55]
Harry Littman
Well, but although, let me ask you, I mean, it does seem to me there's been a series of decisions I've very strongly disagreed with, especially in the shadow docket. But I do think, you know, my overall worldview, maybe it's a little Panglossian, is there's a point coming where push is coming to shove, and it's no longer about, you know, making Republicans stronger. It's literally about arming or disarming Trump.
- [37:25]
Lisa Graves
From.
- [37:27]
Harry Littman
Ending the American experiment. Is that dramatic enough? Do you. Do you have a sense, a hunch, and, you know, it's the $64,000 question, in a way, about whether that distinction is in the minds of the sort of, you know, super majority six, who will be, you know, actually facing. Facing these kinds of determinations.
- [37:55]
Lisa Graves
Well, hope springs eternal. But I do see Roberts as having a real track record of defending expansive presidential power and deferring presidential power, and he may have the votes to do so, and then, you know, try to somehow limit in some way, like he did with Albergo Garcia, you know, that little pushback in due time, you know, not, you know, not the full weight of the law. But, you know, the problem is, is that having unleashed this scenario that we're facing, it's very hard to wind things back to any sense of normalty, normalcy of the president actually following the law. And if he doesn't, you know, then what? And in essence, the court is allowing him to not follow the law in order to, theoretically, some are saying, to prevent him from break free, from breaking the law, from breaking that norm, which is no solution to me. Like, we're in a world of trouble. And that trouble, I think, really, unfortunately has been unleashed by the Roberts court and its view of presidential power.
- [38:58]
Harry Littman
Yeah. Then what was really the question? And when you look at really unfortunate devolutions from democracy of other countries. That kind of legal guys has, you know, been a big part of it. And then it's too, too late. My best guess is it doesn't happen and hope springs eternal. But we'll see. The book is without How Chief Justice Robertson, His Accomplices, Rewrote the Constitution, Dismantled Our Rights. It is by Lisa Graves, Available everywhere.
- [39:33]
Lisa Graves
Yeah, yes.
- [39:35]
Harry Littman
Gotcha. Okay, Lisa, thanks for being with us. And yeah, maybe there's a lot more depths to plum here, so maybe we'll be talking to you again.
- [39:45]
Lisa Graves
Thanks so much Harry. It was an honor and a joy to be on with you.
- [39:51]
Talking Feds Producer/Host
Thank you for tuning in to One on One, a weekly conversation series from Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate.
- [40:07]
Harry Littman
And review view the show.
- [40:08]
Talking Feds Producer/Host
You can also subscribe to us on YouTube, where we are posting full episodes and daily updates on top legal stories. Check us out on substack harrylittman.substack.com where we're posting two or three bulletins a week breaking down the various threats to constitutional norms and the rule of law. And Talking Fez has joined forces with the Constitution. Contrarian I'm a founding contributor to this new media venture, committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape, where legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Rest assured, we're still the same scrappy independent podcast you've come to know and trust just now, linked up with an ambitious and vital project designed for this pivotal moment in our nation's legal and political discourse. Find out more@contrarian.substack.com thanks for tuning in. And don't worry, as long as you need answers, the Feds will keep talking.
- [41:19]
Harry Littman
Talking Feds is produced by Luke Cregan and Katie Upshaw, associate producer Becca Haveian.
- [41:26]
Talking Feds Producer/Host
Sound Engineering by Matt McArdle, Rosie Dawn.
- [41:30]
Harry Littman
Griffin, David Lieberman, Hamsa Mahadrenathan, Emma Maynard and Hallie Necker are our contributing writers. Production assistants by Morgan Chisholm and Akshaj Turbailu. Our editorial interns are Bridget Ryan and Troy Neville.
- [41:48]
Talking Feds Producer/Host
Our music, as ever, is by the amazing Philip Glass. Talking Feds is a production of D.C. i'm Harry Littman.
- [41:58]
Harry Littman
Talk to you later.