Lisa Graves: On The Roberts Court's Power Play

Summary

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The Gist — “Lisa Graves: On The Roberts Court's Power Play”

Host: Mike Pesca
Guest: Lisa Graves, author of Without Precedent: How Chief Justice Roberts and His Accomplices Rewrote the Constitution and Dismantled Our Rights
Release Date: October 17, 2025

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Episode Overview

In this episode, Mike Pesca discusses with constitutional expert and former Senate Judiciary Committee counsel Lisa Graves the legacy, motivations, and actions of Chief Justice John Roberts and the current Supreme Court. The conversation centers on Lisa’s thesis that Roberts has led a concerted effort—along with a larger right-wing legal-political apparatus—to overturn decades of precedent and reshape constitutional law, especially to the benefit of executive power and conservative ideology.

Their nuanced, sometimes contentious discussion covers: the history of Roberts’s appointment, the role of various conservative actors in Supreme Court politics, the Roberts Court’s approach to precedent, democracy, and executive power, and whether or not current events constitute a “constitutional crisis.”

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Key Topics & Discussion Breakdown

1. The “Accomplices” Behind Chief Justice Roberts (07:16–09:08)

• Mike asks: Who are the notable behind-the-scenes actors that helped bring Roberts to power?
• Lisa spotlights C. Boyden Gray:
  • Gray, White House counsel for George H. W. Bush, orchestrated outside pressure and funding to get Roberts confirmed.
  • Gray’s background is rooted in wealth and controversial political ties, going back to his father’s role in the Oppenheimer scandal.
• Lisa Graves (07:38):

  "I was just trying to trace some of those roots out of C. Boyden Gray, who passed away just a couple of years ago, but was instrumental in this court capture that John Roberts symbolizes."

2. Roberts’ Confirmation: Moderate Hopes, Conservative Reality (09:08–12:10)

• Many moderate Democrats supported Roberts, hoping for a “Rehnquist at worst” and even someone more moderate.

• Lisa, who witnessed these events as Senate Judiciary staff, points out that Roberts’ moderate image was strategic and not reflective of his deeply held conservative views.

• Lisa (11:08):

  "That the hope was that he would be a moderate conservative and not as conservative as the man he clerked for... that gave him nearly 10 years to schmooze in DC and build these relationships..."

3. Roberts, Precedent, and the Court’s Conservative Shift (13:05–17:21)

• Pesca and Graves debate whether Roberts’ jurisprudence shifted, or if the context (the court’s composition and society) changed around him.
• Notable early decisions (abortion, guns) signal a desire to overturn precedent soon after his confirmation.
• Lisa:
  • Roberts joined with new appointees (like Alito) to swiftly change major legal doctrines, undermining the Court’s reputation for gradualism.

4. The Roberts Court: New Breed of Conservative Judges (17:21–18:18)

• The GOP long sought reliably conservative justices, frustrated by earlier appointees (like Souter) who sometimes defied party expectations.
• Lisa (17:21):

  "...they were trying to choose a new breed of so-called conservative justices. And Roberts is the first of that new breed."

5. Roberts’ Legitimacy: Umpire or Power Broker? (18:18–22:25)

• Discussion of Roberts’ public pronouncements (e.g., “calling balls and strikes”) versus his deeds.
• Lisa questions whether Roberts truly cares about institutional legitimacy, or if such rhetoric simply serves his ideological agenda.
• Lisa (19:34):

  "What I know is what he writes and what he says. And some of the things he says, I think, that are disproven by the actions that he takes."

6. Trump, Presidential Power, and the Emergency (“Shadow”) Docket (20:15–23:22)

• Lisa details troubling recent Court activity:
  • The immunity decision for Trump, which she calls a sharp break from constitutional principles.
  • Repeated use of the “shadow docket” to overturn lower-court decisions that would restrain Trump’s actions, even when those actions risk “irreparable harm.”
• Lisa (22:38):

  "They're not the final say — we have... I have the final say, right? We have the final say."

7. Constitutional Legitimacy and Accusations of Crisis (25:01–35:28)

• Pesca and Graves disagree about the definition of a “constitutional crisis.”

  • Pesca: Only when there is open defiance of court orders or contradictory rulings with no path to resolution.
  • Graves: The Court’s disregard of law and precedent—with decisions that effectively place presidents above the law—is itself a crisis.
  • Debate over whether the Court’s actions amount to “effectively pardoning” Trump.

• Lisa (25:03):

  "I think this Supreme Court is behaving in illegitimate ways... And I also think that the ethics issues are substantial, and the American people get it."

• Notable Quote (26:38):

  "That's exactly the quote that should be applied to John Roberts. They've cut down the laws and cleared the way for the devil to blow through England..." (referencing A Man for All Seasons)

• Lisa (29:49):

  "We're already in the break glass period... we are in a constitutional crisis."

8. Clash Over Crisis Definitions—How Bad Is It? (32:56–35:28)

• Pesca pushes a narrow definition based on government paralysis or open legal conflict.
• Graves maintains that when the Court “deletes” parts of the Constitution or upends long-settled law, the system is already in peril.
• Lisa (34:45):

  "When you have a court that deletes, in essence, language from the Constitution, takes it upon itself to, in essence, pardon a president... I think that that is a constitutional crisis."

• Pesca (35:25):

  "But they didn’t literally pardon a president."

• Lisa (35:28):

  "They effectively [did]. They effectively said that he cannot be held accountable for the crimes that he was indicted for..."

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Notable Quotes & Memorable Moments

• On Roberts’ confirmation persona:
  "The best thing that ever happened to John Roberts was that Clinton won the White House in 1992. That gave him nearly ten years to schmooze in Washington...to help build up some Democratic support..." —Lisa Graves (11:08)

• On the Supreme Court’s recent history:
  "Roberts is the first of that new effort to... embark on this effort to undo these precedents. And so that's what's really new with Roberts, when Roberts gets on board." —Lisa Graves (17:21)

• On shadow docket emergency orders:
  "...the Roberts court has systematically overturned nearly two dozen temporary restraining orders... that's a one, two punch, basically. I think that reveals that Robert cares more about power than the actual integrity of the court..." —Lisa Graves (21:26)

• On legitimacy vs. institutional loyalty:
  "If the court is seen to have legitimacy, his and his accomplices, his agenda will get through." —Mike Pesca (18:33)

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Timestamps for Key Segments

• 07:16–09:08 — Who “accompanied” Roberts to the top?
• 09:08–12:10 — The nature of Roberts’s confirmation and moderate hopes
• 13:05–17:21 — Roberts’ actual jurisprudence and early Court decisions
• 18:18–22:25 — Roberts on legitimacy: public face vs. reality
• 22:25–25:01 — Immunity decisions & the emergency (shadow) docket
• 25:01–29:49 — Is the Court legitimate? When is “crisis” worth declaring?
• 32:56–35:28 — Definitions and dangers of constitutional crisis

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Tone & Style

Pesca guides the discussion in a provocative, Socratic manner, challenging Graves’ assertions but also making space for her detailed explanations. Graves speaks passionately but precisely, drawing from her deep policy and legislative background. The exchange is lively, at times tense, with clear ideological stakes but a mutual willingness to debate.

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Who Should Listen

This episode is essential for listeners who want to understand the high-stakes debates over the Supreme Court’s legitimacy, the politicization of judicial confirmation, and the implications of recent blockbuster Supreme Court decisions on American democracy.

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Summary prepared by The Gist Podcast Summarizer — for those who want depth, context, and the spirit of the conversation.

Transcript

[Mike Pesca]

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[Lisa Graves]

Jeff Bridges, why are you still living above our garage?

[Mike Pesca]

Well, I dig the mattress and I want to be in a T Mobile commercial like you teach me. So Dana.

[Lisa Graves]

Oh no, I'm not really prepared. I couldn't possibly at T Mobile get the new iPhone 17 Pro on them. It's designed to be the most powerful iPhone yet and has the ultimate pro camera system.

[Mike Pesca]

Wow, impressive. Let me try. T Mobile is the best place to get iPhone 17 Pro because they've got the best network.

[Lisa Graves]

Nice. Jeffrey, you heard them.

[Mike Pesca]

T Mobile is the best place to get the new iPhone 17 Pro on us with eligible trade in in any condition. So what are we having for launch?

[Lisa Graves]

Dud. My work here is done.

[Mike Pesca]

24 monthly bill credit is on experience beyond for well qualified customers plus tax and $35 device connection charge credits ended balance due if you pay off earlier. Cancel Finance Agreement. IPhone 17 Pro 256 gigs $1099.99 and new line minimum $100 plus a month plan with auto pay plus taxes and fees required. Best mobile network in the US based on analysis by Ooklove Speed Test Intelligence data 1H 2025 Visit t mobile.com It's Friday, October 17, 2025 from Peach Fish Productions. It's the gist. I'm Mike Pesca and I heard the news today. Oh boy.

[Lisa Graves]

After racist texts. New York GOP disbands Young Republican group.

[Mike Pesca]

All night they were the Young Republicans. Young Republicans. Young Republicans. J.D. vance defends the Young Republicans.

[Lisa Graves]

Which is.

[Mike Pesca]

What the kids do. Young Republicans. I'm sorry, this is. I'm not really adding value. I'm just telling you I can't get this song out of my head about the Young Republicans. Do you remember President Trump? Do you remember the tariffs China was meant to pay but that changed yesterday. Young Republicans. All right, I'm really going to stop gas chamber jokes from the Young Republicans. We. Well, well, well. Would you meme about Hitler? If so, delete it soon thereafter. And I love the names of these Young Republicans. My people. Samuel Douglas, Peter Guita, Joe Malingo and there was an Annie Katie contained within. I just. I wish I had a morning zoo apparatus so I could do the real parody song Jingle get Annie Katie for her edgy texting. Her telegram leaks the young Republicans again. I'll adm. It's not a value add. So let's get to the real show in the spiel. I shall talk about keeping it with New York politics. There was an old Republican on stage in the first mayoral debate. I will focus on one kind of bizarre Q and A in a pretty bizarre mayoral race. But first, the Supreme Court considers its docket, including taking much of the shadow docket, taking much of the shadow docket and pulling it into the light. I'm joined by Lisa Graves. She is the author of Without Precedent How Chief Justice Roberts and His Accomplices Rewrote the Constitution and Dismantled Our Rights. We talk about that. Her thesis how far to take the worry and panic. You know me classic under panicker not Lisa Graves up next. You ain't no you know Utah, Florida, they recently banned fluoride in the drinking water. We did a segment with Sadie Dingfelder on it. It's it's a live issue. Let's just say it's unsettled science right now. I wouldn't bring you any product that I thought was in any way safe or going to get in the way of health of you and your family. Cove Pure gives you the freedom to choose pure water, a countertop water purifier certified to remove up to 99% of impurities. I will tell you this about COVID Pure. If it's on the counter, you think about all these things. Maybe you worry, maybe you don't. Maybe what you like is good tasting water. And Cove Pure delivers this water that's supposed to taste like what you've always imagined water tasted like. Pure, clean, no aftertaste. So don't wait for the government to sort out pure water. Do it yourself. Head to covpure.com the gist and for a limited time you'll get 200% off your first purchase. That c o v e p u r e.com/the gist to get $200 off covpure.com the gist and now a little bit about one of my favorite products. True Work. Fall weather changes fast. It's hot, it's cold, it's wet, it's windy. Sometimes all in one shift, sometimes within 12 minutes. TrueWerk is there for you. Performance workwear built like it matters because you know what they know and you know that it does matter. It's founded by a true trade professional who was tired and wet and having all that heavy gear weigh him down so to True Work set out to make workwear that keeps pros comfortable, capable and ready for whatever the day throws at them. Every piece is tested on job sites with trade pros, so when conditions change, you're still ready. I enjoy and wear maybe wear a little too often. Two things that aren't job sites but casual events and get compliments on it. My True Work pants. Lot of pockets, a lot of resiliency, and I also have several True Work T shirts and a TrueWerk hoodie goes right over the hood. It fits my face and it's a lovely green flavor that looks a little like maybe something Kermit the Frog might wear if he was backing off his True Frog like nature but at the same time being repellent terrain. That's what my assumption of frogs is. I wear True Work and I'm calling upon you to get to know True Work too. Upgrade your day with workwear built like it matters. Get 15% off your first order@True Work.com with code THE GIST. Spelling's important here. Follow along. T R U E w e r k.com use the code the Gist Lisa Graves new book is called Without Precedent. And let me look away from the camera as I read the subtitle because it is weighty. How Chief Justice Roberts and His Accomplices Rewrote the Constitution and Dismantled Our Rights all right, that says it all. Do we need to have an interview? Yes, indeed we do. Lisa Graves, welcome to the gist.

[Lisa Graves]

Thank you so much for having me on.

[Mike Pesca]

Yeah, glad to have you. So his accomplices, I know from reading the book, you don't just mean the other conservatives on the court, you mean the entire apparatus that got Roberts to the court. Federalist Society Leonard Leo, these are, at least to me, I think, my listeners, we know who they are. But who are some of the more interesting figures who would count as accomplices in Judge Roberts life?

[Lisa Graves]

Well, one of the people that most people don't know about is C. Boyden Gray, and he was the White House counsel for George Herbert Walker Bush. He's the person who helped get Clarence Thomas installed on the court. And by the time John Roberts was nominated to the D.C. circuit and then the Supreme Court, Gray was basically orchestrating an outside pressure machine to try to get Roberts confirmed both to the lower court and the Supreme Court and orchestrating and moving a lot of money in that effort to get him confirmed and also to get Alito confirmed. And Seaboard. And Gray is an heir to a tobacco fortune. But not just that. When I Looked into him more closely. It turns out that his father was the person at the center of the Oppenheimer scandal. In terms of, you know, the movie that just came out a couple of years ago. He was the person who really, his dad was the guy who led that kangaroo court. But before that, he was the man who ordered that Robert E. Lee, a big, huge painting, Robert E. Lee, be hung at West Point at the military academy. And he previously had been involved in the newspaper business. And when his, when he had his nuptials, Seborne Gray's father had his nuptials. It included people in Nazi uniforms in costume in the 1930s. So I was just trying to trace some of those roots out of C. Boyden Gray, who passed away just a couple of years ago, but was instrumental in this court capture that John Roberts symbolizes.

[Mike Pesca]

Right. So C. Boyden Gray, father, Robert E. Lee, Nazi England. Yeah. Complications. C. Boyden himself, son of the man adviser to Roberts, who he assisted in his confirmation. But his confirmation wasn't hard. It was not unanimous. But it wasn't one of these strict party line votes, was it?

[Lisa Graves]

Well, so Boyden Gray was actually working with that group, which was called the Committee for Justice, to try to push Roberts onto the court when Democrats were holding him back when I was the chief counsel for nominations for the Senate Judiciary Committee. But as you point out, when he was confirmed in 2005 to the Supreme Court, it wasn't a straight party line vote or a near straight party line vote the same way that Kavanaugh was. For example, his, his vote had a couple dozen Democrats voting against him and a couple dozen Democrats almost, you know, voting for him, hoping that he would be the man that he promised to be at the confirmation hearings versus the man he turned out to be.

[Mike Pesca]

Well, also he became Chief Justice. Boom, right into the Chief justice role because Rehnquist, who was the chief just had died. That was kind of unusual. But from what I remember, and you remember more because it was your job, I think the hope was among the Democrats, the more moderate Democrats who voted for him or who on principle almost always voted for Supreme Court nominations of the President, their hope was that he would essentially at worst be a Rehnquist figure. And Rehnquist had a lot of, well, was very conservative and had down the line conservative voting record and also came under scrutiny for some sort of some personal questions or questionable decisions in his past. So am I getting that right? You were there. Was it essentially. Well, if the worst we does is. If the worst we do is a new Rehnquist that's not so bad.

[Lisa Graves]

I think in some ways, because he was initially nominated to replace Senator o', Connor, that the hope was that he would be a moderate conservative and not as conservative as the man he. He clerked for. I mean, I used to joke at the time, back in 2002, 2003, that the best thing that ever happened to John Roberts was that Clinton won the White House in 1992. That gave him, you know, nearly 10 years to, to really schmooze in Washington, D.C. and build these relationships to help build up some Democratic support and some group support for his. His objective of getting on the D.C. circuit and then ultimately on the Supreme Court. So I think that other than people like Ted Kennedy and at the time, Chuck Schumer and Dick Durbin, who was not then the leader of the Judiciary Committee, that there were, there were some Democrats that hoped that he would be more like o' Connor than Rehnquist, although he was ultimately nominated for Rehnquist position, as you point out, because Rehnquist died that September right before his. His hearings were scheduled to happen.

[Mike Pesca]

So here's why. I want to go back to the hope of the Democrats or the Democrats who voted for him. And these were Democrats. Let's see. I'm just looking at the list. Robert Byrd voted for him and some of the. Back when you could have Democrats in the Dakotas or Montana, he got their vote. He got Christopher Dodd's vote as a Democrat. Russ Feingold, who you probably know a lot about, very liberal member, Wisconsin senator. But here is my question. They might have wanted Connor, Sandra Day o'. Connor. They got Rehnquist. But even at the time or during his first few years, was it apparent that he wasn't in the mold of a Rehnquist? Did his politics or policies or way of looking at the court change or did the court and society change around him?

[Lisa Graves]

That is a great question, Mike. You know, my, my belief, based on looking deeply at his record, is that he has been pretty unyielding in having these hardcore Reagan revolution beliefs from the start of his career. But my, my belief is that during the nomination process, he tried to convey this image of moderation, this image of impartiality. But quickly after he got on the court, for example, shortly, just, just within two, a few weeks after Alito was confirmed to replace O' Connor in early 2006, they revisited a decision of the Supreme Court on abortion. They didn't overturn it in that particular case, but in that, in that case, they picked up a decision basically that the court had issued just a few years earlier with o' Connor as the deciding vote and revisited it and reversed that precedent on late term abortion, for example. So early on that was happening along with the dramatic change on the issue of gun policy, where the court overturned more than a century of federal precedents involving restrictions on guns to say that the District of Columbia and also Chicago could not bar handguns. And so there were certainly some early signs after he was confirmed of this desire to overturn a substantial body of law, recent and older law, but it really started going into overdrive with Citizens United and the voting rights cases.

[Mike Pesca]

Right. So I don't know that that contradicts what I'm saying, because you're right, Sandra Day o' Connor didn't have the standard Republican or conservative or Federalist society jurisprudence on abortion law all the time, but Rehnquist did. So if my theory is he's essentially a new Rehnquist and what changed was the times around him. The abortion ruling doesn't contradict that, I don't think.

[Lisa Graves]

Well, that's right. And I guess the thing that I would add to, to the conversation about that is that because of the appointment of both Alito and Roberts in that 2005, 2006 term, that did flip the vote count on. That did flip the vote count on abortion. And so it wasn't just a one for one replacement, replacing Rehnquist, replacing o'. Connor. The duo came together, Alito and Roberts came together to basically start overturning some of those key o' Connor decisions.

[Mike Pesca]

True, although not Bush v. Gore, which o' Connor talked about regretting, but without that, Bush wouldn't even be in place to appoint these guys. But this is really interesting and not even where I wanted to take it, but since the conversation's gone there, what had happened is, as I see it, there have always been conservatives on the court. And Alito was a fire breathing one, although a likable one apparently, according to people who knew him, including Sandra Day o'. Connor. And Rehnquist was a very reliable down the line conservative, even, you know, held or very respected figures like Wizard White, certainly a conservative. And what happened was, among other things, but the conservatives went from being a annoying or interesting or intellectually stimulating majority minority to the majority. And then even if nothing else changes, once the people who are raising points that were hard to deal with and using phrases like Argyl Bargle, once those people go from the minority to the majority, it may seem like everything's changed. But all that has changed was the head count?

[Lisa Graves]

Well, it is true. The headcount changed and that was one of the objectives. One of the things that I think people, given the rhetoric around the Supreme Court over these past three decades, I think people don't realize that that the right that as of the present moment, 75% of the Supreme Court justices have been appointed by Republican presidents just through both, just this expanse of time and some manipulation as we all saw in 2016.

[Mike Pesca]

Right. There was definitely that and Jimmy Carter getting no appointees had a role, things like that.

[Lisa Graves]

But the reality is that the Republican Party has appointed the overwhelming majority of justices to the Supreme Court, but they weren't getting what they wanted out of those justices. And the no more suitors mantra symbolizes in some ways their frustration that they had Republican appointees who were following legal precedents that they didn't like. And so they were trying to choose a new breed of so called conservative justices. And Roberts is the first of that new breed. Although to be fair, Thomas, you know, really, you know, set the, set the foundation for that back in, you know, 1991, but 91, 92. But the fact is, is that Roberts is the first of that new effort to not just have a so called conservative on the court or a Republican appointed justice of the court, but to embark on this effort to undo these precedents. And so that's what's really new with Roberts, when Roberts gets on board.

[Mike Pesca]

So Roberts makes some rulings that you point to as destructive and caustic to democracy, Citizens United being so fundamental to how we run campaigns. He's also issued proclamations that the way many people look at it are at least normatively proper for the role of the court and the role of society. Some of the things while getting confirmed. He talked about being an umpire and calling balls and strikes. Many people have rebutted that analogy. And maybe it was an, it certainly was an analogy that served him during the confirmation process. But he has also said there are no Republicans or Democratic judges. And he is even, I would say gone so far. But maybe you would argue, you know, done the de minimis thing of putting out public statements, slightly rebuking some of the Donald Trump statements about his authority. So in your estimation, is he really a person like truly who believes in upholding the reputation and legitimacy of the court, or do you think that these words are a smokescreen? He doesn't really even believe that the court has or needs to have legitimacy. He just more recognizes that if the court is seen to have legitimacy, his and his accomplices, his agenda will get through.

[Lisa Graves]

Well, I'm tempted to affirm what you said, but the, but the fact is that I don't know what he actually believes. What I know is what he writes and what he says. And some of the things he says, I think, that are disproven by the actions that he takes. And so it's a case of following his actions versus his word or his rhetoric or the spin of a very talented oral advocate that he was, who was appointed the Supreme Court. And so the question of the Supreme Court and Donald Trump I think really does reveal maybe the truth that is within your question, or at least my truth within your question, which is that.

[Mike Pesca]

We'Re not having it. No, no, no. We can't having any of that. Know my truth.

[Lisa Graves]

All right. Well, in my view, the truth of the matter is revealed in significant part not just by the voting rights decisions, which I think are damning and revealing. But, but that immunity decision last summer is such a break from our constitutional principles, from the bedrock of the Constitution and the founding of our nation, that no man is above the law, that we don't have kings, that people, that the president doesn't have this very wide reaching immunity from criminal prosecution, when in fact, the Constitution in two places expressly says that the President's duty is to faithfully execute the law. And nothing could be less faithful than breaking the law, particularly criminally. Although, of course, he denied doing so. And then Roberts actions prevented those trials from going forward. But the fact is that when you look at that decision last summer that the New York Times detailed, how he orchestrated that decision, combined with this series of rulings this year, this emergency docket in which the Roberts court has systematically overturned nearly two dozen temporary restraining orders that were based on long standing legal precedents to block, at least temporarily, some of these actions by Donald Trump because of the irreparable harm they would cause while the issues were being resolved, that's a one, two punch, basically. I think that reveals that Robert cares more about power than the actual integrity of the court. Court. And I would say, you know, on the, on the question of this, the statements that Roberts has made this year about Trump, you know, when he said, and I'm going to paraphrase, when he said to Trump, you know, basically stop criticizing the lower court judges because they don't have the final say. This is, I think, an example of the cleverness of Roberts. So on the one hand, that could be read as a rebuke of Donald Trump, and that's how it read on headlines.

[Mike Pesca]

Yeah.

[Lisa Graves]

But it Also could be read as a signal. They are. That's not the final say we have. I have the final say, right? We have the final say.

[Mike Pesca]

Right. Well, that's good. That preserves the institution of the court, doesn't it? Oh, you're saying it's a, you're saying it's a Soto Voce signal. Hey, take it easy, Donald. We'll, we'll. Yeah, we'll help you when it comes to us.

[Lisa Graves]

That's what I'm saying. And then you see 1, 4, 5, 6, 7, 8, 18, 19 cases on Donald Trump's side overturning judges who are appointed by both Democratic and Republican presidents, presidents who wrote detailed opinions for why they issued those TROs. And the court has been aggressively overturning them.

[Mike Pesca]

Right, but these aren't. So explain what these are. These aren't final rulings. These are temporary rulings until, or reversing temporary restraining orders, let's say. And it is consistent with how the court looks at executive power. And it is quite plausible that in many of these cases, though not all, when they do get to the Supreme Court, the administration or the current administration will lose.

[Lisa Graves]

Well, that's true, but when you think about what a temporary restraining order is, what it is is a finding by a lower court judge that there is a substantial likelihood of irreparable harm if this policy is allowed to proceed while the litigation unfolds. And there's a significant likelihood of success based on existing statutes and legal precedents. There's three tests for a tro, but those are the two primary tests for the tro. And so those lower court judges have found that while this substantive matter is being resolved, these actions could be so irreparably damaging that they should be halted while the matter is resolved. And that's just standard law. That's been the law in this country for decades for TROs. And what this court has done in case after case after case, including one just last week, is basically turn back those restraints and allow the actions to go forward, the actions that are causing in the findings of lower court, irreparable harm while the matters are litigated. But as you point out, it's not done yet. It's totally possible, although I would say not super plausible. But it's possible that this court might rule against Trump ultimately on the substance months, if not years, after the harms go forward. So it's possible that in some of those instances, the Supreme Court could rule against Trump. But in essence, it's signaling in a dramatic, repetitive way that it is not going to allow the lower courts to stop Trump while these matters are litigated.

[Mike Pesca]

Do you think the Supreme Court's illegitimate?

[Lisa Graves]

I think this Supreme Court is behaving in illegitimate ways. And I think that it in. In many ways. And I also think that the ethics issues are substantial, and the American people get it. They know that these justices, that Thomas should not be taking these gifts, and they want something done. And Roberts has done nothing besides say, hey, we have a code. And they all said they follow it. That is just another indictment of his leadership, of not just the Supreme Court, but of the federal judiciary.

[Mike Pesca]

And what's the effect of thinking the Supreme Court's illegitimate if they start ruling against Trump?

[Lisa Graves]

That's a hypothetical. But I think we have to take the court as it is. And if it's engaging in decisions that are illegitimate, that are aggrandizing presidential power at the expense of the rights of we the people, then I think we have to be willing to say that those decisions are illegitimate when they are. And I don't think that we should feel that we have to be constrained in the hope that maybe in, you know, one out of a dozen cases, they might actually decide that, you know, the Trump administration or that a particular president has gone too far. I think we have to speak the truth about the court in order to reform it.

[Mike Pesca]

I look at it differently. I look at it, sure, if there is. If it qualifies as illegitimate in a pretty strict definition, you could call it that. You could always use correct labels. But it comes at a gigantic cost. And the cost of using these labels wantonly is that you need to give the devil the benefit of the doubt or the due protections of law. Like they say in A Man For All Seasons.

[Lisa Graves]

Well, I would. I would say that's exactly the quote that should be applied to John Roberts. They've cut down the laws and cleared the way for the devil to blow through England under a man for all seasons. The fact that this court has both issued that unprecedented immunity decision and has aggressively been stopping these lower court rulings, I think it is damning. And I think we are at our peril if we do not speak candidly about what's happening both to the country and through this court, and the effect of these decisions on the meaning of law and freedom in America. You and I are going to have to disagree, agree to disagree on that, I suppose. I don't think I behaved wantonly in any way, but I do think that we have to be able to talk candidly about what this court has done over these last 15 months. And it is an extraordinary rewriting of the rules to benefit Trump if the.

[Mike Pesca]

Rulings, the full rulings, not the temporary restraining order rulings, come down and they are not to Trump's satisfaction. And he says the equivalent of let Mr. Roberts enforce his law. And then there is a hue and cry from the commentariat, no, you can't do this. You must listen to the court because the court has legitimacy. But, but they've already sown the seeds of thinking the court as illegitimate. It will not be to the benefit of anyone except maybe Donald Trump. So that's why my, my theory, my thinking about all this is let's consider the label illegitimate, a very, very, very much in case of dire emergency break glass. And it's not the Dobbs ruling, and it's not even the immunity ruling. And it's something that's so clear, and it's definitely not any of the environmental rulings. These, to me, are just rulings firmly within conservative jurisprudence. It comes at a really high cost. You play with fire. Now, I know what you're going to say, that the Roberts court is the one playing with fire.

[Lisa Graves]

No, no, J.D. vance. Do you? Because J.D. vance already said that that's exactly the approach the administration should take. They should say, go ahead and enforce it. You know, that's already part of the mantra of some of the Project 2025 group that's within the administration in terms of these issues. And it's a damned right.

[Mike Pesca]

So wouldn't you like, wouldn't you like, wouldn't you like a good counter argument?

[Lisa Graves]

No.

[Zohran Mamdani]

Damn.

[Lisa Graves]

You're damned if you do and damned here don't. Because if, if they're not going to. If they're not going. If, if the administration will not follow the law, and this court has already basically paved the way for them to not follow specific statutes, precedents that they don't like, including Humphrey's executor. They're allowing that firing to continue to go forward while that case is still legal precedent in the United States. We're already in the break glass period. Not break glass in a, you know, break the emergency glass. Ring the bell that in fact, we are in a crisis. We are in a constitutional crisis. I understand that you don't agree that we're in a constitutional crisis. I believe strongly that we are. And I believe that we have to talk about it as the constitutional crisis that it is.

[Mike Pesca]

Well, I would define constitutional crisis has no agreed upon definition, but I would define it as contradictory rulings that have no clear answer. I would define it as a system of laws that are in contradiction to its, to themselves, where there is no clear way to come up with an answer. And so far, even though there have been a lot of rulings that you and I both decry, that's not the situation.

[Lisa Graves]

Well, I would disagree because the fact.

[Mike Pesca]

Is, with the definition or where we are.

[Lisa Graves]

No, no, that immunity ruling hits all points of your definition. It is in defiance of the actual Constitution, it's in defiance of long standing precedent, and it's in defiance of even the most recent interpretation of some of the conservatives who voted to acquit Trump at that second impeachment trial. That decision is like a whole out of, you know, it's not just, oh, well, we previously said that you can't, you know, charge someone with any criminal liability for giving a pardon, which I, by the way, would have revisited. I don't think the pardon should be like, the pardon power should be subject to bribery. But let's, let's leave that, like, tiny exception to the side. The reality is, is that this was a decision that was in defiance of long standing core law in the US the constitutional crisis began then. But I would say, you know, in terms of crisis, like, let's set aside that big term, the term that you were trying to, or you were defining. I also think the question of, like, is it an outlier if it's, you know, sort of in contravention to the law or how you describe that, the scenario. But just take a look at the Voting Rights Act. The Voting Rights act is an area where the U.S. constitution expressly says in Section 5 of the 14th Amendment and the last section, the 15Amendment, that Congress has the power to make all necessary laws to implement the protection of this amendment. That is a direct vestment in Congress of the power to protect voting rights. And Congress did and did so in a landmark law that people lost their, some people lost their lives and you know, like all the crises of the preceding nearly 100 years before the Voting Rights act was adopted and Roberts set that aside, Roberts took it upon himself as the Chief Justice Supreme Court, to ignore those findings of Congress, which Congress had a right to make, and well, made those findings in order to implement its constitutional power under Section 5 of the 14th Amendment and the 15th Amendment. And yet this court, this Roberts court, decided they didn't need to follow what Congress found in detail. And I think that was in some ways a beginning of the crisis that has unfolded that culminated in that immunity decision last year.

[Mike Pesca]

Yeah, you're defining constitutional crisis as something like undoing a precedent or contradiction to the Constitution. That's why you say the Trump immunity decision was a constitutional crisis, because you compare it to precedent and what your interpretation of. I tend to agree with you of the Constitution. They interpreted it wrong. That's not what I'm saying a constitutional crisis is. I'm saying a constitutional crisis is the inability of the government to resolve problems in a way within the constitutional system, in a way that's laid out by the Constitution. So an example would be the court clearly says you can impose tariffs. Trump says, yes, I can. Now, then again, if Trump goes and uses, there are some other mechanisms by which he could try to impose the tariffs. Maybe it's not the greatest example. Or birthright citizenship. The court says if you're born here, you're a citizen. Trump says, I'm not listening to that. That's a constitutional crisis.

[Lisa Graves]

Yeah, no, okay, so I would agree with you. That is a customer crisis. That sort of next level where you have complete disregard.

[Mike Pesca]

Well, that's a crisis. I think maybe you're defining a constitutional conundrum.

[Lisa Graves]

Oh, no, I think it's a crisis. I just think that it's.

[Mike Pesca]

No, that's a crisis. But the things you were saying about the Trump immunity.

[Lisa Graves]

This is where we're not going to agree. I reject the notion that these are conundrums, but I appreciate the debate about it. I think that there are multiple levels of the constant crisis that we're in the midst of. And I too fear that next level that you have expressed and as your line in the sand of what you would call a constitute crisis, I fear that that's coming too.

[Mike Pesca]

Do you have a. If you don't have it ready to go, but do you have a sort of succinct definition of what you consider a constitutional crisis? Cuz when I hear people saying we're in one, I think of my definition, I say, no, we're not.

[Lisa Graves]

When you have a court that deletes, in essence, language from the Constitution, takes it upon itself to, in essence, pardon a president, when the court has no pardon power to pardon a president of crimes that the executive branch alleges that he committed, that legislators allege that he committed and said that he could be held accountable in a court of law for I think that that is a conscious crisis. It's not. Doesn't meet your definition of. Is defiance of a court order the only thing that counts as a constitutional crisis? I agree. That is a conscious crisis. I just don't think it's the only version of the crisis that we're in.

[Mike Pesca]

But they didn't literally pardon a president.

[Lisa Graves]

They effectively pardoned him. They effectively said that he cannot be held accountable for the crimes that he was indicted for. And going forward, if he claims that his acts are official acts, that they cannot be used as the basis for an indictment. And they said that the words he uses around the indicted where cannot be indicted.

[Mike Pesca]

Indicted by. Sorry to interrupt. Indicted. Not in Georgia, New York, New York civilly, or even in the documents case. That was afterwards. What crimes were he indicted? Was he.

[Lisa Graves]

Do you mean he was indicted in D.C. in the D.C. circuit. That was an indictment. That was a grand jury indictment against him for his actions around January 6th. That was an indictment. Now an indictment is an allegation. It's not proven. You wait for trial for it. But he was indicted and they said he cannot be prosecuted. Those prosecutions cannot proceed.

[Mike Pesca]

The name of the book is Without How Chief Justice Roberts and His Accomplices Rewrote the Constitution and Dismantled Our Rights. Lisa Graves thank you so much Mike.

[Lisa Graves]

Thanks for having me on. I really appreciate it.

[Mike Pesca]

The gist is brought to you by Progressive Insurance. Fiscally responsible financial geniuses, monetary magicians. These are things people say about drivers who switch their car insurance to Progressive and save hundreds. Visit progressive.com to see if you could save Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states or situations. Morning Zoe. Got donuts.

[Lisa Graves]

Jeff Bridges, why are you still living above our garage?

[Mike Pesca]

Well, I dig the mattress and I want to be in a T mobile commercial like you. Teach me. So Dana.

[Lisa Graves]

Oh no, I'm not really prepared. I couldn't possibly at T Mobile get the new iPhone 17 Pro on them. It's designed to be the most powerful iPhone yet and has the ultimate pro camera system.

[Mike Pesca]

Wow, impressive. Let me try. T Mobile is the best place to get iPhone 17 Pro because they've got the best network.

[Zohran Mamdani]

Nice.

[Lisa Graves]

Jeffrey, you heard them.

[Mike Pesca]

T Mobile is the best place to get the new iPhone 17 Pro on us with eligible trade in in any condition. So what are we having for launch?

[Lisa Graves]

Dude, my work here is done with.

[Mike Pesca]

24 monthly bill credits on experience beyond for well qualified customers plus tax and $35 device connection charge credits ended balance due if you pay off earlier. Cancel Finance agreement. IPhone 17 Pro 256 gigs $1099.99 a new line minimum $100 plus a month plan with auto pay plus taxes and fees required. Best mobile network in the US based on analysis by Ooklove speed test intelligence data 1H 2025 visit t mobile.com and now the spiel. The first New York mayoral debate was last night, and it was won by. Well, we analysts. We're never allowed to tell you who won, not flat out. We say it was a contentious debate. We say tempers flared at times. But I'm going to tell you who won. It was Curtis Sliwa. He's the Republican, and he will be coming in third. But he was less involved and things were easier for him than the other two, the two front runners, really. The front runner, Zoran Mamdani and Andrew Cuomo, because they had so many snipey back and forth that it diminished them both a bit. There wasn't much the two agreed on. That's fine. That's why we have a debate. The big things are well known to the voters. Mom, Donnie wants free buses. Cuomo says they're going to be mobile homeless shelters. We shall see. Cuomo accused the Democratic nominee of not voting for Kamala Harris in the election. Here's how that went. Ready to be a little annoyed? Did he vote for Kamala Harris? Right. We have the ground to cover. No, no, we have no that cover.

[Zohran Mamdani]

That's an incendiary charge. I want to be very.

[Mike Pesca]

You may have a chance to address.

[Lisa Graves]

It, but we do.

[Zohran Mamdani]

I'll be very.

[Mike Pesca]

Issues to get to with New Yorkers.

[Zohran Mamdani]

I'll be very quick.

[Mike Pesca]

You didn't say leave it blank in the common.

[Zohran Mamdani]

I'll be very campaign. I said leave it blank in the president primary because primaries are placed to air dissent. And like many Americans, I was horrified.

[Mike Pesca]

Okay.

[Zohran Mamdani]

Israeli genocide of Palestinians. And if you want to look for me on the ballot, you'll find me as the democrat.

[Mike Pesca]

Mr. Mamdani. Thank you. We have to move on. The interesting thing about that was not the content, such as it was, but the phrase in Cuomo. You heard it there. He stumbled a bit. Mamdani was a lot smoother. He ended with the button, I am the Democratic nominee. Smile. Always with the smile. If you want to hear another bout of Mom, Donnie just being more fluid in his phrasing, there's this issue, legal prostitution. Cuomo said, mamdani's for legalizing prostitution. Mamdani said, how dare you. Cuomo said, there is a bill in your name in Albany legalizing prostitution. The New York Times fact checked that and it wrote. As a member of the state legislature, Mamdani has repeatedly sponsored bills that would remove criminal penalties for adults 18 or older who buy or Sell sex. I looked up the bill, the latest one that he sponsored. Purpose or general idea of bill to repeal statutes that criminalize sex work between consenting adults. Here is how Maudani addressed that.

[Zohran Mamdani]

I want to first be clear that I am not and nor have I ever called for the legalization of prostitution.

[Lisa Graves]

Just a quick clarification. So no legalization. How about decriminalization?

[Zohran Mamdani]

I do not think that we should be prosecuting women who are struggling, who are currently being thrown in jail and then being offered job opportunities. I think we should be actually providing those kinds of opportunities at the first point of interaction.

[Lisa Graves]

Mr. Cuomo, your turn.

[Mike Pesca]

Look, Bill de Blasio, the assemblyman, is a mini me bdb, okay? He's Bill de Blasio Lite. He proposed legalizing prostitution. He didn't get it, and he just told the cops, don't arrest any more prostitutes. There is a bill in Albany that he signed that says the prostitution. That a woman who is a prostitute, that would be decriminalized. That is what the bill says, and that's what he said. If you listen very carefully. So again, the prostitution for the woman who is a prostitute. That's how Cuomo said it. And it's not that fluid. But please, let me just say this and note this. That is the only time you are going to hear an extended statement from a member of the DSA who uses the word prostitution instead of the phrase sex work. You know, Mamdani wants to say sex work. He was raised to say sex work. The people around him all say sex work. His campaign, when asked for comment by the New York Times, used the phrase sex work. But Mamdani knows how to talk to voters. He knows how to win an election. You use the language that all the people understand, and so that's why he's the front runner. He also talked about an issue that he's being attacked over. His relationship with the Jewish community campaign.

[Zohran Mamdani]

Has been the conversations I've had with Jewish New Yorkers. Jewish New Yorkers who've told me about the door that they've had to lock, that they had kept open for 40 years. Jewish New Yorkers who've told me on the M57 about an apartment the speech therapist was trying to sell when a Realtor told her put the Jewish books off the table. Jewish New Yorkers who.

[Mike Pesca]

A Jew who wants to do whatever it takes to get top dollar in the world of real estate. That's the Jew Zohran Mamdani has met and has been quite moved by, also who is not Locking their doors in New York City in 2025. My recommendation is that Jews lock their doors, Episcopals lock their doors. Zoroastrians, Rastafarians, just lock your doors. There was one issue I couldn't quite believe. The moderators thought we should spend any time on parades. Would you boycott any parades? Cuomo and Sliwa said, no, I love parades. I'm going to all the parades. Parades are great.

[Zohran Mamdani]

And then, Mr. Mamdani, there are many parades that I would not be attending because I'd be focusing on the work of leading this city. Which parades? I've already missed a number of those parades because I've been trying to. Okay, I don't have the list of all the parades I've missed.

[Mike Pesca]

Wow, that's a lot.

[Zohran Mamdani]

May.

[Mike Pesca]

I should be going to all parades.

[Lisa Graves]

Let me ask you this. Are there any parades that don't exist that you think should.

[Zohran Mamdani]

Mr. Mamdani, I haven't thought much about parades, to be honest with you, Mr.

[Mike Pesca]

Cuomo, I have not thought. I don't even know what parade doesn't exist, frankly.

[Lisa Graves]

Could be for anything.

[Mike Pesca]

And that, friends, is just a failure of imagination. There's the Jews with open Doors parade. There is the people who cross the street by standing a half a foot off the curb. There's the pizza folders parade. There's the people who moved to New York City because they watched Sex in the City but realized too late there are more of a Charlotte than a Samantha parade. So many imaginary parades. And I am going to predict that Zoran, mom dummy will be having an inaugural parade. I bet he shows up to that one. And that's it for today's show that just was produced by Cory Wara, with Ashley Khan being our production coordinator and Jeff Craig being our weird phrasing. How I'm using today. That's fine. Occupying the role of social media manager. And Michelle Pesca, possessing all the attributes of and inspiring us with her commitment to being the CEO of Peach Fish Productions. Improve. And thanks for listening. Marketing is hard, but I'll tell you a little secret. It doesn't have to be. Let me point something out. You're listening to a podcast right now, and it's great. You love the host. You seek it out and download it. You listen to it while driving, working out, cooking, even going to the bathroom. Podcasts are a pretty close companion. And this is a podcast ad. Did I get your attention? You can reach great listeners like yourself with podcast advertising from Libsyn Ads. Choose from hundreds of top podcasts offering host endorsements or run a pre produced ad like this one across thousands of shows. To reach your target audience in their favorite podcasts with Libsyn Ads, go to Libsyn ads.com that's L I B S Y N ads.com today.