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Mike Pesca
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Leah Littman
It's Wednesday, June 4, 2025 from Peach Fish Productions, it's the gist. I'm Mike Pesca and if you know the show, and if not, if you're new, welcome. But if you know the show, what I usually do is I start off with a news item up here and then, then we get right into the interview and then the spiel. I'm reversing things today and I am into very much this news item of Spider's Web. The Ukrainians came in like a spider's web. You know, I sing so badly that it doesn't actually evoke any copyright violations. Sorry Miley Cyrus. So I'm going to be talking about that in the spot normally reserved for the spiel. What I'm doing today is a somewhat lengthy introduction of Leah Littman because over the next two days we will have a two part interview with this co host of the Strict Scrutiny podcast. What I wanted to do was give her arguments stricter scrutiny than they've gotten because I looked it up and Leah Lippman's done by my count, all almost 50 podcasts. And it's not as if no one has asked her a hard question. But I do believe that the, I don't know, 12 questions that I ask her, 10 are the hardest that she gets. Her new book is Lawless how the Supreme Court Runs on Conservative Grievance, Fringe Theories and Bad Vibes. And I heard an interview with Preet Bharaha and on the A1 podcast on NPR and some said, how come when the conservatives do it, it's vibes, but when the Warren Court did it. It was something other than vibes. And that's a fair enough question. She has a fair enough answer. What I want you to hear is what they call the law, joint stipulation of facts, laying some of the predicate. Because I know that she knows, but I want to know that, you know, my contention is that her way of looking at the court, that it's almost purely ideological, which there's a lot of ideology, that it's ideological because rich Republicans wanted to put other Republican thinking justices there. That is true. I mean, Leonard Leo, who apparently Donald Trump has some problems with these days. That's what his whole life effort is. But this is the defining aspect of the court. You've heard me talk about that. I think there is a lot more noise in the data than someone like Lippmann would have, you know. So first of all, we should note that and this comes up in the interview, 9 nothing is the most common kind of, kind of decision on the Supreme Court. SCOTUS blog, now owned by the Dispatch, was for many years an independent entity. And they put together great statistics. And from 2010 to 2021, 43% of cases were decided. 9 Nothing, by far the most common outcome. Now, if you want to talk about which is most of what Lippman's book is about, because her argument is that this is the culmination of a strategy and now we're just going to get an ideological court and a poorly deciding court too. And I press her a little bit on that, though conservative and with decisions that you wouldn't make, does that mean they're poorly decided? She says, yes, I don't know. You'll hear that part of the discussion. But as you know, in the last couple of years, some of the biggest rulings have been exactly those six, three rulings with the three liberals who are powerless to do anything in the dissent saying, no, I think abortion should be kept legal under all circumstances. That's the Dobbs decision. And then of course there was the Trump immunity decision, Trump v. The U.S. also a 6, 3 vote split along ideological lines. However, and this will come up and she says, well, all those or so many of those nine decisions don't really matter. They're procedural. No, there are a lot of nine decisions that are not procedural that actually rebut her idea that it's only ideological, that the court is just reaching for ideology. One was Trump versus Anderson. This was where some states, I think Colorado kicked Donald Trump off the ballot. And the court, all of them came in not ideologically Just looking at the law and said 90 in an important decision because if it had gone another way it would been gigantic. Said no, the people have to decide. There is another decision. The state independent legislature theory which was 6:3 with Thomas, Gorsuch and Alito being the three in the minority who rejected the idea that well, it's kind of a, I think crazy fringe theory. But the details of Moore vs Harper were slightly less crazy than all that. But it's an example of a non ideological decision that was clearly the right decision. Or take and this is a really weird one, There was a 5:4 decision where Harrington vs. Purdue Pharma, the court rejects a bankruptcy plan that would have shielded the Sackler family from civil lawsuits related to the opioid crisis. And the 54 not based on any way that would be predicted by any ideology. Two of the liberals joined the other conservatives and I would say this is very consequential. Billions of dollars were on the line not just for the victims, but for states which would have funded opioid recovery programs. In fact, you can argue that in practical terms, many more people are certain to be affected by that ruling than the Trump immunity ruling, which is not just the Trump immunity ruling, that the presidential immunity ruling that might not even come into play. I'm not, that's not an important ruling. But right now it's in the realm of the hypothetical. And then another one of the rulings that she talks about and we can't talk about everything or otherwise, it's a two hour or three hour interview show. But she does talk a lot about the voting rights cases. And tomorrow in the spiel I'm going to talk about Shelby county versus Holder because I did a lot of research and I don't know if it was correctly decided, but the consequence of that has been pretty small, actually surprisingly small after doing a ton of research into what she considers one of the most consequential decisions. Why? Because it actually had a huge consequence or it confirms the theory that all these 63 conservative opinions are bad opinions that we only got because conservatives were pulling the strings and Leonard Leo was trying to get his people on the Supreme Court. Leonard Leo is, by the way, trying to do that Trump antagonist as of late. Leonard Leo. I, and I do say this to her, I think that there is a line of jurisprudence that just simply agrees more with where the conservatives are on a lot of these issues. I noticed in the book she didn't bring up the affirmative action case maybe because twice as many members of the public agree with the court's decision as disagree. So sort of the inverse of the Dobbs decision. So I do wonder and I ask her this question. How do we know that the ideology play is mostly that of the court's ideology and not Leah Lippman's ideology? Because I think when Leah Littman sees a decision that she doesn't like, sometimes she has excellent arguments. Sometimes she does make a good case that it was poorly decided on the law. But a lot of times I think it's just an argument that she doesn't like and it's a confirmation bias where when it's 6:3, that's an important decision that wouldn't have come about except for some chicanery in the background. I am trying to subject this argument to strict scrutiny. I've seen that she's done dozens, literally dozens of podcasts. I haven't listened to all dozen. I've listened to over a dozen of the podcasts, probably closer to 20. And she's in all of those podcasts. Had to contend with one or two semi challenging questions. Some of the listeners to The NPR program 1A asked her a good question or two to and prepare. Aha. Asked her a good question on the Stay Tuned with Preet podcast. Well, when you say bad vibes with this court, why when the Warren court made its decisions, wasn't that just bad vibes? Fine question, fine answer. But she'll get more scrutiny here. As you will hear from our interview, I wanted to set it up with just some statistics about how the court makes decisions. And this I think, and I hope will orient you successfully as you listen to Mike Pesca. Leah Littman, Part 1 Lawless Father's Day Gifts I don't know, maybe there's a sameness to it. Socks, grills, tools, repeat. This year I wanted to do better. So I quinced it up. Quince makes buying a thoughtful gift easy. They have all the pieces. Dads, I'm one wanna wear organic cotton silk polos. I have to say. Did I know I wanted that? I didn't. And then it touched my skin and my skin thanked myself. It was a little, you know, self dealing, as they say. But they also have European linen beach shorts and awesome pants. And quince is priced 50 to 80% less than what you'd find with similar brands. It is the whole cutting out the middleman, but it really works. They work with top artisans. They don't hit you with the crazy markups. They hit you with the delightful fabrics and these factories that are safe and ethical and responsible. And for Father's Day, I gotta say I got it for me and then I gave it to my dad. The shirts that I'm talking about, the polo shirts, they were amazing. I didn't want to give them up. I had two one for me, one for Dad. I chose the color that I wanted and they're amazing shirts. And I made my dad love me more. I made him. For the dad who deserves better than basic, Quince has you covered. Go to quint.com the gist for free shipping on your order and 365 day returns. That's Q-U-I-N-C-E.com the gist to get free shipping and 365 of davreturnsquints.com the gist this Father's Day helped dad be all he can be with a gift from the Home Depot because he's not just dad, he's the handyman of the house, the plumber in a pinch and the emergency mechanic. Upgrade his gear this Father's Day with The Husky Mechanics 270 piece tool set from the Home Depot. Now on Special Buy for 119A six hundred and ninety five dollar value for every kind of dad. Find the perfect gift this Father's Day at the Home Depot. Leah Lippman is a professor of law at the University of Michigan, a former Supreme Court clerk. I hear her nearly every week on the Strict Scrutiny podcast, a part of the crooked Media Pod Save America suite of podcasts. And if you listen to her there, you're probably not going to be shocked to know that she has some critiques, some Critiques of the U.S. supreme Court, Alito Thomas and the gang. Mostly the gang. They're put in a new book and juxtaposed with her thoughts on the Barbie movie, Game of Thrones and if there's always money in the banana stand, in a new book called Lawless how the Supreme Court Runs on Conservative Grievance, Fringe Theories and Bad Vibes. Leah Lippman, welcome to the Gist.
Mike Pesca
Thanks so much for having me.
Leah Littman
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
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
Right.
Leah Littman
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
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
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
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
Gorsuch loves that. That's his one big thing.
Mike Pesca
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
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
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
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
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
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
Yeah. So a lot there. A few.
Leah Littman
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
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
Now, another thing, I recently heard you on the Bulwark, and you described Neil Gorsuch yelling in court and pounding a fist.
Mike Pesca
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
Pride Puppy.
Mike Pesca
Is that like someone in a pup.
Leah Littman
Mask at a Pride company.
Mike Pesca
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
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
That's the one where they are supposed to look for the leather and things and bondage, things like that.
Leah Littman
It's not bondage. It's a woman and a leather sex worker.
Unknown
Right?
Leah Littman
No. No, it's not correct.
Unknown
No, gosh, I. I read it. Drag Queen and drag Quack Queen.
Leah Littman
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
And they're supposed to look for those.
Leah Littman
It is an option at the end of the book. And there was no yelling at all.
Mike Pesca
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
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
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
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.
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Leah Littman
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
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
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
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
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
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
What?
Unknown
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
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.
The Gist: Episode Summary – "Getting on Leah Litman's Case"
Release Date: June 4, 2025
Host: Mike Pesca
Guest: Leah Litman, Professor of Law at the University of Michigan and co-host of the Strict Scrutiny podcast
Produced by: Peach Fish Productions
In this compelling episode of The Gist, host Mike Pesca engages in an in-depth conversation with Leah Litman, a prominent law professor and critic of the U.S. Supreme Court. The discussion centers around Litman's new book, "Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes," where she explores the increasing ideological polarization within the highest court of the United States.
Leah Litman articulates a critical view of the current Supreme Court, arguing that it has become a predominantly ideological body driven by conservative agendas. She contends that the Court's decisions increasingly reflect premeditated conservative strategies rather than impartial legal reasoning.
Leah Litman [12:11]: "There is a lot of criticism of how the court is coming to its conclusions. Not even necessarily the conclusions, but what I would like to do is could you Go back to the conservative justices on the court... and tell me why those conservative justices were, in your opinion, doing something quite different from these conservative justices today."
Mike Pesca responds by drawing parallels between past conservative justices and the current bench, highlighting figures like Chief Justice Rehnquist as precursors to the modern conservative majority.
Mike Pesca [13:06]: "Justice Rehnquist was one of the dissenters in Roe vs. Wade... he is quite similar and was a sign of things to come."
Litman points out that while historical justices like Rehnquist laid the groundwork, today's conservative appointees are part of a more orchestrated judicial selection process, emphasizing predictability and alignment with Republican agendas.
Leah Litman [14:35]: "In the past, you might get a Republican appointee... but that doesn't describe the judicial selection machine as it has come to exist."
The conversation delves into the statistical breakdown of Supreme Court decisions, with Pesca highlighting that "9-0 decisions" are the most common and often underappreciated in public discourse.
Mike Pesca [16:00]: "Lat xx like SCOTUS blog stats... from 2010 to 2021, 43% of cases were decided 9-0, by far the most common outcome."
Litman challenges the emphasis on high-profile split decisions like Dobbs v. Jackson Women’s Health Organization and Trump v. United States, arguing that these cases receive disproportionate attention compared to the majority of the Court’s unanimous or procedural rulings.
Leah Litman [18:21]: "It's important for the public to know what the Court is really doing and how often they do totally agree."
Both hosts critique how media coverage tends to focus on ideologically charged decisions, potentially skewing public understanding of the Court's overall functioning. Litman emphasizes the need for balanced reporting that also highlights the frequent non-ideological, unanimous decisions.
Leah Litman [19:10]: "There are a whole lot of really, really important cases that aren't decided... Just the Republican majority."
Pesca acknowledges this bias, noting that media retrospectives often highlight the few split decisions without contextualizing them within the broader landscape of unanimous rulings.
Mike Pesca [20:14]: "It gives the public a skewed perspective about what the justices are up to."
A lighter yet telling moment arises when Mike references an incident involving Justice Neil Gorsuch’s reaction to the children’s book "Pride Puppy." This anecdote serves to illustrate the personal dynamics and occasional tensions within the Court.
Mike Pesca [21:07]: "Neil Gorsuch looking at this book... he was screaming at the Advocate."
Litman clarifies the incident, providing context that Gorsuch’s reaction was more about misunderstanding the book's content rather than overt hostility.
Leah Litman [22:44]: "It's a woman in a leather jacket... there was no yelling at all."
As the episode draws to a close, Pesca reassures listeners of the depth of upcoming discussions, promising a continuation of the critical examination of the Supreme Court in the next installment.
Leah Litman [25:10]: "We'll be back with more of Leah Litman and more challenging questions..."
This episode of The Gist offers a thought-provoking exploration of the Supreme Court’s ideological shifts, as analyzed by Leah Litman. Through statistical insights and critical dialogue, Pesca and Litman shed light on the complexities and implications of the Court's evolving dynamics, encouraging listeners to reconsider commonly held perceptions shaped by selective media coverage.
Notable Quotes with Timestamps:
Leah Litman [12:11]: "There is a lot of criticism of how the court is coming to its conclusions..."
Mike Pesca [13:06]: "Justice Rehnquist was one of the dissenters in Roe vs. Wade... he is quite similar and was a sign of things to come."
Mike Pesca [16:00]: "From 2010 to 2021, 43% of cases were decided 9-0, by far the most common outcome."
Leah Litman [18:21]: "It's important for the public to know what the Court is really doing and how often they do totally agree."
Leah Litman [22:44]: "It's a woman in a leather jacket... there was no yelling at all."
For those interested in a deeper dive into the nuances of the Supreme Court and its influence on American jurisprudence, this episode provides a foundational understanding through Leah Litman’s incisive analysis.