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The Political Scene | The New Yorker
The Dark Money Supreme Court
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The Dark Money Supreme Court
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- [00:00]
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- [01:15]
Evan Osnos
Hey, should we talk about what we're going to call this court? What history is going to call this court? Right.
- [01:21]
Susan Glaser
I think, Evan, this is really an important conversation here because, you know, he or she who coined the moniker, you know, gets the glory. And supreme courts do give their names to political eras, you know. Is this. I'm not sure. It's the Roberts Court, though. That's what's fascinating. It feels like the Chief justice has sort of lost the plot.
- [01:41]
Jane Mayer
Can I offer a possibility? How about the Dark Money Court?
- [01:44]
Evan Osnos
Oh, here we go. Okay, that's good.
- [01:46]
Jane Mayer
This is the court that's good. That Dark Money. Bought and built.
- [01:50]
Susan Glaser
By the way. I think it's important to note that Dark Money is the name of not only a seminal book by Jane, but it brings up an important conversation. We're gonna be talking about the court today. I think it is important to note that Jane's next book is going to be on this subject too. And that's why.
- [02:06]
Jane Mayer
Thank you, Susan. This is my podcast.
- [02:09]
Evan Osnos
You're burning it all in the locker room here. We gotta have this in our big reveal, welcome to the Political Scene, a weekly discussion from the New Yorker about the big questions in American politics. I'm Evan Osnos, and I'm joined by my colleagues, as ever, Susan Glaser and Jane Mayer. Hi, Jane. And hi, Susan.
- [02:30]
Unidentified Guest
Hey, Evan.
- [02:31]
Susan Glaser
Hi there, Evan.
- [02:37]
Evan Osnos
This week marks the end of a monumental term at the Supreme Court. On Thursday, the justices handed down a decision rejecting affirmative action. Other cases from this term have revolved around politically charged issues like immigration, voting rights, and environmental protection. But this was also a year in which not one but two justices came under scrutiny for their relationships with conservative billionaires. And all of this, of course, has occurred in the shadow of last year's Dobbs decision, which eliminated the constitutional protection for abortion. Now, more than ever, it seems like the Supreme Court is at the center of our politics. So today we wanted to look at the politics of the Supreme Court, how conservative forces have shaped it over the years, and how the court is, in turn reshaping the country. So let's start with the big news yesterday. What may turn out to be, of course, this term's headline decision, and that was to end affirmative action in university admissions policies. Susan, what exactly did the court say and what does it mean for colleges and universities, do you think?
- [03:44]
Susan Glaser
I think this is an example, like the Dobbs decision exactly a year ago, of not only a profoundly conservative decision, it's about rolling back a right that Americans had for many decades, nearly four decades in the case of affirmative action, five decades in the case of abortion rights. This was once again a 6 to 3 decision. It pretty firmly shows us, in fact, that that's where the balance of power is right now that we have a six, three conservative court, the courts, six conservative justices declared as a group that the college's use of race, this is a Harvard and UNC case, that their use of race as a factor in student admissions was unconstitutional. And I think it sets up so many kind of profound debates and questions that will now sort of make their way once again into the law, into the courts, into our politics. And so to me, it's almost not the end of a story, but the beginning of a whole new, very robust and possibly very toxic toxic debate in our society about when and how to redress historic inequality in the United States. And what are we going to do about this issue of race that has plagued the society from the beginning? Just a simple declaration from our conservative justices doesn't make equality. So just because they say we can no longer use race as a factor.
- [05:12]
Evan Osnos
As you say, it starts here with universities and colleges, but already you're hearing about corporations are bracing for what might be the implications for their own diversity initiatives. Jane, the supporters of affirmative action are feeling today they're really reeling in the wake of this decision, feeling it as a huge loss. But the full effects, the practical effects of this decision are actually a little more difficult to predict, because I think there is a question about whether this is the death knell for efforts to advance diversity in higher education or in practice. Is it more of a change in how universities and how students are going to experience the effort to try to achieve diversity in student bodies?
- [05:56]
Jane Mayer
Well, on the most granular level of just how an applicant will go about applying, there is still a way that the Chief justice, John Roberts, held open to bring race into an application, which is that an individual applicant can write about their experiences with race. They were unable to say that that is not allowed, partly because Ketanji Brown Jackson asked an awesome hypothetical during the argument where she basically said, all right, you've got two families. One's got a huge legacy. And the kid who's applying says, five generations of my family have gone to this school. It means so much to me to be part of that. The other kid says, nobody in my family was ever able to go to this school because of Jim Crow laws and slavery. And it means so much to me to be able to come to this school and get through these doors that have been closed to my people forever. Is that gonna be allowed? Can a black applicant say that? And they're sort of hemming and hawing, if you listen to the argument. And the conservative justices say, yeah, I guess we have to. And so basically they say, yes, you can talk about race in an individual applicant, but you cannot talk about it as a group. There is no longer an affirmative policy that is considered constitutional by these colleges to put a thumb on the scale and say we believe diversity is a positive, and we believe that we need to make an extra effort to balance out the score here and give opportunity to a class of people who have been denied it throughout American history. And so it is actually still possible on the individual level that there will be some way to discuss race. But in the larger level, I think it's a huge setback. It sends a message, as you say, to corporate America, to other parts of America that have bent over backwards to try to provide opportunity that they no longer need to. And just let's face it, just looking at the three of us, the education is the passport to power. And these elite universities are especially the passport to power.
- [08:20]
Evan Osnos
And Sonia Sotomayor said that actually in a kind of fascinating moment in the court, she said, look at the three members of this court who are people of color. We are all graduates of these extraordinary institutions, and we were beneficiaries of this policy. She was sort of getting right to the heart of the matter. One of the things that really stood out, I think, from this term was how unusually personal some of the decisions and the comments by the justices were. You had individuals talking about, in effect, things that were directly related to their own life story and how they found their way onto the court. Susan, what struck you about that, and why do you think it's significant?
- [08:59]
Susan Glaser
Well, absolutely. If you look at this affirmative action series of opinions that were just released, what you see is this striking personal nature of not only some of the comments, but directed right at some of their colleagues. And you had this sniping between Justice Ketanji Brown Jackson, the only justice appointed by by President Biden, the first black woman to serve on the court, and Clarence Thomas, a longtime opponent of affirmative action. He was a beneficiary of it at Yale Law School and seems to have harbored a deep resentment ever since that this was undercutting him in some way. And the tone of their directly addressing each other in their opinions and their dissents, I think was notable. This is a break with the tradition of Supreme Court decorum. It is very unusual, and I think it's part of the overall sort of politicization of the Court and the showcasing of Justices themselves. It's going to make for even more distrust and rancor on the Court. I noted that two of the dissenting justices did not use the traditional form of I respectfully dissent. They just said, I dissent. This is going to be a more hostile work environment than it has been in the past. And of course, there's already the lingering suspicion from last year's unprecedented leak of the draft opinion overturning Roe versus Wade. So I think it's just not the same court in terms of these nine justices either, right?
- [10:34]
Jane Mayer
James? Oh, absolutely. I mean, I think in some ways it started last year when Sonia Sotomayor talked about the stench that was on the Court and how the public would no longer sort of trust the Court, and it's devolved since then. But I agree with Susan. I mean, honestly, if you look at the footnotes and the back and forth between between Clarence Thomas and Ketanji Brown Jackson, it's extraordinary. I mean, and it's also, I mean, really fascinating because for years Clarence Thomas, as the only black person on the court, has been able to dominate this sort of affirmative action discussion on the basis of his own experience. And now you have another black person on the court with a diametrically opposite point of view. And I have to say, I felt his comments towards her were patronizing. He's almost sort of this avuncular type saying, you know, you don't really understand. I grew up in the Jim Crow south and your skin color was not the only thing that mattered. And she then, you know, comes right back at him with vigor and basically says, this is the let them eat cake court. You know, that wants to pretend the world is colorblind and say that legally it is, when of course, we know.
- [11:54]
Evan Osnos
It'S not, who haven't seen it themselves. It's worth just highlighting a couple of the comments Thomas wrote in his opinion, speaking of his colleague Ketanji Brown Jackson, quote, as she sees things, we are all inexorably trapped in a fundamentally racist society, he wrote. He said Jackson set out to, quote, label all blacks as victims, unquote. Adding, her desire to do so is unfathomable to me. And Jackson responded very pointedly in a footnote, interestingly, and it was a clear one, she said, Justice Thomas, prolonged attacks, responds to a dissent I did not write in order to assail an admissions program that does not exist and ignites too many more straw men to list or fully extinguish.
- [12:38]
Susan Glaser
So, Evan, two quick takeaways here. Number one, always read the footnotes. That's where you get all the good stuff. But number two, I have to say, just listening to those quotes again, the culture wars are not only here to stay, but reignited in many ways by these opinions in this case. And I see a thousand Fox News segments coming on and not to the benefit of, let's just say, civil discourse and coming together in this society.
- [13:08]
Evan Osnos
Susan, I think we are all really interested in trying to understand what the political ramifications of this decision are going to be. It's not immediately obvious. In the case of Dobbs, of course, this had a tremendous effect in mobilizing people who were concerned about the demolition of abortion rights in this country. How do you think this issue actually will break down among voters?
- [13:32]
Susan Glaser
Well, that's right. I do think it is a sweeping, highly political and politicized decision, and it will have impacts, even if it's not as clear cut as it's going to mobilize millions of people to go directly to the polls to vote on this issue. One of the things that is notable is that affirmative action is much less politically popular than abortion rights, for example. And depending on how the question is worded, essentially you have large majority, even majorities of African American voters who are not wildly enthusiastic about it. They want to believe in this idea of a kind of a neutral, a race neutral America in which universities and other powerful institutions are not considering race. So it's not a motivator in that sense. But I think where you see is a broad disillusionment with the Court, a sense that the Court, by becoming so conservative really quite rapidly in just a last few years, has sort of moved decisively into one part of our political spectrum. And I think President Biden actually articulated that in his reaction to the Court's decision. He said this is not a normal court.
- [14:51]
Unidentified Guest
For example, take a look at overruling Roe v. Wade. Take a look at the decision today. Take a look at how it's, how it's ruled on a number of issues that, that are have been precedent for 50, 60 years sometimes. And that's what I meant by not normal.
- [15:08]
Susan Glaser
There's a sense, and I think this is where you're gonna see Democratic politicians move and why it is going to be an issue in 2024. You've seen a radical change overall. Overall. So not just in this particular decision or in the particular, say, Dobbs decision, which by the way, is wildly unpopular one year later, but an overall decline in trust in the institution of the Supreme Court. And there's just a sense that there's, this is almost the backlash court.
- [15:36]
Jane Mayer
I totally agree with you. And I think that there are two statistics that jumped out at me from recent polls. One is, as you say, that a majority when polled, depending on how you ask it, has said that they disapprove of affirmative action by universities that would, you know, earmark spaces for minority candidates. But at the same time, there's something like 57% of people disapprove, but a larger majority, 60% disapproves of the Supreme Court changing this. They did not want to see. People do not want to see the Supreme Court, which is an unelected and the least democratic branch, take these issues and impose itself on them. And I think that that's what the sort of the radical of politics by the Court is going to become quite controversial. And I mean, and it's interesting that, you know, Biden, everybody who studied any American history knows that when FDR tried to pack the court by enlarging it, there was a gigantic backlash. It was incredibly unpopular. Nobody's wanted to go there since. And Biden has carefully said he doesn't believe in expanding the court. But there is actually a reform that is very popular with much of the public and that is term limits for Supreme Court justices. And I do wonder if at some point we will get there. But either way, I think the court has teed itself up yet again to be an issue in this, our national politics.
- [17:07]
Susan Glaser
It's not even just that it's an issue. It's almost as if it's going to put its stamp on a political era. They have moved beyond making decisions that have a clear tilt to actually weighing in on some of the most controversial and lightning rod issues in our society in ways that actually could hang over the politics of the whole era. And I think about in a very different moment in time, the Brown versus Board era and the civil rights era that was really driven, led at first by the Supreme Court. And it ignited a broader movement in American society, including a backlash, but also including parts of the civil rights movement, which then begat parts of the women's movement. And I think that in some ways this is the backlash, the inverse. That which is we may be looking at a moment in time where there are fundamental political discussions happening in the states, in state legislatures, in our political campaigns, both at the federal and the state level, that essentially are responding to, reacting to and in a dialogue with this conservative court, which goes back to our challenge, Evan, from you to give a name to this thing, because I actually think that it is hanging over our politics in a profound way that I just sort of can't remember in our lifetime. So call it the backlash court. There's a decent case for calling it the Donald Trump Court. Radical change by appointing three justices in just one term of a presidency. Remember the last time the Supreme Court actually had an affirmative action case, it wasn't that long ago. It was in 2016. And yet there's only one member left on the court who actually voted to uphold affirmative action in 2016. That recently. And that shows you how much it's the Trump Court. You could also make a case, by the way, Jane, that It's the Mitch McConnell court, that it was the then majority leader of the U.S. senate who really focused on this as his almost lifetime achievement goal and actually managed to push it through. But I don't know.
- [19:17]
Jane Mayer
Absolutely. But I gotta say, I think there's a secret ingredient that connects Both the Mitch McConnell actions here and the Trump actions here. And I would nominate, and that is Leonard Leo, who so many people in this country don't even know exists. But Leonard Leo has been the sort of the formative force behind the Federalist Society, and he has been a force on the nomination and confirmation of every one of those conservative justices who are on the court right now. He goes back to the Clarence Thomas era where he worked on that confirmation fight. He's a very close friend of Clarence Thomas. Anyone who has been following the recent scandals with Harlan Crow, we'll remember that there's a small man in the portrait.
- [20:05]
Evan Osnos
That famous portrait has up there at.
- [20:07]
Jane Mayer
Harlan Crow's beautiful house in the Adirondacks, along with Clarence Thomas. He's always there. He's very careful to keep his fingerprints off things. But he's been a formative force in creating this court.
- [20:24]
Evan Osnos
Jane, for people who haven't been following this as closely as you have, who is Leonard Leo? Where did he come from? What does he do for a living, and how did he get himself into this position of such power?
- [20:34]
Jane Mayer
Well, for people who would like to find out a lot more, we had a wonderful profile of him by Jeffrey Toobin in the magazine. But he is a lawyer who came to Washington after graduating from Cornell Law School. And he began working for the Federalist Society, an organization that is to promote the views and to network among conservative lawyers. And it's supposed to be a debating society. It's turned out to be something much larger. It's the most powerful legal community in the country. It's an organized legal force on the right, and he ran it. Right now he's the co chairman of it. But he is much more than that. He is also running a network of dark money groups that have unknown funders pouring money into the idea of taking over the courts from a conservative standpoint in the country. And he most famously drew up the list of justices for Donald Trump in the 2016 campaign. That helped Trump decide who to pick. And Trump promised during the campaign, I'll pick one of these conservative justices. This is how we've arrived at this moment with these justices, thanks to, in large part, Leonard Leo.
- [21:47]
Evan Osnos
So in some sense, as people have come to see him, he's a bit like a shadow justice, essentially exerting a role in the process, even though he's not on the court.
- [21:55]
Jane Mayer
That's kind of true.
- [21:56]
Evan Osnos
What is it that he's actually trying to achieve, Jane?
- [21:58]
Jane Mayer
You know, he's what's called a rad trad Catholic. He's radically traditional. He wants to roll back, I think, the last century of reform. He believes that government has overstepped in the environmental area. He wants to weaken what's called the administrative state, which is something corporate America is crazy about. Break down the wall between church and state and try to bring America back to sort of a more old fashioned way of life.
- [22:32]
Susan Glaser
Rad trad.
- [22:33]
Evan Osnos
Yeah, rad trad, boy. But it's something that cuts across different lines. So it's got a religious element. It's also got this corporate element. It's got pieces that could conceivably touch on a broad variety of pieces of America.
- [22:45]
Jane Mayer
Yeah, I mean, I think one of the things that's been its strength is he has sort of overseen the merging of Christian groups, both evangelicals, evangelical Christians, Catholic rightists and corporate rightists. And by bringing these forces together, it's a very powerful coalition and it's a fringe movement, but very rich, very powerful, very good at turning out the vote. And he's been advising Republican presidents on how to change the courts in line with this vision.
- [23:19]
Evan Osnos
All right, let's take a quick break. We'll be back in just a moment with more of the political scene from the New York New Yorker.
- [23:38]
David Remnick
Right now we are living through some of the most tumultuous political times our country has ever known. I'm David Remnick, and each week on the New Yorker Radio Hour, I'll try to make sense of what's happening alongside politicians and thinkers like Cory Booker, Nancy Pelosi, Liz Cheney, Tim Waltz, Ketanji Brown Jackson, Newt Gingrich, Robert F. Kennedy Jr. Charlemagne, tha God, and so many more. That's all on the New Yorker Radio Hour wherever you listen to podcasts.
- [24:10]
Evan Osnos
Jen, you are at work on a book right now, if I'm not mistaken. I'm gonna pin you down here, which I think can fairly be described as the definitive investigative deep dive to the Supreme Court. What can you tell us about what you're doing?
- [24:23]
Jane Mayer
Well, thank you, Evan. I mean, I've been trying to fly a little under the radar, but basically, yes, I'm at work on a book that is hoping to explain the inside history of how this court came to be. And it is quite a saga. It is not a coincidence. It is a deliberate strategy that began really 40 years ago. But there are a number of players and there's a ton of secret money and it has brought us to this point. And so I'm hoping to illuminate that forever.
- [24:53]
Evan Osnos
You were doing some reporting. I remember we were talking before the show that you were up in Maine not too long ago. Tell us a bit about the protests that were happening there at One of the homes of Leonard Leo.
- [25:06]
Jane Mayer
So I have been doing some reporting on Leonard Leo, sort of the secret ingredient behind this court. And he has two homes, two lovely homes up in the town of Northeast Harbor, Maine, on Mount Desert Island. And while he's not known that well nationally, in this tiny. He's become incredibly controversial. And there was, for the anniversary of the Dobbs decision last weekend, a protest, sort of an extraordinary protest, which was big for such a tiny town, maybe 75 people. A lot of them were older ladies in tennis shoes, very blue blood with signs that said, in essence, one of them said, we will respect your privacy when you respect ours. And it's roiling this little town. I mean, this town, I have to say, Northeast Harbor, Maine, it is one of the oldest, blue blooded, most WASPy towns in America. And I mean, the names on what they call cottages, which are these gorgeous shingle style houses, are Whitney and Vanderbilt and Astor. And corporate big shots are the people there. And they're very quiet about their money and they're mostly Episcopalian. And into their midst has come Leonard Leo, who bought a $3.3 million house on the water and walks down the main street of town getting a ton of attention because he's very Catholic. He's been walking with a priest in full cassock and with a bodyguard because people have become so polarized around him. Just like it's like a microcosm of American politics. And literally last summer, somebody rolled down a window and yelled at him, fucking asshole. Which is just not the done thing.
- [27:00]
Evan Osnos
I was gonna say. It's usually not over cucumber sandwiches that you hear that kind of language at croquet matches.
- [27:05]
Jane Mayer
It's not allowed. Okay. And basically, Mr. Leo had the police department arrest this young protester. The charges were just dropped. It became a First Amendment issue, which is an area of the law that Leonard Leo has been championing. And I believe there may some more legal repercussions coming out of it. It's an unbelievable little scene.
- [27:27]
Evan Osnos
Oh, I have to say I'm already excited for this book. So stop wasting time here on the podcast and get back to writing. I think, Susan, you know, there is, as Jane has pointed to, the power of these individuals. There are these specific people here that play a dramatic role in the history. There's another one I know that you've paid attention to, and that's somebody named Edward Blue. Who is Edward Bloom. What does his influence tell us about how the court works today?
- [27:54]
Susan Glaser
Well, look. That's right, Jane. First of all, I have to Say, I cannot wait for the book. Evan's right. Please go directly home and get back to work. But it's because this is going to be an era that is defined by what's happening right now among these nine very powerful unelected officials. But to your point, Evan, it is a group of people who are there because of a concerted political campaign over the course of decades. And in a way, that's why to me, it's the backlash court. Because in fact, an earlier generation Supreme Courts that expanded the rights for Americans, that expanded the playing field, generated this incredible almost generational backlash and a political commitment by aspects of the conservative movement that this became their cause. And Edward Bloom is an example of this new conservative movement and a kind of political entrepreneurialism, political legal entrepreneurialism. Leonard Leo is one example of that. And now he has, I think, the biggest gift ever in American history to an NGO, something like $1.6 billion. Isn't that right, Gene?
- [29:04]
Jane Mayer
Exactly. This is a gigantic pot of money.
- [29:07]
Evan Osnos
He says it's a money story.
- [29:08]
Jane Mayer
It's an unbelievable amount of money.
- [29:10]
Susan Glaser
Right. So Edward Bloom is just this guy who has literally orchestrated eight different lawsuits over the decades since 1996, many of them challenging equal protection cases, voting rights cases, and affirmative action cases. He has an incredible record, by the way. He's won five out of eight of those cases up until now. The ones he hadn't won involved actually affirmative action and higher education. But the very well known Voting Rights act case in which Justice Roberts. Roberts ruled for the majority and really rolled back, said essentially that parts of the south had basically graduated from the provision of the Voting Rights act, requiring special scrutiny to their congressional redistricting maps. That was all also because of Edward Bloom. But it goes to the point he has the financing, as Jane points out, from this network, this web of groups that are systematically looking to change Supreme Court jurisprudence. But it's also the power of one individual raised as a Democrat, actually, then ran as a Republican for Congress unsuccessfully in Texas and just decided this was the way to reshape American society, to conform to his vision of politics.
- [30:29]
Jane Mayer
But you know what's interesting also is he is not the plaintiff himself in these cases. In each of these cases, what he finds is what they call plaintiffs of convenience. You have the topic and the law you to overturn, and you look for the perfect person who will be the face of grievance on that. And in a way, it's a. What the right has done is taken the playbook from the civil rights movement, which was Pretty much how, you know, the civil rights movement looked for Rosa Parks, and she was a perfect plaintiff. And that's what they've been doing. The right has learned, and it's doing the same thing, only to roll back the entire sort of civil rights era. And basically, you know, the theory behind a lot of it is that basically century was wrongly decided and they're gonna undo it.
- [31:19]
Evan Osnos
That's just a huge observation, too. I have to just point out. I mean, the idea that they are seeking to undo a century of American legal progress is the kind of thing that is recognizable sometimes in retrospect. But you're describing it as actually underway right now. And I think, Susan, I wanna also get your thoughts on something important, which is an implication of what we're describing, which is how is this actually being felt in the American. If you look at the approval ratings for the Supreme Court right now, they are historically low. And I think I'm curious whether there is something in the DNA in the culture of the court that says, hold on, we are at risk of becoming a singularly unpopular institution. Does that matter? Does that come into play? Or are they, in fact, do you see them continuing to march forward in this campaign?
- [32:11]
Susan Glaser
Yeah, I think these are really important questions because it's also a question, essentially what you're asking, Evan, is how far will this go? This is already a court that has shown itself willing to roll back core rights that we thought had been decided and settled. But how far will we go? If you look at the decisions by some of the justices, like Samuel Alito, like Clarence Thomas, well, the answer is very far indeed, and that we're not done yet. Clarence Thomas, last year in the Dobbs decision, in fact, sketched out a future in which other, other rights would also come under assault. Things like LGBTQ protections, for example, or marriage equality. Those things are not out of the realm of possibility that they could go from what we thought of as settled law to part of this conservative rollback. Now, the votes probably are not there. Now, I think when you look at it, Justice Roberts, the Chief justice, probably Justice Kavanaugh, they're not in a position place yet. That doesn't mean they wouldn't get there. But they're not in a place right now where they're going to be looking to more systematically and more broadly overturn protections that we thought of as settled law. But I wouldn't rule it out. What I want to know, and I'm really interested in what the reporting has turned up so far about this, Jane, is are Democrats going to make this their new cause? Are they going to get their act together? Are they going to understand that they just can't reverse the action of this conservative court overnight, that it's going to take them possibly a generation to undo the damage that this court is doing? And how are they responding to the challenge that this backlash court, this Leonard Leo court, this Donald Trump court, is wreaking on the country?
- [34:01]
Jane Mayer
Well, there has been a good question, a lot of reluctance so far, I think. I think it's a very ripe political issue, but that there's a nervousness and an institutional sort of respect for the court that older Democrats have. And so you see some people like Senator Whitehouse from Rhode island has made this his central issue and he's crusading on it and he's really been out front on it. And there are few people, Democrats in the House that have also been very loud on the issue. But you know, when you come back and you look at what Biden's been saying, it's quite quiet. To say this is not normal is not to say this has to change. He's not taking that position. It may be that Harris, Kamala Harris, who is gonna be apparently out campaigning on the abortion issue a lot, may take it on a little more aggressively. But I think the Democrats have been somewhat reluctant. And I would say there was a point where Chuck Schumer came out and he basically attacked the court and he said, you will reap the whirlwinds, know, for overturning Roe. And it's been taken up by the right as saying that he threatened the court. They've used it to say that he crossed a line and he's threatened the justices and he's kind of backed off since then. So I think the Democrats have not really seized the moment here yet, and I don't know whether they will.
- [35:31]
Evan Osnos
This part of the conversation points us to something really important that's kind of lurking beneath the surface here, which is the fact, and it's a remarkable fact that the Supreme Court is now fully acknowledged and understood to be an institution in the political fray. I mean, I think it's for somebody who's coming to politics just in the last couple of years, that might sound like an ordinary fact. That's actually a remarkable fact. It's true.
- [35:55]
Jane Mayer
It's a change. It is a huge change.
- [35:57]
Evan Osnos
And I think it's sort of you want to put a pin in it and say, what does that actually do? I mean, the reason why Joe Biden is kind of reluctant in his old Line Democrat way to get involved in the fray is sort of similar to the same way that he doesn't want to comment on investigations that belong to the Justice Department. These are sort of some of the old habits of politics and they don't always accord with how people wanna conduct themselves these days. Susan, when you look at the role that the court plays today, and this is sort of bringing us around to the end of our conversation, but do you think there is any going back? Are we now into an era in which the court is permanently a combatant?
- [36:37]
Susan Glaser
Yeah, I mean, look, the short answer is yes. The longer answer, Evan, is I think there's always been a little bit of sanctimony in the idea that it wasn't a political actor. And in part that may be because liberals, at least mostly in the post war period, felt that broadly speaking, there was a notion of progress overall and that always obscured the intense political combat around. Look at the history of Supreme Court nominations. Obviously they didn't start becoming hyper political just in the last few years. What's different is public confidence in the institution of the court, which has plummeted in recent years, and I think a confidence around the decisions and that ultimately the public would have to accept them either way, because that's how it's done in America. And that's what scares me, is that we may be entering an era of possibly just non acceptance by the losing party of the validity and the legitimacy. And it can take a very long time. Again, I'm struck by the discipline and organization and focus and money and resources that a small group of people, the right, took to the challenge of undoing decisions that they did not agree with. And I just don't know what the equivalent response now will be. And I fear that at this moment of extreme polarization and indeed radicalization in our politics, that the answer might not be a kind of purely legal focused effort to undo things, but, you know, taking it into the streets. The only other thing I want to spotlight is, is that while we don't know how far this new backlash court is going to go in undoing other rights that might now be at issue. I think we can say pretty clearly that where the fault line is among these conservatives and where you're gonna see a lot of decisions where they're fighting over is on this question of federal and executive power versus states rights, I think that's the one area where this new 63 conservative majority somewhat disagrees among themselves. And so I imagine that that's gonna see efforts to probe and push and future cases defining what's the limit to the federal government versus where change should occur in the states.
- [38:55]
Evan Osnos
Jane, why don't you give us a final thought?
- [38:58]
Jane Mayer
Well, I was gonna say another area where I think you're gonna see tremendous activity, and we are seeing it is in the area of breaking down the wall between church and state. This is not just an extremely conservative supermajority. It's a very religious supermajority. And it's distinctly, for the most part, though, Gorsuch is now Episcopalian. He was raised Catholic. So I think we're gonna see a lot of activity in that area. I think one of the costs we're already seeing of the court doing this and taking positions that are so unpopular is it is bringing a spotlight on itself like it's never had before. And that's why we're learning about Harlan Crow and Paul Singer and the billionaire funders who are giving private jet rides to the justices. There's a spotlight now and an interest in who these people really are. There's sort of a pulling back of the robes, and I think we're in that era.
- [39:57]
Evan Osnos
Wow. Well, we're gonna have to leave it there for today. I am sure we're coming back to this topic. It is really just wonderful to know all that you're learning that you're discovering along the way. Jane. We are beneficiaries of it. Thank you, Susan. Thank you, Jane. And we'll see each other next week.
- [40:14]
Jane Mayer
It's so great to talk to to you guys every week. So thank you.
- [40:18]
Susan Glaser
All right, thanks so much.
- [40:24]
Evan Osnos
This has been the political scene from the New Yorker. I'm Evan Osnos. We had production assistance from Alex d', Elia, Dan Richards, and Catherine Winter. Steven Valentino is our executive producer. Our theme music is by Alison Leighton Brown. Thank you so much for listening, and we'll see you next week. Week.
- [40:52]
Katie Drummond
I'm Katie Drummond. I'm Wired's global editorial director.
- [40:55]
Evan Osnos
I'm Michael Kollori, Wired's Director of consumer tech and culture.
- [40:58]
Susan Glaser
And I'm Lauren Good. I'm a senior correspondent at Wired. And our show, Uncanny Valley is about the people, power, and influence of Silicon Valley.
- [41:07]
Katie Drummond
And right now, Silicon Valley and Washington have never been more intertwined. So each week, we get together to talk about a big story, often at the intersection of tech and politics.
- [41:17]
Evan Osnos
Right. So whether we're talking about Trump, Coin Doge, or Elon Musk, we will always explain how these Silicon Valley forces are.
- [41:25]
Susan Glaser
Affecting Washington and how they affect you.
- [41:28]
Katie Drummond
Make sure you're following Uncanny Valley in your podcast app of choice so you don't miss an episode.
- [41:38]
Jane Mayer
From prx.