← The Opinions
The Opinions
ICE Is Splitting America in Two
00:41:54
The Conversation convenes with Emily Bazelon, David French and Aaron Retica discussing the questions reshaping American politics right now, from immigration enforcement to whether the country can still claim to be “one nation, indivisible.”
Loading summary
Transcript57 lines
- [00:01]
A
Hey, it's Olivia from Ollie. Is it just me or are these wellness trends getting ridiculous? Protein tracking, biohacking. It's too much. Start small with Ollie's daily multivitamin. Just two gummies a day. Help support your immune system, heart and bone health. It's that easy. Less tracking, more doing. You boo. Go to olly.com to learn more. These statements have not been evaluated by the food and Drug Administration. This product is not intended to diagnose, treat, cure or prevent any disease.
- [00:30]
B
Ali.
- [00:32]
A
This is the opinions, a show that brings you a mix of voices from New York Times opinion. You've heard the news. Here's what to make of it.
- [00:45]
B
I'm Aaron Retica, an editor at large for New York Times opinion. I'm here with Emily Bazelon and David French, both of whom teach the occasional class in the law. But. But they work full time here as writers for the New York Times on legal and other political subjects. Hi, guys.
- [01:02]
C
Hey.
- [01:03]
D
Hi, Aaron.
- [01:04]
B
So, David, you're in Nashville right now. What's doing down there?
- [01:08]
D
Well, in Nashville, Aaron, we are prepping. We are prepping for the snow apocalypse. But for some of us, maybe me included, this is a glorious moment. Cause this is the moment we get to turn to our wives and say along with all these other like southern lawyers, accountants, doctors, et cetera, hey, this is why I got a four wheel drive. This is finally, I use it to do something more than just haul groceries from Kroger. So I'm looking forward to it. I'm going to put my Chevy in four wheel drive and I'm going to have a blast with it, Aaron.
- [01:40]
C
So if they don't plow the streets, how does your four wheel drive help you? I don't like, do they have snowplows in Nashville?
- [01:46]
D
You have the four wheel drive so that they don't have to plow the street, that you just go right through it. And in fact, please don't plow, guys. Not right away. I want to get out there and just see what that my Chevy can do.
- [02:03]
B
So I want to cast us back to January 20th of 2025, a year ago in the capital rotunda. And we sort of knew what to expect and yet we. We didn't. Right? And sitting right there, there was Jeff Bezos, there was Elon Musk, there was Mark Zuckerberg, a murderer's row of tech oligarchs. So that suggested that this was all going to go one way. I want to talk about how they have operated power during their first year Machiavelli Famously said that his advice to the prince was that people should either be caressed or crushed. So what pathway have they chosen over the course of this year? Like, what do you see, Emily?
- [02:57]
C
Oh, I mean, I see much more crushing than caressing or much more creating fear than building trust. I think if you were gonna put the actual most powerful people in the Trump administration on that dais or whatever it was, it would be obviously Stephen Miller and then Russell Vogt, who is a real architect of. And then I think also Susie Wiles, who's was playing a more behind the scenes until her Vanity Fair breakout article. But those are like the three obvious officials, I think. And then what's equally interesting to me is to think about who is not exerting power and the effect that that absence is having. And I'm thinking especially of Congress. And then I have a kind of question mark in my head about the Supreme Court. I could kind of argue it both ways. On the one hand, I think the court set the terms for a lot of this administration with its decision granting presidents immunity for most of their official acts. And then on the other hand, they have basically just like gone along with a lot of what the administration is want to do. And so that is a kind of conciliatory, enabling role as opposed to like directing all the action. David, what do you think about that?
- [04:14]
D
Yeah, so I'm going to go with two fantasy analogies. So Game of Thrones and Lord of the Rings way too on brand here.
- [04:24]
B
Two great taste that tastes great together. Yes.
- [04:26]
D
So think of January 20, 2025, is like the coronation at the Red Keep, where you have the king is being crowned and the nobles are gathered there to pay homage to their new liege lord. And so make no mistake, when you had Bez, when you had these billionaires in the room, they were not there as Trump's peers, they were there as Trump's subjects. And so that was not necessarily an array of the power structure of the administration. It was sort of a. Trump has always been a billionaire with pretenses to be seen as sort of the alpha billionaire. And this is the alpha billionaire showing the other billionaires who was boss. So that's January 20, 2025. But you fast forward to right now, and I would even narrow the circle that Emily had smaller. I would say the real power is Stephen Miller primarily. And this gets to the Lord of the Rings analogy, Grima Wormtongue and Theoden, where you had a. You had an old. I know, I can't help it. An old decrepit king who is being influenced by a malignant and malicious voice. But it's a little bit more complicated than that, obviously. And I would say real power is, of course, Stephen Miller at Apex Vote also. I think Rubio has had a surprising amount of influence. But then there's also this other dynamic that always exists with Trump. He's got Stephen Miller, he's got his advisors, and then he's got the last person he talked to. And so it is very well known that Trump is often influenceable in the moment, and then Stephen Miller will come in and backfill and kind of get Trump back on track in Stephen Miller's track. So I really do see that one year apart, he was marking who he lorded over on January 20 25, and in January 20, 2026, we are now much more aware of who the real powers are within his kingdom. And Stephen Miller is at the top of the advisor pecking order.
- [06:38]
B
So let's talk about how power is actually operating. Which brings us to the subject of Greenland. We're taping on Wednesday the 21st. So this morning, the President spoke at Davos pretty feistily, saying that while he wouldn't use force to take Greenland, he wants it right later in the day. And we're only halfway through the day, there was a truth social post saying that actually everything's going to be cool. They're having some negotiations, there's a framework, it's all going to work out. We're not going to resolve that issue. But I want to talk about the way they're doing it. We've also gotten somewhere very weird. Emily, you want to try to describe it. It's a tricky one. But where are we?
- [07:28]
C
I think that Trump uses his mouthpiece like the presidency and what he as his main mechanism of power. Right. So we started the year with the flurry of executive orders, and those have continued. And that's the president just declaring, this is what the law is. Now, you can go ahead and sue me and try to stop me. It's not making a deal in Congress, it's making a declaration, planting a flag, and then seeing if people are going to go along or not, which in the Republican Party, they almost entirely have. And of late, you know, and Venezuela is another example of this. We see him taking the same idea of just, like, edicts and decrees into the international realm, and then it sets off a kind of diplomatic crisis. And, you know, then Trump undermines our allies by like, posting their private signal and text messages to him on social media. And then when he declares that you know, he's reached an agreement, like, somehow it's all gonna be okay. It's right. It's all a drama of wor. He instigates and then tries to see where the dare leads and how other people react.
- [08:40]
B
You also mentioned alliances. And, David, I want you to take this up, too, for, you know, long time. You would say, oh, he's undermining the alliance. He's undermining the allies. That's bad. But of course, they don't see it that way.
- [08:53]
D
Well, they don't appreciate the alliance. You know, it's been fully imbibed within Trump world and maga broadly, that our alliances are actually a drag on us, that we're sort of carrying around people. Imagine you had a basketball team where you had Michael Jordan and then, like, four stiffs on the court, and they're just a liability more than they're an asset. And America will be stronger. America will be more prosperous if it's shed. These alliances that pull us down, that drag us down, their influence, they see their influence as nefarious on American life and culture.
- [09:29]
B
The idea is just that we're suckers.
- [09:30]
D
Oh, totally. Totally.
- [09:32]
B
So, Emily, looking over this year, there's two ways of doing it, right? We can say they had a set of intentions and they did it all, or they're doing a lot of it. Or we could say they had a set of intentions and they're kind of shambolic and they're not actually doing what they wanted to do or said they were gonna do, or at least the effects are not what they wanted them to be. I'm wondering where you come down in that discussion.
- [09:56]
C
I mean, I think it depends on the area of policy. Right. So David was talking about one way to think about the foreign policy goals. Then there's immigration, where we really have seen enforcement step up in the interior of the country in a way that I think exceeded a lot of people's expectations. It's just like such a giant project. Turns out if you're willing to, you know, vastly increase the budget for ICE that and just snatch people up off the street, you can pick up a lot of people and put them in detention and into deportation proceedings. So that's effective with enormous costs. And then I think the tariffs have been kind of all over the place. You know, they've gone up and down. They've been slap dash. We're waiting for the Supreme Court to decide whether they can remain. But until they're gone, they have also, you know, had a real impact in terms of America's place in the world.
- [10:53]
B
The alliances that are against Trump, whether they're domestic or foreign, have a problem, and that is they're about the rule of law, they're about alliances, they're about all these nice things. Right. None of which norms is another one. Right? The norms. And no one wants to hear about any of those things. Right? None of it. But as you guys were saying earlier, the cost of not having it is enormous. And one way in which we've seen that, that, Emily, you were just alluding to is in Minnesota. And I want to talk specifically about what happened to Renee Goode. And we've all been talking about this, but I want to just set it out very clearly. David and I were working on something together, and so I was. It's an occupational hazard of this job. I was watching angles of the videos and the videos over and over again. And something was. Besides the fact that she was being killed, something was really bothering me about, and I could not figure out what it was. And then I realized, okay, she has crossed over a border without realizing it. She thinks she's still living in the regular world, and she has moved into an irregular world. David wrote about this recently. That distinction, which seems to be a growing part of American life, was noted by. And again, I'm not making a direct comparison to Hitler. Like, just. This whole discussion is stupid. Like, this is just a useful way of thinking about this. Right. There's Ernst Frankl, who was a actual practicing lawyer in Nazi Germany until 1938, defending dissidents in court. Right. But meanwhile, he was secretly writing a book called the Dual State. And, David, you want to pick up from there and just explain what it is and why it's relevant to Renee Goode?
- [12:41]
D
Yeah. So essentially, what he's arguing is that one of the things that aided the rise of the Nazi Party was it is not as if the Nazis came into power and then everything changed for everybody. That most Germans were still living under what he calls the normative state. And that would be the normal life and existence that we all enjoy, where you can start a business, you can enter into a contract, you can go to court and enforce your rights against somebody who's violated your rights, it all is normal. But what he said is that along this normative state that was still existing, there was something he called the prerogative state. And the prerogative state was the zone of lawlessness. This was the zone of aggression for the state. And so where the state's interests intersected with the normative state, then the prerogative state would take over, and this would impact only a minority of citizens. So, for example, you know, Jews in Germany, they were subject to the prerogative state. This is where the law didn't really protect them, that they were at the mercy and the whim of the government. They were at the mercy and the whim of sort of the shock troops of the Nazi regime. And if we don't want to use Nazi analogies, I think we can actually use an American analogy that works really well, and that would be the Jim Crow South. In the Jim Crow south, you had a normative state that was enjoyed by white Southerners. They lived in the land of the free and the home of the brave, and they had free speech rights, and they had free association rights, and they had economic opportunity. But then you had a prerogative state that applied to black Americans in the south, and they lived at the mercy and at the whim of the government or even of just their white neighbors could, you know, end their lives at their will and at their whim. And so this is not something that is unique to Germany. This is something that happens in when you have rising authoritarianism, is that the authoritarian segment of society acts with impunity, and it sustains itself in part by making sure that large numbers of people don't experience that, that so long as they live their normal lives and they don't interfere with the government, they get something that looks very routine. And, you know, I used to think, how did Jim Crow happen? Like, how does stuff like that happen? And I don't wonder anymore. I don't wonder anymore, because as soon as you can allow a large segment of the society to live normal lives, even while you oppress others, it takes a lot to rouse the majority to do anything on behalf of the minority.
- [15:20]
C
One thing I think about and wrestle with is a clever move that the Trump administration has made, is that the group of people who are other in our scenario right now are undocumented immigrants to start with, and they don't have the same rights as Americans. Right. Like, it is true that they are subject to deportation. And so I feel like that was the kind of the crack the way in to this dual state. And now we're at the point where it's, yes, it's the undocumented immigrants, and there's a lot of injustice going on in how they are being subject to the force of deportation and detention through ice, but then there's also everybody else who might try to ally with them or help them. And so you Know, Renee Goode is obviously paid the price of her life. Then there are the protesters who are also subject to harassment, sometimes violence, lawbreaking. Then if you take another step back, there are parts of civil society, like universities or law firms that might ordinarily try to defend and protect people in these positions, and they're also getting a very clear message that's supposed to chill all of that kind of speech and activism. Right? So by being so clear that Renee Goode is immediately an enemy of the state in Trump's eyes, as soon as she is, you know, parking her car in some way that gets in ICE's way, Trump talked about the idea she'd been disrespectful, as if that justified her death, which, of course, like, doesn't make any sense. You start with her, then you think of, like, oh, well, that's a chilling effect on other moms or parents or just ordinary Americans who might come out on the streets. And then there are these other moves that take out other players. And it just seems like that is the kind of creep that we're seeing here. But somehow, because it starts with undocumented immigrants, it seems distinct enough from the Nazis or even Jim Crow that a lot of Americans seem to be kind of going along with it. Right?
- [17:27]
D
Yeah, I think that's a great point, Emily. And it sort of shows that it's always so wrong to describe, like, a lot of. I hear a lot of people describe Trump as dumb. I think that's just totally wrong. He's in many ways diabolically shrewd, and one element of his diabolical shrewdness is that he picks on targets that it is hard to mobilize people to defend. So undocumented immigrants, prime example. Here's another one. How many people are going to go in the streets to chant, hands off Harvard, hands off SCAD NARPs, right? Nobody. Nobody is going to do that because he's picking on in these major educational and legal institutions, some institutions that are actually quite not popular, especially with his base. And so he's very good at picking targets. And that's one of the things that makes opposition so difficult. Because then you're immediately, if you say, hey, you know, suspected members of Trendo Agua tda, they deserve due process. How dare you deport people without due process? And then the immediate response is, oh, oh, look at you. You're the best friend of narco terrorists.
- [18:40]
B
This brings us to question of power over. Well, we've been talking about power over everything. Dominion in every way. And that also brings us to the case of Lisa Cook, which the oral argument was heard this morning. Lisa Cook is on the Federal Reserve Board. Trump fired her. And there are all kinds of crazy things about this case, but the court seemed like it was not going to go along with this. So I actually, Emily, want you to answer two questions. One is sort of what you think is going to happen specifically with Lisa Cook and the Federal Reserve, and why the Federal Reserve, among all these agencies, is somehow exempt from the court's other rulings, where it does seem to have been like, yeah, sure, fire whoever you want. Right. But also, this question of, is the court trying to carve out a space for presidential power, a conception of presidential power that is not quite as absolute as what appeared to be the case when they released the immunity decision in 2024?
- [19:45]
C
Yeah, I mean, the court has already said it considers the Fed to be different from other federal agencies. Didn't you know, there's like, one kind of half a sentence about why. But I think the idea that the independence of the Fed is really important for the American and the global economy. The justices get that. It seemed clear after our argument that they were going to leave Lisa Cook in place while this lawsuit about whether Trump has properly fired her for cause based on these allegations of mortgage fraud, which she's never been charged. She says she's had no opportunity to be heard. He says that this true social post was her notice. And the court did not seem to buy the president's arguments. Right. And so in a lot of ways, like argument ended and seemed like, okay, well, rule of law still exists in some way, and the President is not actually the king and doesn't have absolute dominion. I have to say, though, that the arguments that the Solicitor General, John Sauer, was making were so out there to me that I was not entirely reassured by the fact that they were gonna lose. Because he was literally asserting that Trump saying that he planned to fire Lisa Cook on Truth Social, like that was enough. And he could assert any reason that he wanted, and that would count as being for cause, and the courts would have no power to review any of it. That was the position they were taking. And that seemed so extreme to me that hearing it come out of the mouth of the Solicitor General seemed like a problem, even though I don't think the justices are going to accede to it. David, what was your sense? How did you feel coming out of this argument?
- [21:24]
D
I thought, now, I'm not predicting this, but I will say I would not be remotely surprised if this Decision is at 9, 0 or maybe 8, 1.
- [21:34]
C
I don't. Clarence Thomas, I couldn't tell. But anyway, go ahead. Sorry.
- [21:38]
D
90 in the sense that no, Trump doesn't have the ability to fire her at will. But it was very clear to me that the Supreme Court, an overwhelming majority of the Supreme Court, had two propositions in their mind. One was the Fed is different. The Fed isn't like the cfpb. The Fed isn't like the securities and Exchange Commission or the Federal Trade Commission or the others. It's just different. And that number two, because it's different, the President doesn't get to just make it up as he goes along, including by substituting Truth Social posts for proper notice and opportunity to be heard when you're going to fire somebody who can only be fired for cause. And so I think that that was. I could almost count to eight or nine for that position. Leaving aside Thomas, I agree, Emily, that he was more opaque. But there is another thing that was very interesting and I don't think enough people have noticed this. The advocate for Lisa Cook was Paul Clement. Okay. And this is significant because what you had was a fight between sort of the archetype of MAGA legal philosophy and the Solicitor General. Probably the best advocate for MAGA legal philosophy in America is the current Solicitor General, John Sauer, against not just any conservative attorney, but a guy who would be like at the Council of Elrond of originalism. I mean, this is a guy who is sort of the archetype of the conservative attorney. And so you had Magalaw versus classical conservatism, quite frankly, in that fight. And so what Clement was able to do was to really, to ping all of Justice Roberts and Barrett's and Kavanaugh and Gorsuch's, all of their originalism, you know, like, set off all of their originalism bells, right? And he was able to do that fluently. And it was fascinating to listen to the argument because as it went on, I felt like Clement was getting so much more confident. It was like, oh, I win through door number one, but if you don't like door number one, door number two is fabulous as well. I win through door number two. And rarely have I left an oral argument or listened to an oral argument and emerged from it thinking that the outcome was more clear than this one. Now watch that. Be famous. You know, it's always famous last words that you watch an oral argument and you're pretty convinced it could go one way and it goes the other. But I would be stunned, stunned let's.
- [24:09]
B
Talk about this as the exception that proves the rule, though, in a way. Right. If the Federal Reserve is the part of the government that he can't mess with, nonetheless, in almost every other way. Right. They have licensed him to do almost anything he wants to do. And as Emily was saying, their imaginative idea of what the presidency should be appears to exceed even the bounds of the unitary executive theory that they used to love. But I want to actually use this to turn to. We asked the last time you guys were together online, we asked readers to send in their questions. And as always, there were a million of them, and we can only use a few. But there's one right on point here, Joe Kennedy from Mercer Island, Washington. He wrote in to ask about specifically about the immunity decision in Trump v. United States. And he asked, does this decision give Trump a get out of jail free card? Can he be held accountable for any of the things he's doing if he calls them official acts? Right. And the reason I'm connecting it to the Federal Reserve thing is like, yeah, okay, so fine, the Lisa Cook mortgage case that preceded her being on the board in the first place, like, okay, you knocked that out. But like, have you actually done anything like that should be something that's not even coming before the court. Right. That shouldn't be. And there you are having a serious Supreme Court discussion about an absolute absurdity. Right. So maybe they won even if they lose nine, nothing but what? Emily, why don't you go first? Like the immunity ruling and everything else that has happened with the Supreme Court, where are they holding him back? Where is he liable? What is their conception? And do you see any sense of alarm on their part about where he's taking the country?
- [26:07]
C
I do think that the immunity decision set the table. It emboldened Trump. He talks about it. The Solicitor General's office cites it a lot in these kind of expansive ways in claiming more and more power for the President. So I do think it's like, underpinning part of what we're seeing. And I also think you're right that they have, you know, thrown up a bunch of like, really unlikely Hail Mary's this case, which would totally undermine the independence of the Fed. Then there's the challenge to birthright citizenship. There it is sitting there in the 14th Amendment, in the Constitution, and they're claiming, no, that's not the law.
- [26:46]
B
That's another one where they. They win just by raising it.
- [26:50]
C
Exactly. I think generally, though, Aaron, I mean, I would agree with you that, you know, the conservatives who Dominate the court right now had an expansive theory of executive power that allows for a lot of firing of agency leaders. Right. Board members of the Federal Trade Commission, et cetera, et cetera. And I think that that challenge to how our agencies have operated in this kind of quasi independent way is going to succeed, and it's gonna really shift power toward the President. And in a sense, and I feel like I've learned this from writing back and forth with David about it, this is like a longstanding conservative principle, and it would be surprising for the conservative justices to walk away from it. And yet the timing of it means that the person who they are giving much more power to, the actual president office, is Donald Trump. Maybe for some of them, that's like, kind of inconvenient. You could imagine that Chief Justice Roberts would prefer that a more honorable president was actually in office while he was doing this. But when people who've been eyeing a goal for a long time, whether it's, you know, jurisprudence or legislation, get a chance to enact it, it's hard for them to resist. And so I feel like that is part of the dynamic here. I wonder, David, how you think about that. Part of how our legal landscape is changing.
- [28:13]
D
Yeah, I think it's changing with more presidential control over a diminished executive branch. So if you look at the totality of Supreme Court authority and this could, this take, I fully acknowledge, could age very poorly depending on how the tariff case comes out, how the Lisa Cook case comes out, how they.
- [28:31]
B
You don't have to worry too much about that.
- [28:33]
D
Right.
- [28:33]
B
It's not like people, people are going to like, go back and rewind two years from now to see what you said today. Just go for it.
- [28:39]
D
But by, by June, by the end of June, we'll know a whole lot more. So that's when the Supreme Court issues all the opinions for this term. But here's the way I would phrase it. What the unitary executive theory says is the President has control over the executive branch. However, the original separation of powers conception would say that the President doesn't have control over Congress. And there's even limits as to what Congress can delegate to the President. And so, for example, tariffs, that is a enumerated Article 1 authority of Congress. Can Congress just delegate that to the President without using even those explicit terms to grant worldwide tariff taxing authority? I think the answer to that is going to be no. Similarly, when you're talking about the Fed, the Court has determined so far, at least in dicta, that the Fed is different from the sec and the ftc. And in that circumstance, the president doesn't have that unfettered authority. Birthright citizenship. You have an actual constitutional provision and a statutory provision enacting birthright citizenship as we understand it. I think they're going to find that the president doesn't have the unilateral ability to change all that by executive decree. So I would say that the sort of originalist conception in which a majority of the majority is operating under is that the president, yes, should have more control over the executive branch. However, the executive branch should have less control over the American government. And I think that that is where they're heading. And so what that will mean is Trump is going to, at the end of the day, have more ability to hire and fire, say, the head of any given agency or independent agency other than the Fed. But those agencies are going to have less power to do what Trump wants them to do. Now, I think that's going to be the ultimate resolution by June 30th of 2026 of this year. If it is not, then I think we're in a hyper dangerous moment, which we're already in a dangerous moment. But if the Supreme Court at the end of the day says the President has extraordinary authority over an extraordinary powerful, even more powerful than we knew, executive branch, that's when you're disrupting the very Republican form of government that we're supposed to have.
- [30:53]
B
Okay, so that's a perfect transition, actually, to the final two reader questions that I'm going to combine them into one, because we're going to run out of time. But Paul Gutterman in Bethesda, Maryland, so near where all this is happening, and he wrote, the wheels of justice grind slowly, but the Trump administration breaks laws at the speed of light. Isn't this a recipe for the end result, that the law never catches up with the wrongdoing? And let me add to that what Stephanie Wolkin in White Bear Lake, Minnesota, wrote. She wrote that she was deeply concerned about the rule of law with regard to the separation of powers, that congressional Republicans are incapable of acting independently. And the result is that there are no checks and balances. Right. But we're not getting the. What's the famous Madison line? Ambition will counteract ambition. Right? It shouldn't matter that they're all the same party. The Supreme Court's acting in the same way. How do we take back our country when the rule of law has been systematically destroyed? So I'm not going to ask you to tell the future, but I am going to ask you with so many of the elements that are supposed to support the rule of law weakened, how do we support the rule of law?
- [32:04]
C
Well, one way to think about both of those questions is, can courts save American democracy? What is their actual role here? And I think what we're seeing is they can't do it on their own. Right. So, I mean, I would argue that the lower courts have been really pretty stalwart since Trump took office in standing up for the rule of law, in pushing back, in calling the president's bluff on a number of fronts, I think the Supreme Court has been far less effective, whatever its frustration with the emergency docket. Until the decision about the National Guard in Chicago, Trump, the administration had an almost unbroken string of victories on the emergency docket. So we've seen the Supreme Court exceedingly in a number of domains, and, yes, they probably are gonna push back on in some of the most extreme cases. But I agree with you, Aaron, that we're still gonna end up with expanded presidential power for this particular president. And I think the other insight of the questions that you asked is that when the political system is not operating in a way that there are obvious consequences for someone who is abusing power, then it's really hard for the legal system to fix the whole thing.
- [33:18]
B
Right. It's not designed for that at all.
- [33:20]
D
Yeah.
- [33:21]
C
To me, the most important question is, what happens in the upcoming elections? Are they free and fair? Are Americans taking in and absorbing the threats and risks that I think that, you know, you and David are laying out there in a way that affects how they vote? What message do they send to the Republican Party, which has been, you know, so much behind Trump, and then eventually, you know, what message that they send in 2028 when they're electing the next president? And it's in some ways because, you know, the polls have sagged, Right? Trump is not popular, but he's not, like, in the basement. And also, the stock market, while it seems shaky with this latest, you know, threat to Greenland, has not totally tanked either. The indicators are not blinking red in a way that if you are a politician other than Trump, you can conclude that you obviously should, like, run as far as you can from him. And it's those political and market indicators that I think, in the end, matter as much or more than the courts, even though I don't want to let the courts off the hook.
- [34:27]
D
David, you know, I think of it like this. Think of the courts as a rear guard to a retreating army. And that rear guard can either be very effective or somewhat as an army of orcs. Yeah. A retreating army of Congress. Right. And so you have. And that rear guard can be really good or it can be not so good. But the bottom line is the rear guard isn't going to win the war. And one of the fundamental problems is Article 1, which spells out legislative powers. Is Article 1 for a reason. It is supposed to be whatever term you want, first among equals. It is supposed to be the alpha branch of government. And now it's not the beta branch, it's the last branch. I mean, it is the last branch. It's the least powerful branch of government. And so the entire system, the entire structure is warped right now. And so until that dynamic is fixed, and it can only ultimately be fixed by the voters, the voters are the only ones who can ultimately fix it. Until that dynamic is fixed, the courts are going to be a delaying action at best, and then we'll end up fighting ferociously over whether they're delaying Trump more or less. But they can only ultimately delay him. That's all the courts can do. They cannot save us.
- [35:46]
B
Can I just say that if you're from New York City, the idea that you would be wanting, however much you wanted executive power to expand, that you would be depositing it in the bank of Donald Trump? Just to keep my metaphor going there is so preposterous. Like, my mother died right after Obama was inaugurated, and I always think about telling her, like, guess what? Guess who came next? Like, it would be the most unimaginable thing. Right. Certainly to, I think, to a lot of people, but certainly to people who were living through the Trump ascendance here and that these constitutional issues are being played out through this person in this way. Like, while we're living it, it's very hard for us to recognize how completely insane it is. Right. But it is actually, in fact, totally not. I want to talk to you guys. You often talk about TV shows that you like when we're doing the online conversations. But I wanted to ask you about lawyers and novels or long non fiction books about the law that you think really capture what it's like to be a legal thinker, a lawyer, a practitioner. Who wants to go first?
- [37:02]
C
David, you go first with Grace.
- [37:06]
D
She says, you know, it's funny. Let me cheat a little bit. Let me cheat a little bit because, well, like lawyers. Yeah, like we'll do. I'm going to use exploit every loophole to change the question. So I have been thinking a lot about the civil rights movement over the course of the last several years. Because I feel like as we are, as you as people were in the civil rights movement, you're living through a moment in time where your grandchildren will be looking and asking, what did you do then? What was it like then? And what did you do then? And I've. You know, I think we often think a lot about the heroes of the civil rights movement, like a Martin Luther King, and how they had a such an incredible political and cultural influence. But I also think we need to really be looking right now at the lawyers of the civil rights movement and the way in which they very courageously and also shrewdly stood up for people who are among the most marginalized in the country in legal systems that were far less functional than ours. And we raised our kids in a town in Tennessee called Columbia, Tennessee. It's a relatively small town south, a small town about an hour south of Nashville. And Thurgood Marshall is part of the story of Columbia, Tennessee, because he came there at this, some of the darkest times in the civil rights movement to represent some embattled defendants in that little town. And what is so compelling to me about that narrative and about that story is he's willing to go anywhere, into any place with any degree of danger to stand for justice. And, you know, that's when you think about a lawyer, you cannot think about a good lawyer without thinking of both intellect and moral courage. And so when I'm thinking about the law and when I'm looking for the people I'm going to look up to in the law, I'm not just looking at intellect. I'm looking at moral courage. And when I want a story of moral courage in American law, you know, you can go fiction to kill a mockingbird, but you don't need fiction. You've got reality. With the lawyers of the civil rights movement. And so I think it's their story. And again, we're not even there. We're not there. We're not in the kind of danger that they were. Right. And so when there's less danger, can the legal profession show at least as much courage? And I think the answer to that question may set the future course of the country.
- [39:44]
C
Well, that gives lawyers and courts a lot of power. It reminds me of a nonfiction book that I really love called Devil in the Grove. The subtitle is Thurgood Marshall, the Groveland Boys and the dawn of a New America.
- [39:57]
B
So that's a Florida case, right?
- [39:59]
C
Yeah, and it's from 1949. So it's like a kind of precursor to the civil rights movement. I was thinking about a character who looms very large for me. Different era entirely. Portia from Merchant of Venice, who, you know, deploys all the tactics of clever lawyers to try to change what we think of now as the quality of mercy in the courts. And her Shakespearean time, somehow that was like a comforting, reassuring sort of trial to go back to. I mean, it's a time obviously of deep prejudice without a lot of the safeguards of the rule of law that we think of now. But she was able to achieve a better result by making legal arguments. So maybe I'm trying to be with you in some ways, David, in going back to a kind of touchstone where we can imagine lawyers having a good effect.
- [40:55]
B
Okay. Wow. The quality of mercy is not strained. Thank you both so, so much. You know, we're all uneasy, but you made it easy. So thank you very much.
- [41:09]
D
Thanks so much, Erin.
- [41:10]
C
Thanks. Fun.
- [41:33]
A
If you like this show, follow it on YouTube, Spotify or Apple. The opinions is produced by Derek Arthur, Vishaka Darba and Gillian Weinberger. It's edited by Kari Pitkin and Alison Bruzick. Mixing by Carol Sabaro. Original music by Isaac Jones, sonia Herrero, Pat McCusker, Carol Sabaro, Efim Shapiro and Amin Sahota. The fact check team is Kate Sinclair, Mary Marge Locke and Michelle Harris. The head of operations is Shannon Busta. Audience support by Christina Samulewski. The director of opinion shows is Annie Rose Strasser.