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- [00:01]
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- [01:19]
Al Franken
Hey everybody, we got a great one today. You know, for a change, the great.
- [01:24]
Dahlia Lithwick
Dahlia Lithwick is with us to go through the business before the Supreme Court.
- [01:29]
Al Franken
Now, if you're listening to this podcast, on the day it comes out, it's Mother's Day. And for Mother's Day, we're going up to Portland, Maine to pay tribute to the matriarch of our family, my wife, Frannie's mom, Fran. Franny's a junior and Fran has turned 102 this week. Now some of you have heard Fran's story. Franny was her fourth child. Phyllis, born a little over a year later, was her fifth. Three months later, Fran's husband died in a one car crash. Don Bryson fell asleep at the wheel after doing two shifts at the paper mill and hit a tree. So Fran became a widow with five kids, ages 7, 5, 3, 1 and 3 months. That's Kathy, Carla, Neil, Franny and Phyllis. As you can imagine, it was tough. Fran was a young mom with five kids, so she didn't have a job outside the home. They made it through Social Security, survivor benefits. Sometimes they didn't have enough to eat in the winter. This is Maine. They sometimes ran out of heating oil. When Phyllis was 3, she could go to Catholic nursery school. So Fran got a job at the produce department of the supermarket in the shopping center down the street. So now they had all the fruits and vegetables that they needed. Frannie got a job babysitting when she was 10. I think all the kids worked. When Phyllis went off to first grade, Fran took out a GI loan to go to college. She got four loans, graduated, and became a teacher in a Title 1 elementary school. A Title 1 school is a school that receives government funding to support its population of students in lower income families. All four girls ended up graduating from college on full scholarships. Kathy became a teacher. Carla worked for the phone company. Franny married me and worked in the engineering department of a post production facility. Neil went in the Coast Guard and retired just last year. And Phyllis became a lab technician and Fran retired with a teacher's pension and Social Security. Now they tell you to pull yourself up by your bootstraps, but first you have to have the boots and Social Security survivor benefits and scholarships and GI loans and Social Security made it all possible. So Frannie and I are headed up to Portland to celebrate Mother's day and Fran's 102nd birthday. She can still walk, she's quite deaf and her eyesight ain't so great, but she's all there. So much so that she was just asking me what's going on with the Supreme Court. We've got a great one today, you know, for a change. Dahlia Lithwick is with us, Phil and Fran and all of you on the Supreme Court.
- [04:21]
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- [06:01]
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- [06:07]
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- [07:01]
Dahlia Lithwick
Well Daya, it's great to have you back. This has been. It's been too long.
- [07:05]
Al Franken
It's been a while. You've been rocking my world on television. And then I point and I say to my children, that's my friend. That's my friend.
- [07:14]
Dahlia Lithwick
And they don't believe you.
- [07:16]
Al Franken
Laugh and laugh. Well, your hair is still dialed in such a I would like to do a podcast about your hair on that.
- [07:21]
Dahlia Lithwick
Show you're talking, of course, about the residents on on on Netflix. We wanted to make me look different than I always look. So that's what we did.
- [07:34]
Al Franken
Load bearing hair. It looks very art.
- [07:37]
Dahlia Lithwick
It was. Yes, we I did that on purpose, but thank you for noticing. It's been a pretty rugged start to Trump's second term and a little scary or a lot scary. And it doesn't seem like Congress has pushed back against Trump. It's really the courts that have been pushing back. Right?
- [08:04]
Al Franken
100%. And I was just looking at some data that Bloomberg just put out, Al, where they said there are 200 different courts have acted against Trump in Jesus, the first hundred plus days. I mean, he's losing across the boards. Like, it is not just liberal judges. It is not just like squishy Reagan judges. I mean, it's like Trump judges are voting against him.
- [08:32]
Dahlia Lithwick
It's a large majority of the cases he's losing. Right?
- [08:35]
Al Franken
Yes, yes.
- [08:38]
Dahlia Lithwick
What are the biggest wins you have seen so far?
- [08:42]
Al Franken
I mean, it's hard to say what hasn't been a big win. I think he's just been shellacked on birthright citizenship, which I know we're going to talk about in a minute. But, you know, all of the courts have said the idea of redefining birthright citizenship out of the 14th Amendment is preposterous. He's lost on these deportation cases, you know, these, these guys that they're renditioning to like horrific seacot prison in El Salvador. He keeps losing and losing and losing again.
- [09:13]
Dahlia Lithwick
We'll talk about that, too.
- [09:14]
Al Franken
Yeah, yeah.
- [09:15]
Dahlia Lithwick
Well, let's go right to the birthright citizenship, because I'm a little confused on this. The case that's going forward doesn't seem to be directly on that question of birthright citizenship. Let me read how the amendment starts.
- [09:33]
Al Franken
Yes.
- [09:33]
Dahlia Lithwick
All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. That's the beginning of the amendment. And it's pretty clear.
- [09:48]
Al Franken
Very clear. And there's some, I mean, you and I have had conversations over the years about some provisions of the Constitution that are ambiguous. This is not that. This is completely unambiguous on the just language itself. And we also know what the drafters were trying to do. Right. Which is cure for the sin of Dred Scott. Right. Cure for the sin of enslaved people who were not citizens. And they wanted to make a really broad statement. And we've got all the like notes from the drafters and the debates. This is not an uncertain question. They wanted to have this sort of broadcast, broad, sweeping, inclusive notion of citizenship that was the opposite of the kind of monarchic idea that only certain people are good enough to be citizens. They wanted to do away with that. And so as you're saying, they explicitly wrote that as clearly as they could into the 14th Amendment. And as I said, this has been court after court after court has affirmed this reading. Trump is literally like throwing, throwing spaghetti at a wall and saying, but I think they're all wrong.
- [11:04]
Dahlia Lithwick
What is the Spaghetti, then. And what is the wall? Why would this get them any further along?
- [11:11]
Al Franken
They're arguing this is the most charitable take I can offer. And I'll just note that the person who explained this to me really clearly was Professor Amanda Frost from uva, who was on my podcast last week. She says the most generous construction of the argument they are making is using that language. You just read all persons born or naturalized in the United States and subject to the jurisdiction thereof. She says that they are pulling out the language of subject to the jurisdiction thereof. And she's saying that carves out any children who were born here whose parents are not, you know, citizens or permanent residents. And she's saying that the argument for that is that jurisdiction is political jurisdiction. And that means in their language, again, you have to have complete allegiance to the United States. That's the language they use. You have to have complete allegiance to the United States, which is nowhere in the Constitution. It's nowhere.
- [12:14]
Addi Advertiser
Anywhere.
- [12:15]
Al Franken
But that's what they say. It means that if you have allegiance to some other place, then you are not subject to the jurisdiction thereof, which makes no sense on its face. Right. Because, of course, you are subject to the United States, even if you are not a citizen. If you speed, you get a ticket. If you break into the Kwik E Mart, you get arrested. Like, we know what subject to the jurisdiction means.
- [12:38]
Dahlia Lithwick
So this is of the parents, they're saying. Of the parents, yes. Because a baby doesn't really have any loyalty to allegiance.
- [12:48]
Al Franken
Right.
- [12:49]
Dahlia Lithwick
Or allegiance. I'm sorry, doesn't have allegiance. When are they arguing this?
- [12:53]
Al Franken
That is going to be Thursday of this coming week. And we've got three different cases, three different judges who all found this. We've got three appeals courts that all agreed that this is what Trump is doing is nuts. And so it's going to be a big honking argument with lots of hours of discussion. And as I said, there is this possibility that this. They never get to this constitutional or statutory question because they spend the whole time arguing about whether a single judge in a single jurisdiction can stop a law from going into effect nationwide. And it's very possible. We just have a highly, highly technical argument about whether judges can do what the judges in this case did without ever getting to this big, big constitutional question.
- [13:42]
Dahlia Lithwick
Okay, so it could be boring listening.
- [13:47]
Al Franken
It's always interesting if, for folks who just want to pop popcorn and listen, like listening to the Justice Department trying to get through any of the cases that they are trying to argue with a straight face is truly one of the Only pleasures left in my life. So I don't know if it's going to be boring listening because these guys are just, they're like, just like the Harlem Globetrotter, like crazy, bald, handling, lying, distorting. I come for the lying and the distorting.
- [14:19]
Dahlia Lithwick
Oh, okay. Well, if you have that sophisticated knowledge that I can see why. One of the things I've been curious about is the law firms that Trump went after, the ones that caved and the ones that haven't caved and I guess weren't these law firms basically saying, the first one agreed was Paul Weiss. And that's not a name, that's two people, last name Paul, last name Weiss. They took it. They took the deal. And the deal was that they would do pro bono work of, what was it, 100 million.
- [15:00]
Al Franken
It kept changing. I think with every successive firm that took the deal, the number went up. So I think Weiss took a deal to do 40 million. And then the next one, I don't have the exact numbers in front of me, but like the number basically, like the fee to do free work for the Trump administration kept getting raised with every successive firm that took the knee.
- [15:20]
Dahlia Lithwick
Yeah, okay. So are they feeling silly now? Are they feeling stupid because of all the firms that have held out and look, look like they did the smart thing, or is that not how they see it?
- [15:37]
Al Franken
No, I think. Well, I don't know how they see it. I'm sure they still think that they made a very smart business decision, that they had important clients who didn't want to get crosswise with the administration and that they all get to keep their yachts and they all get to keep their summer homes. And so maybe they're happy with the deal. I will say three things have happened since that series of firms took the deal with the White House. One is, as you say, we've had a bunch of firms fight back. So Perkins Coie fought back, Jenner fought back. These are all very, very fancy white shoe firms. Paul Clement, who was, you may remember, the Solicitor General in the Bush administration, the second Bush administration, he's representing one of the firms. And we're seeing not just that the firms are going to court, but winning in court. So Perkins Coie, that same firm just had a, like, rock em sock em win from District Court Judge Beryl Howell last week in court in D.C. where she essentially, in this 102 page smackdown opinion, just, just lays down in absolutely no question that the administration cannot punish law firms for, you know, the, the lawyers who work for them and who they work for. She says this is just a blatant violation of free speech and it's an abuse of the executive. And she even goes further. She. She kind of snarks that the firms that took the deal, that their clients have real questions about whether they have, like, the kind of zealous representation you should have. So she, she's pretty brutal. And now we're going to see that the other firms that are fighting are going to try to say, hey, can you make that apply to us too? So that's. I, I think winning in court has been huge. I think that the numbers of firms, al. That are signing on in briefs in support of them is ticking up and up and up. So, like in the first weeks when this was happening, when they were going after Scadden and they were going after.
- [17:47]
Dahlia Lithwick
Paul Weiss, they threatened stuff. Yeah, they threatened like, I will want. You won't be able to go into the courtroom. Those kind of things.
- [17:56]
Al Franken
And to. And to revoke security clearances. I mean, it was crazy what they were threatening. They would have made it impossible for all these firms have business with the government. They would have made it impossible for them to. To do their work. And the numbers of other firms who have gone from kind of sitting on the sidelines, hoping that they wouldn't get picked up, they've started signing amicus briefs in big, big, big numbers in support of the law firms. And then the last thing that's happening is that some of those law firms that took the deal are starting to lose business. They're losing lawyers, they're losing young associates, but they're losing clients who are like, you know what? I don't really want a chicken shit lawyer. So I think this has been a big, big win kind of all the way around. And if you think about how kind of small c. Conservative law firms are and how corporate they are and kind of soulless and bottom liney they can be, to have big, big wins in this realm, I think is a big deal.
- [18:54]
Dahlia Lithwick
And really took. Who was the first, Was Perkins Coie the first to say no?
- [19:00]
Al Franken
Yes. Perkins Coie was the first to say they wouldn't take a deal. And they were the first to win in court last week. And I think we're going to see Sussman Godfrey. We're going to see other big firms, I think, who are all, you know, kind of also sort of finding their backbone ensuing. I think we're going to see more and more. And this is, I will say one other thing about this, and you and I have talked about this before, it's actually really interesting to see, like, the generational divide where it's the young associates who are like, I'm not sticking around for this.
- [19:30]
Dahlia Lithwick
Yeah, I saw a young woman who left Scadden. Right.
- [19:34]
Al Franken
Rachel Cohen. Yeah. So I think that we're seeing, like, you know, when we worry about the youngs, like, we're seeing a sort of generation of young lawyers who are saying, I didn't go to law school to do pro bono work.
- [19:48]
Dahlia Lithwick
And we'll see where the star is in law school, who are graduating, where they go.
- [19:55]
Al Franken
Well, that's the other thing we're seeing now. In addition to everything else I just described in terms of headwinds, we're seeing a whole bunch of initiatives from young law students that are saying, we're not even gonna interview or take jobs at the firms that took the deal. And so I think, I mean, listen, you started by saying, we are in grim times, and I don't to over promise anything. But I think that a lot of the stuff that we coded as acquiescence or apathy in the first hundred days I think is now starting to manifest as like, oh, wow, I was completely freaked out. They punched me in the throat and I'm coming out fighting. And I think in a whole bunch of ways, people weren't agreeing to everything. They just didn't know what to do. And I think that the law firms are a really good example of like a trend going. Right.
- [20:48]
Dahlia Lithwick
One thing where the judges have been great, but the administration has been terrible is on El Salvador, on Kilmar Abrego Garcia and the others who went with him, who also didn't get their due process right. Yeah, I know everyone's focused on him, but it seems like everybody, because the judge said, turn your plane around if you're in the air and don't take off if you're not. And they didn't obey.
- [21:20]
Al Franken
Right. And I think that it's really important for the purists and the constitutional wishcasters who want to have like a carbon dating for like, when did the constitutional crisis start? Like, are we there yet? Are we there yet? Are we there yet? I think that was the day, right. When Judge Boasberg in D.C. said, Turn those planes around, and the administration didn't like, that's sort of textbook constitutional crisis when you're flouting a judicial order. And we're now seeing, as you say this is happening time and time and time again. We had a decision from the Supreme Court, a unanimous decision, saying facility return. Yep. And still Nothing.
- [22:01]
Dahlia Lithwick
Now, Stephen Miller said it was 90 the other way.
- [22:05]
Al Franken
Yes. Donald Trump says that his lawyer. This is one of the ways that he, like, manages to sort of dodge and weave is he keeps saying, I'm just doing what my lawyers told me to do. So, like, don't forget he said on TV I could pick up the phone and tell President Bukele to return him tomorrow. Like, he said that. And then he says, oh, but my lawyers tell me. And then he tells us all the lies his lawyers ostensibly tell him. And one of them was that he won that case 9 nothing, that he could use the Alien Enemies act to deport anyone he wants. So there's this kind of, like, sucking noise at the middle of this executive, you know, this unitary executive theory that the president has all the power in the world. But, like, he then says, oh, I would do it if my attorneys told me to. So who's running the show here? And it's worth just flagging that. Judge Boasberg. The same Judge Boasberg who ordered those planes to be turned around in March, had a hearing just last week where he said to Trump's lawyers, like, I don't understand. You've got, like, Kristi Noem saying, we're using all the tools in our toolkit, and one of them is seacot Prison. That means you have, like, constructive custody over the guys there. And the lawyer's like, well, that's not exactly what she means. I mean, I don't want to parse her intention. So, like, this is gets back to, like, when I said to you, watching, like, Justice Department lawyers try to sort of evade responsibility and whack a mole their way out of these orders is, like, both entertaining and terrifying. And this is a subset of cases where we've got a bunch of district court judges who are getting madder and madder and madder at being ignored. Cases that go up to the Supreme Court. And Trump still playing, like, word games with, like, well, you know, I'm not exactly in control of C cop Prison, even though, like, we pay them right to house our detainees.
- [24:05]
Dahlia Lithwick
I keep hearing that they're threatening to hold the administration in contempt. And I'm wondering, what is holding that back?
- [24:14]
Al Franken
Yeah, this is the shrimp fork to my heart. I mean, this question of, you know, what power do the judges really have other than this, like, ephemeral, like, claim to the rule of law, Right? And people keep saying, like, so throw them in jail. Like, it's enough, you know, Judge Boasberg, Judge Zinnis, who's overseeing the Kilmar Abrego, Garcia case, like, stop saying, you know, there will be consequences, young man, and level some consequences. And it raises really hard questions, Al, about, like, really, are they going to put Justice Department lawyers in jail? Are they going to put Stephen Miller in jail?
- [24:49]
Dahlia Lithwick
U.S. marshals are tied to the court, right. And not to the administration.
- [24:54]
Al Franken
The U.S. marshals, at the end of the day, answer to Pam Bondi. That's who they work for. So really query whether sending the marshals after someone is going to work. And I think one of the reasons we're at this, like, what's the physics principle? Like, Zeno's paradox, where you take a step closer and a step closer and you never get there, right at this, Like, Zeno's paradox of constitutional crisis is, I'm not sure any judge wants to be the judge who says, all right, dude, now I am fining you and I'm sending you to prison. And, you know, the. The Justice Department lawyer just shrugs and, like, goes and gets himself, like, a soft serve. Like, I think that there's real fear that this is going to put judicial authority to the test and, like, and it'll fail the test and fail the test. Because at the end of the day, right. I mean, this is this famous apocryphal quote from Justice Marshall. He didn't actually say it, but at the Trail of Tears case, famously, famously, Justice Jackson said, the court has made its opinion, now let them enforce it. Right. They don't have an army. And so I think this is where I try to be mindful to say, in the end of the day, I fear that we are the army for the court. We, the people are going to have to. If they don't abide by a court ruling. And it doesn't have to be a Supreme Court ruling, by the way. They're already in violation of multiple lower court rulings. We have to start to ask ourselves, instead of, like, harrumphing that the judges aren't enforcing it, we have to start to say, like, what does it look like, you know, when we enforce it? And what is, you know, whether that's at the ballot box or whether it's, you know, in protest. But I think that we have to stop imagining that the court has an army, because it doesn't by design. Right.
- [26:44]
Dahlia Lithwick
And a lot of these judges were judges appointed by Republicans. Boasberg, I think, was, wasn't he?
- [26:51]
Al Franken
I think Boasberg was elevated by a Republican. The Barnstormer decision that came out last week. At the end of that, last week, came from a Trump appointee in Texas, Fernando Rodriguez.
- [27:05]
Dahlia Lithwick
That was. They were doing the same damn thing right there, the sea cot. And it was these Venezuelan undocumented immigrants. I mean, don't they deserve due process? Don't they? And they're entitled to that. And they're not having due process is such a violation of that. How do they repeatedly do that?
- [27:27]
Al Franken
Well, so a couple of things. One, you're absolutely right. Due process is pretty protected and enshrined in the Constitution. And one of the things that is really like, should send a chill up people's spines if they're listening, is that now we're hearing Stephen Miller And Trump and J.D. vance say, like, oh, we just can't give due process to everybody. So we'll decide who gets due process. And when one of these cases, that's.
- [27:51]
Dahlia Lithwick
Worse than anything I've ever heard.
- [27:54]
Al Franken
I mean, balls. It's scary as balls. And in one of the cases that went before, the D.C. circuit judge, Patricia Millette said, and they ended up siding with these migrants. But she said, then what's to stop you from sending me to seekot prison? Like, especially as you said in the Abrego Garcia case, the administration admitted they made an error. They said it was an administrative error. They still haven't brought him back. So without.
- [28:22]
Dahlia Lithwick
Well, they fired that guy.
- [28:24]
Al Franken
They fired the guy who said it.
- [28:26]
Dahlia Lithwick
Fire the guy who said, we made a mistake.
- [28:29]
Al Franken
Yeah. You know, there. There's no system to determine whether they're sending people. We still don't have the names of everybody who was sent in those first tranches. And I want to say one other thing that I think is, is. Is even scarier than the no due process thing, which is we keep seeing headlines that call these, like, mass deportations. Right. These are deportations. This isn't a deportation. If you are come from Venezuela and we deport you, we send you back to Venezuela where you walk the streets, right. In Venezuela, a free man. We are sending people to a prison. Right. A maximum security, horrifying conditions in El Salvador. So this is not. These are not deportations. These are renditions, if not kidnappings. And I think we have to use the correct language because Trump keeps talking about it in terms of deporting people.
- [29:20]
Dahlia Lithwick
Ironically, Abrego Garcia was the only one deported because he was from El Salvador and there was an order not to send him there because he fled El Salvador because he was in danger there.
- [29:31]
Al Franken
Right. There was an order from a judge that whatever else you do, don't remove him to El Salvador. That's where they sent him. And I think the other thing that's really worth, like, unpacking on these cases is that the more we know about these guys, the more it's clear most of them have not committed crimes of any sort. And Trump keeps, like, waving around this, like, AI like, you know, gang signal, like, you know, hand that he says means that, you know, they're in gangs. I mean, literally there were people who were being renditioned based on tattoos, based on uncorroborated snitches. Like, the vast bulk of these people have no, no criminal findings against them. And now as we're talking, you and I, right now, they're talking about now sending people to Libya. Right. To even worse, more horrifying places. And I think the idea that they.
- [30:29]
Dahlia Lithwick
Can do this, Libya Chamber of Commerce is going to have an issue with this.
- [30:37]
Al Franken
That'll stop them. I just think that, like, we have to be very mindful of the fact, as Judge Millett said, that the only thing standing between you, Al Franken, being renditioned to a maximum security prison in El Salvador where we pay for you to be held and some other guy is that, you know, a habeas corpus proceeding, due process. Right. The ability to talk to a lawyer. And that's what they're saying. Oh, shruggy emoji. We can't afford to give these people that. So that's, that's chilling.
- [31:10]
Dahlia Lithwick
Okay, we're going to take a quick break. We'll be right back with Dahlia LithW.
- [31:18]
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- [31:47]
Al Franken
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- [32:05]
Dahlia Lithwick
And we're back. Dahlia Lithwick is with us. What else is the court going to see soon?
- [32:12]
Al Franken
It's hard to know just because there are so many of these cases that are piling up at the court and you know, the Trump administration, if they, you remember this from the first time round, if they lose, they run straight to the Supreme Court. There's no like, you know, lollygagging around waiting for the intermediate courts. There's no send it back to the trial court and have a trial. This all gets done on what my friend Steve Vladic calls the shadow docket. Right? So it gets done in the dark of night, often in an unsigned opinion, which is what we saw in those rendition cases. We sometimes don't know what the vote count was like. We don't know who voted for it. And there's no, there's no holding, there's no rule of the case. So this is not how we are supposed to be doing law. But if, as we said at the Beginning, there are 200 cases that have ruled against Donald Trump, at some point some court has to be the court of last resort. And Trump really believes, and this is, I think, the other sort of question that I don't have an answer to, he genuinely believes that the Supreme Court is in his pocket. He genuinely believes that he seated three justices and he owns the justices. And it's worth saying here, they gave him immunity last year. Right. They wouldn't let Colorado take him off the ballot last year. So he's not wrong to think that these guys work for him. And that's the theory we're testing now.
- [33:38]
Dahlia Lithwick
Except there was one seven two decision and it was, none of his appointees voted with him. It was just Alito and Clarence Thomas.
- [33:48]
Al Franken
Right. And this is another one of those late night orders. And the court was so insistent.
- [33:54]
Dahlia Lithwick
This is one for southern Texas.
- [33:56]
Al Franken
Yes. And this is the one where they were, folks will remember seeing the news coverage of them busing these guys from one jurisdiction in Texas to another, from.
- [34:08]
Dahlia Lithwick
Southern Texas to northern Texas, because under northern Texas, they could, they could deport.
- [34:14]
Al Franken
Them to evade judicial review. And this is a case that comes out at one in the morning, right from the Supreme Court. And the really staggering thing about this, and this is just like nerd court baseball, but it's worth flagging. The court always, always, as a matter of courtesy, waits until the dissent is filed. Right. They don't issue an opinion until the dissent comes out. That's just seen as like, it's the equivalent of, you know, to issue an opinion while the dissent is still pending is like peeing on the carpet at the Supreme Court. It's just not done. And yet John Roberts pushed out that order before Justice Alito wrote his dissent and Justice Thomas joined him. And that's the way that we know that inside the Court all is not right, because the fact that they issued that opinion so that these guys would not be removed from the country.
- [35:09]
Dahlia Lithwick
They didn't honor the tradition.
- [35:10]
Al Franken
Correct. And Alito's dissent came out almost a day later. And he was pissed, but he's always pissed, so who cares? But I mean, the fact that they didn't sort of follow the protocol of waiting because they knew this was exigent. They knew these guys were going to get sent away. And to me, if there's a tell anywhere in this story, that's the tell. And as you said, Barrett, Gorsuch and Kavanaugh join in that opinion. So those are not Trump's justices and.
- [35:43]
Dahlia Lithwick
Also the chief justice.
- [35:44]
Al Franken
Right. One of the things, I remember saying this on your show so many times in the last couple of years that I never believed that John Roberts wanted to preside over, like, the smoldering ash heap of American constitutional democracy. Thought there was a line he wouldn't cross. And then he wrote that immunity decision. And I was just like, okay, clearly I'm wrong because he.
- [36:09]
Dahlia Lithwick
I was going to go to that. Yeah, the immunity decision.
- [36:13]
Al Franken
So he is the author of this misfortune in a lot of ways.
- [36:16]
Dahlia Lithwick
And was that a six three.
- [36:18]
Al Franken
That was. Except that Barrett would have done it much narrower. So, like, for some purposes it was 5, 4. For some purposes it was 6 3. She would have massively constrained the immunity that was granted. But I just think as a marker of this is what the majority was willing to give Donald Trump. And by the way, whenever he makes these, like, monarchic claims of, like, his infinite, boundless executive power, he cites that case. They gave him that power and he keeps citing it back at them. And the last thing on this is that John Roberts gave a statement speech on Wednesday night in Buffalo, New York, where he said, like, oh, it's really bad when they threaten. An independent judiciary shouldn't be threatening to impeach judges. Super bad. And it's like, dude, you broke it. You bought it. Like, you gave this to us. And now he's all, like, miffed that Donald Trump is going after, judge by judge, the folks who are ruling against him and saying they should all be impeached. I don't understand what happens in John Roberts head. Honesty, God.
- [37:29]
Dahlia Lithwick
Fetal personhood. I you, you had one of your shows was on, on this topic. I forgot who the guest was.
- [37:36]
Al Franken
Mary Ziegler. The great Mary Ziegler.
- [37:39]
Dahlia Lithwick
Huh. I listened to that and it doesn't sound like that necessarily is going to come up, but maybe it will. She's basically saying that they're. They're going to say, like, this would affect in vitro fertilization, for example, and. And birth control, too.
- [37:57]
Al Franken
Right, right. Fetal personhood is this totally janky, ahistorical, unconstitutional notion that you are a person the minute the egg is conceptualized. Yeah, yeah. And there's no reason to believe that that's true. There were like, little seedlings of that that Justice Alito parked in his Dobbs opinion. And we know that that's where the sort of, like, anti abortion movement has been headed for a long time is that they want to say, like, you know, if you miscarry, we can sort of dig through the records and figure out if you brought that on yourself and criminalize. Right. Because you just killed a living person.
- [38:43]
Dahlia Lithwick
That, that is. That is itself incredibly scary because, you know, my mom had a miscarriage and between me and my brother and, you know, and people have miscarriages, multiple miscarriages.
- [38:59]
Al Franken
Yeah.
- [39:00]
Dahlia Lithwick
And how do you prove that it was a miscarriage?
- [39:03]
Al Franken
And you may recall a case from last year where the cops went to a woman's house and literally, like, removed her toilet, you know, like, went through the contents of her toilet because the state wanted to go after her for.
- [39:18]
Dahlia Lithwick
You know, using it for press stone or something like that, that they thought.
- [39:21]
Al Franken
That she, whatever she did to induce a miscarriage meant that she should be prosecuted. So. So it's unbelievably chilling. And it's the logical next step. It never made sense, Right. For them to say, oh, we love the baby, we love the unborn, but we also love the mother. Right. That's what they've been saying since Roe. We don't want to criminalize, you know, the mother. We don't want to go after the mother. We just want to protect the baby and help the mother make better choice cases. And Dobbs was like the dog that caught the car. Because the minute they could go after the mother, we started seeing case after case after case of either people being investigated for what looked like suspicious miscarriages. We saw women who are. Should be released from prison. Right. But who are not released from prison because the state has determined they're a danger to their baby so they stay in jail. Right. Like, we are seeing case after case that goes after women. And so I think it's like, now that's the moment we're in. And you're exactly right. I think if fetal personhood happens, it doesn't have to happen through a case at the Supreme Court. They could do it by just any Number of measures, they can just sign something into, into law. And certainly Trump has you. You may recall, in his first run for president, he said something about going after doctors and then walked it back. Like, he's very curious about the idea of going. And so I think the idea of fetal personhood, if you have to take it on its own terms, right, like you say, you have to go after miscarriages, you have to go after some forms of birth control, you have to go after ivf, which we already saw a state supreme court do.
- [41:06]
Dahlia Lithwick
Right? That's the Alabama State Supreme Court said that these frozen eggs are human beings, are people.
- [41:15]
Al Franken
And so I think you're exactly right. It's incredibly chilling. And, you know, I think, I guess the only other thing I would say about this is like, it's coming soon to a court near you. And also all of that outrage and fury and anger after Dobbs, we have to remember why we were angry because all of that stuff is now coming true. And we have to sort of be as angry and horrified at the new steps they're taking today as we were then.
- [41:44]
Dahlia Lithwick
I think Trump, though, is against this. I mean, Trump, this is the last thing Trump wants, right? Is conception at conception.
- [41:56]
Al Franken
I think you're right. I think that he knows that there would be just like, seismic blowback for this. But I also think that there is, you know, a quote, unquote, pro life movement that thinks that the, you know, wind is at their back now and this is the next thing that they want. And they feel that, you know, they put him in office and they seated the court and this is the thing that they want. And if a whole bunch of women have to go to jail, so be it. And, and, and one other wrinkle here that's really interesting. The court, you know, had two abortion cases last term. One was mifepristone, and the court was just like, whoops, we don't know what happened there. Right.
- [42:36]
Dahlia Lithwick
So mifepristone right now can be mailed to any state?
- [42:40]
Al Franken
No, there's lots of states that have laws on the books, but we don't know what that means. But this is where that Comstock act, which is this crazy Victorian anti vice act that has been like, defunct. It's considered like a punchline. But this was this, like, creepy Victorian law that said you couldn't put anything right in the mail. And one of the things that we are already, again, seeing happen, including in the lower courts, is that judges are starting to say, including in that lower court, Mife Bristow decision. Oh, that's good law still. And anybody who puts a pill in the mail can be subject to prosecution. And right now we have an abortion provider in New York. Right. They're trying to hail her into court in other states. So I think we're going to see the sort of, like, breathing new life into Comstock and this idea that. And by the way, this was Brett Kavanaugh promised us in Dobbs, like, in no way are we going to keep people from crossing state lines. That would be crazy. We're going to start to see, I think, efforts to sort of criminalize nationally to go after physicians nationally. We've got these crazy, crazy EMTALA cases where doctors are saying, like, I don't want to. I don't want to do these procedures. And the state saying the doctors shouldn't have to do emergency miscarriage care. So I think we're gonna see, I think however it comes at us, it's not gonna be another one of those, like, binary black, white. You know, today all miscarriages are illegal. It's just gonna be some version of this campaign to, like, chill and terrify women and to go after people who are providing them with pills. And at the same time, I always say it's really important to say, like, abortion is, you know, pills are, you know, incredibly efficacious. And we should not terrify listeners, but we should understand what the long term game is.
- [44:41]
Dahlia Lithwick
And the colleges and universities, Harvard being the first one to stand up, where does that go? Is that, Is that something goes to court?
- [44:51]
Al Franken
Yeah, it's already going to. I think there's no question.
- [44:55]
Dahlia Lithwick
I mean, Harvard has assembled a team of conservative lawyers. Right.
- [45:01]
Al Franken
In a sense, Al, it's the perfect bookend to the law firms because it's the same kinds of things, right? It's basic free speech. It's basically like chilling conduct that is protected. And it's very much like the law firms in that. If you think about the fact that Columbia kind of caved, right? There were other schools that kind of caved. And then as soon as Harvard stood up and was like, and no, it turned out that everybody kind of rose up in support of Harvard. So I think, yes, it's going to go to court. Yes. I think there's no chance that Trump can prevail on this stuff, including, like, all these defunding initiatives. But I think that it goes to your, like, bigger point that you started with, which is this idea that, like, I think the first impulse is to do the kind of, like, small, scared thing, right? We'll take the deal. You know, we have bigger things to think about. We have to think about our bottom line. This is a business decision. And then someone comes along and does the courageous thing. And the first thing, what did the Trump administration say? The first thing they were like, oh, that letter wasn't supposed to go out.
- [46:09]
Dahlia Lithwick
Right. Right.
- [46:10]
Al Franken
Oopsie. They're cowards.
- [46:13]
Dahlia Lithwick
Oopsies. Bukele's.
- [46:15]
Al Franken
Yes, Oopsie was Bukele. But I think that they, they will not never, ever. Like, they're such classic bullies that when you push back a little, they're like, oh, we didn't really mean that. So I think it's just really, really such a sort of a. Both Harvard and I think Perkins Coey are just a lesson and, like, don't take the deal. The deal sucks. And Right. We know this about the law firms. He's going to come back in two weeks and ask you to, like, you know, represent crooked cop. Like, you're not going to win this.
- [46:47]
Dahlia Lithwick
Coal. The coal industry or something.
- [46:49]
Al Franken
Yeah, yeah, you're not going to win this. You're going to. You're going to end up doing work that eats your soul. And so I think that, here's what I do think I've learned in the last week is that these are all, like, collective action problems. Right. And when you think, like, I'm the only law firm in America or the only Ivy League law school, you know, being threatened in America, or I'm, you know, the only network, cbs, getting sued in America, then you do. I think it's easy to say, you know, maybe I take, take the deal. And then you see that if you don't, like, others will hopefully join and support. But I think it's just like that classic. We are not good at thinking in terms of collective action because we're so stank and competitive in this country. And so I think what I want to just always say is, like, don't think about this as, like, Harvard stands alone or, you know, Sussman Godfrey stands alone. I think it's that we have to start to organize as though this is a team sport and not a solo sport. And I think every time we have done that, we have seen really important pushback. Every time we have seen somebody stand up and say, you know what? No, we've seen pushback. And at the same time, Jeff Bezos takes the deal and he gets pantsed again. You cannot mollify a narcissist.
- [48:15]
Dahlia Lithwick
That's a good thing to end on. I think you can't mollify a narcissist.
- [48:19]
Al Franken
Can that be next year's mug? I want that mug.
- [48:24]
Dahlia Lithwick
Well, I hope you enjoyed listening. That beautiful music is by Leo Kotke, the great Leo Kotke.
- [48:32]
Al Franken
I want to thank Peter Ogburn for producing this podcast.
- [48:37]
Dahlia Lithwick
We'll talk again next week.
- [48:52]
Thumbtack Advertiser
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- [49:09]
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- [49:34]
Al Franken
Succeed.
- [49:34]
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