Mike Pesca (12:09)

Thanks so much for having me.

Leah Littman (12:11)

So I do listen to Strict Scrutiny a lot and I, I actually my media diet is to go there, then to go to advisory opinions and maybe between the two of them get some synthesis about what you think about recent Supreme Court decisions. But if listeners to my show listen to your show, they wouldn't be surprised to know that there is a lot of criticism of how the court is coming to its conclusions. Not even necessarily the conclus, but what I would like to do, if you would, could you Go back to the conservative justices on the court, from Wizard White to Potter Stewart to Rehnquist, who almost spans these eras, and tell me why those conservative justices were in your opinion, if they were of a different type or a different ilk or doing something quite different from these conservative justices.

Mike Pesca (13:06)

So I actually think of the ones you name, Chief Justice Rehnquist is probably most similar and he figures pretty prominently in the book because I think he is in a lot of ways the precursor to the modern republic. Appointees on the Supreme Court. Justice Rehnquist was one of the dissenters in Roe vs. Wade. He was elevated to the position of Chief justice after he dissented. He is also the author, I think, presumably of the opinion in Bush vs Gore that had stopped the presidential count, influenced Florida and ordered Florida to certify George Bush as the winner of the presidential election. So I think he is in a lot of ways a symbol or stalking horse for what the Republican appointees would become. That being said, you know, he did not do all of the things that the modern Republican appointees are doing, but I think he is quite similar and was a sign of things to come. The earlier nominees that you were identifying are conservative nominees, but I think part of what makes them different is their views are a little bit more heterodox than the modern Republican appointees. Some of what has changed about modern Supreme Court appointments is in part because of partisan polarization, but also because of the focus on the conservative legal movement's judicial selection machine. They've been better able to identify prospective nominees who will more reliably rule in predictable ways.

Unknown (14:35)

Right.

Leah Littman (14:35)

So in the past you might get a Republican appointee, I don't know, David Souter, and he turns out to be a reliable left leaning vote on the Court. And Wizard White was also one of the dissenting votes in Roe v. Wade, but he came to it, you're saying, more honestly and less as a consequence of a concerted effort beforehand to pre craft what his jurisprudence would be.

Mike Pesca (15:03)

Yes, exactly. So in the lead up to Roe, you know, during the period in which Justice White is appointed, it's not like a political party was out there looking for Supreme Court nominees who would say that abortion isn't a constitutional right. But that doesn't describe the judicial selection machine as it has come to exist.

Leah Littman (15:22)

So there are heterodoxies among the Justices now and beyond, not every decision being 6, 3 or sometimes Roberts dissents and 5, 4. But it's still a conservative majority decision. There are plenty of decisions where the scrambling of the Justices wouldn't be predicted by which the party of the President who appointed them. How to explain that within the context of your overall thesis, which is it's a different kind of conservatism, a stamping out of conservatives who will march in lockstep with a pre defined ideology.

Mike Pesca (16:00)

Yeah. So there are some differences among the Republican appointees on federal Indian law. Native American affairs. Justice Neil Gorsuch differs from college.

Leah Littman (16:09)

Gorsuch loves that. That's his one big thing.

Mike Pesca (16:12)

Yeah, that's his jam. And it turns out that Amy Coney Barrett's big jam is whether the President gets to exercise all of the power he wants and then some. So I think there are going to be some issues on which the Republican appointees differ. But my concern is that the media and commentators sometimes overemphasize those, in part because they're just more interesting, you know, from the perspective of a lawyer or a law professor. It's much more fun to talk about cases don't have an ideological breakdown than it is to talk about the cases that do. Because when they do have that breakdown, then partisanship, politics and ideology are more of an explanatory focus than legal analysis might be. As to what explains those differences, I think the reality is the Republican Party selected some issues that were more important than others, and those were the issues on which they focused more of their energy to identify prospective nominees. Those are also the issues that they have focused more on their messaging within the conservative legal movement and that ego ecosystem. So on voting rights, affirmative action, abortion, LGBTQ equality, those bigger ticket issues, as well as the administrative state and the powers of regulatory agencies, those are the issues on which the Republican Party focused and continues to focus. And those are, unsurprisingly, the issues on which there is the ideological breakdown.

Leah Littman (17:32)

I think the media is mostly focused on the biggest issues, which are often the six, three, sometimes five, four issues. And I would say that that Dobbs got a lot more coverage than any of these niche issues on Indian affairs. And I would say the immunity case got a lot more coverage than any of these issues on, you know, more ideologically scrambled decisions.

Mike Pesca (17:54)

I think those two decisions definitely got a lot of attention. But if you look at end of term retrospectives and recaps, you will often see emphasis on, well, they didn't divide 6, 3 or 5, 4 in in all of the cases or a super majority of cases. Instead, look at these interesting breakdowns. And it's in those sort of retrospectives and recaps or even previews that I think the emphasis gets placed on the differences rather than similarities.

Leah Littman (18:21)

If you look at the statistics of what the decisions were, 9 oh is much more common than 5, 4 or 6, 3. So it's not outside the realm of journalistic responsibility to make that point. It's also within the journalistic responsibility to point out the times that the courts didn't march in lockstep ideologically. I think that those aren't just necessarily little asterisks. It's important for the public to know what the Court is really doing and how often they do totally agree. How often there is just one dissent and how often that one dissent, maybe surprisingly to some, is quirky and not just Alito or Thomas sticking up, digging in his heels, but it can be any one of the justices.

Mike Pesca (19:10)

I just think that those numerical and quantitative estimates really skew the perspective on what the Supreme Court is doing. And it's one of the criticisms of the book is that that kind of descriptive way of depicting what the Justices are doing can miss how the breakdown changes on the issues that affect more people's lives, the issues that have more of an ideological bent. And so, for example, if you imagine a Supreme Court term where there's 75 patent cases, one case about whether the president can deport people without due process, another case about whether marriage equality is still a thing, another case about whether women can have health care, another case about whether the Voting Rights act is still constitutional, another case about whether administrative agencies can exist. Who cares if there are 75, nine nothing cases? And I think an opinion breakdown or a term recap that says, look, there are these 75 unanimous cases. Oh, and five, six, three spit splits, splits, without breaking down the substance of those rulings. I think it gives the public a skewed perspective about what the justices are up to.

Leah Littman (20:14)

How do you know you're not engaged in this skewed perspective of seeing the decisions that you firmly disagree with, which, by the way, I probably do too. And I also disagree in some part with the logic and the reasoning that goes into the decisions. But how do you know you're not ascribing more importance to the really bad 63 decisions as opposed to looking at Masterpiece Cake Shop. Right. Which was. Was a 7:2 ruling, or the Wisconsin case where seven of the nine justices ruled that Wisconsin voters couldn't challenge their state's legislative map? There are a whole lot. My point is there are a whole lot of really, really important cases that aren't decided. Just the Republican majority.

Mike Pesca (20:58)

Yeah. So a lot there. A few.

Leah Littman (21:00)

But you think, I mean, so I'm taking. I'm. I'm taking it that you essentially disagree. You think the most important case is.

Mike Pesca (21:07)

I think the most ideologically salient and the most consequential cases. Yes. Tend to break down along ideological lines. A few things. One is part of the criteria for what kinds of cases that I think are important are cases that change the law, cases that have the potential to transform the legal landscape and government institutions. And so the decisions that you're pointing to, Masterpace, Cake Shop and whatnot, those moved the law in smaller directions, but didn't do the kind of radical transformation that the Major questions doctrine, overruling Roe, ending the Voting Rights act and whatnot did.

Leah Littman (21:41)

Now, another thing, I recently heard you on the Bulwark, and you described Neil Gorsuch yelling in court and pounding a fist.

Mike Pesca (21:51)

Sure. And also apparently Neil Gorsuch, who read Pride Puppy and had an utter fucking meltdown. So he looked at this book, which is a puppy.

Unknown (22:00)

Pride Puppy.

Mike Pesca (22:01)

Is that like someone in a pup.

Leah Littman (22:02)

Mask at a Pride company.

Mike Pesca (22:03)

It's a little dog at a pride parade and teaching kids what you will find at a pride parade. And Neil Gorsuch looked at this book. There's a woman in a leather jacket. And he was screaming at the top of his lungs at the Advocate. Why are you letting kids look for bondage and sex workers and bdsm? And the Advocate is like, that's a woman in a leather jacket, Neil. So there's that.

Leah Littman (22:27)

But I went back and I listened to what Gorsuch said. So Pride Puppy was the book that was used for the pre kindergarten curriculum. That's no longer in the curriculum.

Unknown (22:36)

That's the one where they are supposed to look for the leather and things and bondage, things like that.

Leah Littman (22:41)

It's not bondage. It's a woman and a leather sex worker.

Unknown (22:44)

Right?

Leah Littman (22:44)

No. No, it's not correct.

Unknown (22:46)

No, gosh, I. I read it. Drag Queen and drag Quack Queen.

Leah Littman (22:52)

The leather that they're pointing to is a woman in a leather jacket. And one of the words is drag queen and the circle.

Unknown (22:57)

And they're supposed to look for those.

Leah Littman (22:59)

It is an option at the end of the book. And there was no yelling at all.

Mike Pesca (23:04)

And I cannot remember the verb I used, but Neil Gorsuch's tone was. I would describe as irritated. I won't say he's screaming at the top of his lungs. He is agitated and getting irritated with the Advocate in a way that I often rip him for.

Leah Littman (23:23)

Okay. So I didn't even hear him say that. The only reason it matters is the book is a collection and the analysis is a collection of real deep and I think my listeners can understand the depth of your knowledge, but also humor and pop culture, but also hyperbole. And so I wonder, as someone who, since so much of our conversation was about trying to communicate to the public and giving the public a correct impression of what the Supreme Court was doing, I wonder if you worry or fret over using too much hyperbole in describing what the justices are doing such that people could come away with a real misimpression of the actual nature and decisions of the court.

Mike Pesca (24:13)

I don't. I think the picture I have painted of the Supreme Court is describing a fundamental aspect and core way in which the Supreme Court is operating. As we've been talking about, you can always identify exceptions or departures either in the vote breakdown or particular cases as to how they are decided, the differences among the Republican appointees, how you might describe one passage or another or the tone or tenor of a separate writing or a statement at oral argument. But I think that the picture I paint of the Supreme Court captures an important reality that I want people to see in the modern court and honestly, like courts that preceded it as well, because a lot of the book is also identifying origins for what's happening and that's not it.

Leah Littman (25:10)

We'll be back with more of Leah Littman and more challenging questions, including what is the cost of describing the Supreme Court not as wrong, not as poorly reasoned, not even as corrupt, but as illegitimate. We'll get back to that and more with Leah Lippman tomorrow. On the gist True Classics, an amazing brand. I and if you see me on the videos we put forward, most of the time I'm wearing a great, nicely fitted True Classic T shirts. I don't like to wear a white T shirt out fonzieing it up. But with True Classic, it's heavy enough, the fit is fantastic. And that's the white T shirt. When I wear the black T shirt, let me tell you, I'm really stepping out. And I wear two True Classic jeans. They fit great. I've got a dark pair, I've got a light pair. I got a polo shirt. I'm in danger of being a True Classic man through and through. The gear fits, right. It feels amazing. And the price. The price is. The price is very nice. Compare the price to Sometimes a really well fitted T shirt is stupidly expensive, but with True Classic it's smartly affordable. You can feel the difference the moment you throw it on. They're tailored where you want it. They're relaxed where you need it. You don't tug on it. It's not all bunched up. It's clean. It's effortless. It really works. Forget overpriced designer brands. Ditch the disposable fast fashion. It's going to ditch you eventually. True Classic is built for comfort. It's built to last. And it's built to give back. You can grab them at I'll name some retailers. Target, Costco, or how about this? Go to trueclassic.com the gist that helps us the most. And it'll help you because you'll look truly classic. Trueclassic.com the gist and get hooked up today.

Mike Pesca (27:18)

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Leah Littman (27:51)

And now the spiel. Let's call it a spiel. They were hidden in sheds launched from trucks, snuck deep inside the country by secret operatives. They had targets over 2500 miles from the front lines. And the Russian military didn't know what happened. We're talking about $600 drones. And what they did was ensnare the mighty Russian air force in the spider's web. That was the name of the operation which destroyed or significantly degraded a quarter to a third of Russian long range bombing capacity. It's been called the most successful strategic operation in the history of warfare. I immediately thought of the Israeli pager attack, also a strategic operation that was successful but that only killed or injured replaceable people in a proxy militia of a regional power. This one destroyed hundred million dollar aircraft. So I would say the assessment of most successful strategic operation ever is correct. The Telegraph's associate defense editor Dom Nichols.

Unknown (29:02)

Seems to agree that Is this the Pearl harbor moment? Look at Russia's armed forces. The Russian land army has been largely destroyed. The tanks and the infantry, fighting vehicles, the personnel carriers. It's going to take pluck a number five or ten years for the Russian land army to be ready to go again just to physically create the vehicles ready to go again, let alone the personnel. Of course, there's more to an unarmed force than just the army. You've got the air force, you've got the Maritime forces, the navy forces, you've got the submarines, you've got your nuclear forces. Russia's submarine fleet is exceptionally capable. But if you look at what's happened here, if the Russian land army has been broken, broken in Ukraine, if this is now the Russian long range air force capability broken, that's two massive great chunks out of the Russian armed forces as a whole.

Leah Littman (29:51)

And while it's true that a quarter third of Russian long range air force is far from a defeat of the overall Russian war machine, it is also true, as Major General Jonathan Shaw, who's the ex Assistant Chief of the UK Defense Staff, told the BBC, this is a huge psychological turning point for Ukraine.

Unknown (30:11)

A lot of people were saying that Ukraine is finished, that America's pulled the plug, that Trump couldn't give a damn, and that Ukraine is therefore finished. What this is all clearly showing is that that's not the case.

Leah Littman (30:21)

That is right. It is a smack to the nose of Putin and a clear sign that Donald Trump was wrong when he chastised Volodymyr Zelensky in that Oval Office meeting with these words, you're buried there.

Unknown (30:35)

You, your people are dying, you're running low on soldiers, you're running slow on soldiers. It would be a damn good thing. And then you tell us, I don't want to cease fire. I don't want to cease fire. I want to go. And I wanted this. Look, if you could get a ceasefire right now, I tell you, you take it so the bullets stop flying and your men stop getting killed. Of course we want to stop the war, but you're saying you don't want to. See, I said to you, I want to cease guarantee because you'll get a ceasefire faster than any grave. Ask our people about ceasefire, what they think. There wasn't many for you.

Leah Littman (31:08)

What?

Unknown (31:08)

That wasn't with me. That was with a guy named Biden who was not a smart person. That was with Obama. It was your president. Excuse me, that was with Obama. Who gave you sheets. And I gave you javelins. Yes, I gave you the javelins to take out all those tanks. Obama gave you sheets. In fact, the statement is Obama gave sheets and Trump gave javelins. You got to be more thankful because let me tell you, you don't have the cards. With us, you have the cards, but without us, you don't have any cards.

Leah Littman (31:41)

Oh, no. I would say it's more the case that Donald Trump doesn't know the game. This operation took 18 months to pull off. What else do the Ukrainians have up their sleeves? Maybe nothing. Can Putin take that chance? Ukraine hit a key bridge in Crimea today. And Donald Trump says he had a call with Putin who doesn't want to settle, except maybe settle the score, if he even can, which is being recalculated all over the world. It's maybe even being rethought in the White House, though, not knowing the score is off in their calling card. And that's it for today's show. Michelle Peska's cbso. Corey War is the producer. Ashley Khan is co cbso. Kathleen Sykes writes up the old gist list. Oh, you should, you should check it out. It's very educational. Astrid Green does our socials. And Leo Baum, he does a little bit of everything uber GPRU do proo. Thanks for listening, Sam.