This is Democracy – Episode 194: Abortion and the Supreme Court

This is democracy, a podcast about the people of the United States, a podcast about citizenship, about engaging with politics and the world around you. A podcast about educating yourself on today’s important issues and how to have a voice in what happens next. Welcome to our new episode of this is democracy.

Today. We’re going to discuss the release of a recent draft Supreme court, uh, decision. It’s not a final decision in any way, but it is a draft written by justice, Samuel Alito. Which seems to indicate that the Supreme court is poised to overturn the Roe V. Wade decision of 1973, which created a constitutional right, uh, for women to have access to abortions, at least at some point during their pregnancies and.

This, uh, draft memo was leaked in a way that’s really quite unprecedented for the court. And it is raised, uh, a great deal of concern in many circles in our society about the future of women’s, uh, access to abortion about the constitutional law, about the nature of the Supreme court. And we are fortunate to be joined today by my colleague and friend, uh, who I’m sure is known to many of you he’s been on our podcast before.

He’s one of the foremost thinkers and writers in America. On the Supreme court and on constitutional law. This is, uh, as I said, my colleague and friend, professor Stephen Vladek Steve. Thanks for joining us again. Of course, Jeremy, always a pleasure to be with you guys. We need better circumstances though.

I know. I hope we can have you on at a time of celebration, not just a time of tragedy in the future. Uh, Steve holds the Charles Allen Wright chair in federal courts at the university of Texas school of law. And his fields of expertise, cover federal courts, constitutional law and national security law and military justice he’s argued before the us Supreme court.

I’m very jealous about that. I’ve never, as a historian had an opportunity to do that. He’s argued before the Texas Supreme court and various lower federal civilian and military courts. And as testified between the Fort numerous congressional committees and executive branch agencies and commissions, and has served as an expert witness, both in USA.

And federal courts. Uh, he’s the host, uh, with, uh, another colleague of ours, professor Bobby Chesney of the popular award winning national security law podcast. And many of you I’m sure have seen Steve on CNN where he’s a lead to premium. Analyst, he’s written a number of books, many seminal articles, and he has a forthcoming book on the shadow docket, which I’m sure many of you will be interested in reading.

And we’ll certainly have Steve on to talk about that in the future. Uh, before we get to our discussion with Steve about, uh, the recent happenings at the Supreme court, we have, of course, uh, Mr. Zachary’s poem, what’s your poem? Today’s. My poem is actually a poem that I read, uh, I think six months ago or so when we did a similar topic with the same guest, uh, uh, as this decision was, so last minute, I didn’t really have time to write a separate poem for this episode, but I think I hope it’ll still be relevant.

It’s called the right to choose. The law is like a chocolate orange that splits with the sweat of children’s hands into a million symmetrical pieces, distributed evenly across the living room by the soft power of the puppy, dog eyes by the power of the tantrum or the shoe thrown sideways at a sibling or a.

And when unpeeled and licked down the law is tart. It is the sour. We run through orchards to pick off trees, the bitterness, we chase down supermarket aisles to taste. But, and keep this in mind, like the child that cradles it attentively, it has a tendency to melt a propensity to phase change in the middle of our merriment.

It is the fascination we take out of our pocket. Maybe a couple days later, indistinguishable from the cold and manufactured wrapping paper. The treats that can no longer be unfolded or reshuffled or reimagined because it’s already chosen. It makes its decisions without our input. It reserves the right to choose.

I think the second time through that poems, even better, Zachary, uh, you’ve done 194 poems. I think it’s the first time you’ve actually repeated one. It’s not a bad verse. It’s not a bad precedent. Uh, what’s your poem about my poem is about the fickleness of the law and the ways in which our legal system here in the United States can often make some very dumb decisions.

Okay. All right. Well, it’s apropos. Yes, it is. So, uh, Steve, as a historian, who’s followed the Supreme court. I have to say I’ve never seen anything like this. I’ve never seen the leaking of, or remember reading about the leaking of an opinion like this. I don’t remember reading about a draft opinion that so seems to, so clearly overturns 50 years of practice.

Is this new territory we’re in Steve. Yes and no. I mean, I think it would help to sort of differentiate between what’s new here and what’s not. So, um, leaking actually is more common in the Supreme court history. I think a lot of folks appreciate or might even expect, um, you know, there are documented leaks of the sort of substance of Supreme court rulings going back to even before the civil war.

Um, it’s fairly well-known for example, You know, chief justice Tani, even plotted with president Buchanan about when to hand down the Dred Scott decision. Um, you know, Franklin Delano Roosevelt was tipped off that the Japanese internment decisions were coming by Felix Frankfurter, even RO I mean, row time magazine famously.

Ran a headline about what the result was enrolled, what the vote was in row a week before the decision actually was handed down. So, you know, leaking out of the court is not unheard of what is so stunning about what happened on Monday night is, you know, we have never seen a draft opinion leader. Um, right.

That all the prior leaks have been sort of secondhand, you know, hearsay about the result and maybe the vote count. Um, but nothing like 97 pages of draft analysis where, you know, Jeremy folks like you and me can sort of tear into the actual substance of the draft and see exactly what the court, you know, at least initially agreed to do.

And, you know, I think that that would have been stunning in any case. And I think it’s a specially stunning. In this case, given the enormity and the gravity of the issue presented and of the apparent move the court, or at least five of the justices are willing to make. So just to understand the basics of this, Steve does this draft opinion necessarily reflect five justices views on the.

Um, not necessarily. I mean, so to sort of, you know, to put all of this in context and, you know, and it helps that the court confirmed the authenticity of the draft. Um, so we don’t have to speculate about whether this is real anymore. Um, the way it usually works at the Supreme court is after oral argument, the justices all meet in conference where they’ve.

Sort of tentatively on how they think the case should come out. Um, and so that would have happened in the Dobbs case back in December argument was December 1st. Um, the justice has sat down and talk about it a few days later. And you know, what happens at conference is presumably some majority emerges, um, however, tentatively and based on that tentative majority.

Um, you know, the senior justice in the majority assigns the majority opinion to one of the justices in the majority. And the idea is that they’ll go and write a draft and they’ll see how the draft goes. And they’ll see if they can keep the justices who had voted that way. A conference. Onside. Um, and so by all accounts, Jeremy would happen here is that the vote at conference was five to four, at least with respect to overturn Roe and Casey.

Um, it might’ve been six to three with regard to upholding this 15 week abortion ban with justice Roberts sort of splitting the difference. But so the vote was five to four on Rowan case. Probably that means justice Thomas, the senior associate justice, um, after she justice Roberts assigned to justice Alito, and this is a Leidos first draft.

This is the opinion of Lido would have circulated back in February, you know, to try to see, Hey, you know, is everyone on? Is everyone with me? Right. Do I still have my majority? Um, and you know, Jeremy, just to sort of put one sort of last point on it and that’s part of why I was so struck. Last night by the time end, because folks might wonder why, you know, a draft opinion that was circulated on February 10th would be leaked to now, well, this is exactly when you would expect concurrences or descents to be circulated.

Um, and so this is why, you know, sort of my theory for what happened, um, is that there are folks in the majority, right, who are worried about one of the concurrences or descends pat potentially peeling off a member of the majority. Um, and that that’s what’s going on here. That’s why this leaked. So, so you think that this was leaked by someone in the majority or someone in the office of someone in the majority or someone sort of sympathetic to the, you know, close to someone in the majority because I just, you know, I, I don’t know.

I mean, let me, let me be clear. I’m speculating. You know, it would be very, if I were one of the liberal justices first, I don’t know what a leak accomplishes. I mean, the, the justices in the majority, they know what kind of backlash they’re going to face. They’re going to do this anyway. Um, but also if I were going to leak a Leidos draft opinion and I were one of the liberal justices, I would have done it the second at sir.

Um, right. Cause that’s, that’s the moment to strike. That’s the moment to sort of start building up public momentum against this decision, this, this, you know, this draft opinion, um, in contrast, right? Why leak now in April, while you’re leaking now in April in April or may, because something has happened since, right.

That has changed some feature of this draft opinion. And as I said, the best explanation, is that something in the concurrence or the sense, you know, Scared someone in the majority. I mean, let’s just put this all on the table, right? Imagine if chief justice, Roberts, no friend of abortion, um, wrote this escape, them opinion, castigating the other conservative justices for damaging the institution for unnecessarily overruling Roe.

When he actually would be saying, I can uphold the Mississippi law while leaving Rohan Casey intact. I could see a world Jeremy, where there’s another conservative justice. Who’s worried that that would peel off justice Kavanaugh, and then they lose their majority. So, you know, I don’t know that this is coming from the right as opposed to the left, but the timing to me is the most telling feature of why if I had to pick, right, it seems more likely to be coming from that side versus.

No, the likely dissenters. And how would leaking this, help someone in the majority dissuade, a justice Kavanaugh or someone else from leaving the majority? Yeah, I mean, I think because you know, this being out there mix it really, really hard now for someone like a justice Kavanaugh to switch sides. Um, because, because we all know.

Right. Cause Jeremy, we all know that at conference, he was a fifth vote to overrule Roe. We all know that he initially agreed right to join, um, to join in this result, even if he never actually expressly endorsed justice, Alito his opinion. And so, you know, I think there’s a pretty straightforward version of this story where leaking the opinion is designed basically to.

Um, keep everybody on side to prevent, to sort of build a record where if they were to switch sides, everyone would know that they switched sides. Um, and everyone would know that they were, you know, to use a term popular in right-wing social media squishes. Right. But couldn’t, they just say they changed their mind as they always do on the court.

Yes, but I think it’s one thing that, you know, it’s one thing to say. I changed my mind. It’s another thing for it to happen now that the opinions out, because now it would look like you’re just completely bowing to public. Um, right. And you’re worried about being shunned on the cocktail party circuit. Um, and so, you know, I think that to me, that is the best rationale for why this would be out there versus, you know, the, sort of the argument you hear from conservatives today, which is that some liberal justice, they all assume it.

So to my work cause they all can’t stand. So to my mind, Um, right. That a liberal justice for one of their clerks leaked it to put pressure on, you know, to create the, sort of the reverse kind of pressure to create public backlash that pushes that, that fractures the majority. And again, I mean, Jeremy, to me, the best explanation against that is the timing.

Like, why wait. You know, three months from when a Lido circulated this draft, if that’s true, right? I guess the question would be who leaked it. It might be that the person who leaked it didn’t have access to it in February and somehow received access to it. Now. Yeah. Although I don’t know. I, you know, it’s hard the way the Supreme court works.

It’s hard to imagine how a first draft, like that would have become available to someone now, but not when it was circulated in February. Right, right. Unless it was shared with a third party and then the third party shared it with. Yeah. And to be clear, I mean, I don’t want to, you know, I, I fear that starting our conversation here, you know, sort of buries the lead, um, because, you know, I mean, to me, the leak is a story, but of course, you know, what it portends is really that story.

Um, and so, you know, the. The inside sort of baseball of why this leaked and who leaked it and what are the clues about who leaked it? You know, I think those are interesting. I think those are important. I think they’re actually incredibly significant from the perspective of the Supreme court as an institution going forward.

And yet I think that they are completely. By what it would mean if this is actually what we’re getting when the formal decision comes out. So let’s, let’s talk about that. I mean, one of the things that, that strikes me about this moment and reading as I did quickly, then the 97 pages, I’m sure you’ve read them more closely and you have much more expertise and background.

But one of the things that struck me about them is Alito makes arguments that I find, uh, often, um, actually juvenile and superficial, but, but, and, and historically inaccurate in a few cases, but not surprise. I mean, I’m actually not surprised he’s taken these positions. So what, what is surprising to you about it?

Um, I guess I am surprised by two thins. I am surprised by how little he engages with the sort of contemporaneous. Evidence and the, sort of the con the countervail and contemporary evidence about abortion practices at the time the 14th amendment was adopted in 1868. Um, and you know, Jeremy, I’m surprised at how superficial, the sort of effort to say this is only about abortion.

Um, and the opinion is, I mean, you know, at one point a Lido has this road, there’s a, in the draft opinion, there’s this remarkable two paragraph sequence where in the first paragraph, he says, of course, we’re only talking about abortion here. You know, um, when everyone says that this is just opening the door to scaling back all other kinds of substantive due process rights, um, when, you know, gay marriage, same-sex marriage, all this other stuff, you know, don’t listen to them.

We’re really just focused on abortion. And then the very next paragraph, he talks about how, and the problem is that the. Right. The court recognized and Rowan Casey is not deeply rooted in America’s constitutional traditions and history. Well, if that’s the central problem, I have some other rights that are not similarly, deeply rooted.

How can that argument have any legal merit? When Roe has been precedent for almost 50? Yeah. I mean, you know exactly. It’s, it’s the right. It’s the right question. And I think this is, you know, one might have expected a fuller throated defense of wiping off the books. The case has been around for 100 years.

Indeed. You know, I think golf. There’s been a lot of, uh, sort of circulation today of a video from justice Alito, his confirmation hearings in lado five or Leo six, where he talked about how one of the, one of the things that makes rose such a powerful precedent that the Supreme court has reaffirmed it multiple times.

Um, so, you know, this is why, I mean, you know, um, Barry Friedman from NYU and Dahlia, Lithwick from slate. And I had a piece in the Washington post that basically said, you know, what is most. Reveal him about justice Alito. His opinion is how very little law there is in it. Um, and how this really is just basically a manifesto of, you know, grievances about everything that was wrong with Rowan Casey.

As opposed to sort of a sophisticated piece of, you know, legal analysis for why this precedent that’s been around for 49 years has been reaffirmed multiple times, you know, most recently two years ago, um, is all of a sudden, you know, somehow worthy of being relegated to, you know, the, the dustbin of history.

And I guess, you know, there’s just this, um, Uh, the self-assuredness on the part of the conservatives and it’s just so obvious that row is wrong. And then what I find what I find so horrifying about that is how it writes out of the story. You know, not just the large, large swaths of the American electorate who support row.

Um, but the people who stand to. Be harmed in a world without a constitution, right. To abortion. I mean, you know, the, sort of the plight of women, um, who would have trouble accessing abortions in a world without NAFTA row comes up, not once in the majority opinion, it’s just, it is, you know, it is not an attempt to be conciliatory at all.

It is basically just a. And how unusual is it for the Supreme court to overturn what has basically been a constitutional right for almost five decades? How unusual is that? So depending on who you ask, you know, there are those who would say it’s a first, I mean, it depends on. Frame it, right. This is not the first time the Supreme court has taken a right.

It has previously recognized, impaired it back. You know, folks who know the court’s history. Well, as you know, I know you guys do, um, right. Would point to, for example, the economic rights that the court recognized in the early part of the 20th century, and then sort of walked away from, you know, in the, in the new deal era.

But man, we’ve never seen it like this, right. We’ve never seen a right. That was such a deeply personal. Right. That was such a defining part of the autonomy of the individual that the Supreme court has not just recognize, but repeatedly reaffirmed. And then all of a sudden, if this is where we’re going, you know, and again, there’s a bit of an assumption that this is where we’re going, right.

Just one day wiped off the books. And I guess I would just, I would have thought that a court that was going to take that. Step would have been maybe a little bit more, um, willing to acknowledge how dramatic and remarkable a step that was for an undemocratic institution, right. For nine justices. And in this case, five justices.

Appointed by presidents who at least in a couple of their cases never even won the national popular vote. So, you know, I just, this is the part of the opinion that I find most distressing, which is, you know, I think a lot of us expected the court was likely to overrule Roe and Casey this term, even if we hoped it wouldn’t, but the notion that like, this is, um, As if it was inevitable, as opposed to a very close question that sharply divides America is based on a rather skewed narrative of both how constitutional law operates and how abortion currently sits as a public policy debate.

So Alito tries to counteract or anticipate this argument by saying, well, the court overturned Plessy versus Ferguson. Right. And that he, he, he, he, he seems to want to reverse the argument here. Why, why is that different, Steve, you would think in this age of technology, we would have gotten over that problem.

So, I mean, this is, you know, I had really hoped that this is not an argument that was going to show up in the opinion. Cause it came up in the oral argument, you know, the effort by conservatives to pitch. The overruling of RO as 10 amount to the Supreme court in brown vs. Board of education overruling Plessey I think just sort of reinforces my frustration with this approach.

Right. Which is that it just, you know, belittles and marginalizes, um, the large chunk of the population that has come to rely deeply upon this. Right. You know, I think if you really don’t look that hard beneath the surface yes. You can draw comparisons to the court in brown. Overwhelming Plessy, but guys, plus he didn’t create a right.

Um, plus he denied, right, right. Plus the, was the Supreme court saying that it is perfectly fine for states to have separate but equal facilities, you know, which was especially horrifying in a context, which everyone knew his justice. John Marshall Harlan pointed out in his dissent that separate was not.

Equal. Um, and so the notion that this is parallel when in fact it’s literally the reverse, um, is just another example of how I think just oblivious, right? The draft majority opinion is to the, to the arguments on the other side. Well, to me it seemed disingenuous because what you said is sort of what undergrads would have known.

Right. Um, so I mean, it, it, it seemed to me not even superficial, it seemed as if he was trying to make a point that he knew was wrong. Well, I’m in Jeremy, I guess it depends on who you think the audience is. Um, so, you know, if you think the audience for this draft opinion or whatever the court ultimately does is folks like you or me then of course, I think that’s right.

Um, if you think the audience is just, you know, conservative politicians and their supporters who can just take lines out of context and just sort of use talking points that sound like they’re. You know, responsive then, you know, maybe that’s mission accomplished, but, you know, I, I do want to say to me that at the risk of, of, of given one sort of moment of pause, I mean, this is the first draft of the majority opinion that we’re seeing.

Um, you know, presumably some of this logic is going to be sharpened and hopefully, um, developed a little more persuasively. Part of what happens at the court when you start to have concurrences and dissent circulated, is that, you know, in some of those cases, the majority opinion is improved or at least amended, um, to account for those arguments.

So. You know, I, I do think we should withhold judgment at least a little bit on the final analysis that’s going to come, but whole boy does it seem like this is a court that is chomping at the bit to overrule Roe and Casey almost no matter what analytical path it takes to get there. What do you think that does to the longterm legitimacy of the Supreme court in the eyes of the public, but also in the eyes?

Uh, other parts of government that, that, that rely on these decisions to make legislation and, and, and policy. Yeah, I mean, this is, I think one of the other parts of the draft opinion that I, that I found, especially disingenuous was, you know, justice Alito suggestion in the draft that this returns the issue to the states.

Um, so, you know, there are two problems with that. The first is the whole point of having constitutional rights is actually to take these issues away from the political brand. Um, as, as a matter of, you know, constitutional protection, but second an aside, I mean, do we really doubt that if and when Republicans control both chambers of Congress and the white house, that they’re not going to pursue some kind of federal abortion ban, um, if, you know, if this becomes the law of the land, I don’t.

Um, and so return it to the states is, again like this misleading, the disingenuous catch phrase meant to sound like it’s a persuasive argument when it isn’t, um, Zachary to your broader question though. I mean, I think this is where I go back to the leak as being part of the story. I think this result and this leak right, are both incredibly ominous signs in the continual erosion of the course legitimacy.

And what I think is especially striking is, you know, the court’s legitimacy is a in like with stunning speed, um, not uniformly, right? It’s eroding much faster among Democrats and among Republicans for obvious reasons. But, you know, the, the, at least the, the, the majority opinion by justice Alito just doesn’t seem to care.

Um, and that’s of a piece with, you know, some of the speeches that the justices have given over the last, you know, 15, 16 months, um, it’s of a piece with some of the stuff we’ve seen in, you know, the, the topic near and dear to my heart, the shadow docket, these unsigned unexplained orders in cases with increasingly broad impacts where, you know, there’s just seems to be a majority of justices who were.

Progressives and Democrats and liberals, you know, complain about the legitimacy of the court in the end and the court as an institution, they just sort of stick out their tongues and say, nananana, boom. Um, and that’s again, why I come back to chief justice Roberts because you know, one of the remarkable things that has started to happen as he has started to break from the other five conservatives, right.

In cases where there has been some kind of institutional tension, um, we’ve seen it primarily so far on the shadow docket. But, you know, this is where I’m going to come back to the time, you know, is it possible that there’s a, you know, fire-breathing opinion from the non-fire premium John Roberts, that is actually part of why this is all coming out into the open now.

So two questions on this, Steve. I see what you’re saying, but I do think it was a Leto as well as, uh, Barrett and others who during the last 16, 17 months, right. I’ve been going around saying the court is not political. Don’t say we’re politicized. They’ve been trying to make the case. Uh, that was a presumption, at least many of us.

At least a few years ago, right. That the court was somehow not as susceptible to the political winds and the way that Congress and the executive are. So, I mean, it seemed they wanted to make an opposite argument. Uh, and then the second question is I think the one that’s naturally provoked by your excellent comments, which is.

They’re members of the court. How could they not care about the legitimacy of the court? Yeah, I mean, I might, if I don’t let me take those in order I’m in Jeremy to the first. Yes. I mean, a Lido gave a speech at Notre Dame law school. I think it was last September. Um, you know, the sort of the first and to date, most sustained defense of what he calls the courts, emergency docket.

You know, where he tried to suggest that, um, efforts to criticize the court are, you know, sort of efforts by Progressive’s to intimidate the justices. This is all kind of some, some sort of campaign to scare them. Um, as if, you know, we’re the ones who control their legitimacy and we’re the ones who actually control what they, this you’re such a scary guy, Steve.

Well, I, I really, I was, I was struck by like the fairly tacit or not even tacit the fairly overt admission that like the criticisms are getting too. Yeah. Um, but you know, and sort of the thin skin that, that suggests. But, but, but that aside, I mean, yes, I think you could, you could, you could put together a highlight reel of what we might call the, you know, we’re not political hacks to.

Um, that the justices have been on and, you know, justice Barrett, um, in a speech at the Ronald Reagan library, you know, last month said, Hey, you know, don’t just assume we’re political hacks, like read our opinions, look for the principles, you know, um, let the opinions speak for themselves. Well, shoot. I mean, if this is what the court is, if this is the opinion we’re getting, that’s gonna be the most significant overruling of precedent by the Supreme courts.

Certainly since. Brown in 1954. Um, it’s not an impressive read. And so I guess, you know, to, to your second question, Jeremy, I think this to me isn’t always has been right. The difference between the sort of the Roberts conservatives and the Trump conserves. I mean, this, this to me is establishment Republican politics versus Trump.

Um, right. Which is, you know, do the institutions matter or is all we care about the wins? And, you know, I think we’ve seen some contexts where the six pincers on the court have broken into two camps on that score, where we’ve seen Kavanaugh and Barrett, maybe lean a little bit more toward the. On some of those points, but we’ve also seen context where it’s been five to one and you know, it looks for all accounts.

Like this is another one. And so I guess, you know, there are two approaches, right? One is the, you know, for law to, to input, to implement a long-term conservative agenda, right. You need a legitimate court and that’s probably, you know, part of the John Roberts worldview. And then I think there’s this sort of shorter term view, which is who cares about the longterm.

We have the votes we’re here, we’re dressed. And even among, um, conservative justices who really. Trump created, right? I mean, even, you know, Kavanaugh, Barrett, Gorsuch, Thomas, I mean, their, their roots are long before Donald Trump. They’re the wrong before the shift in the Republican party. They’re Bush Republicans.

Right. All of them in some ways. Yeah. I mean, you know, so, I mean, there’s an interesting story to tell about what happened to Neil Gorsuch and Brett Kavanaugh. Um, you know, I, I think there’s an extent to which Thomas his politics were always closer to Trumpism than we might want to admit. Um, But, you know, I think w whether, I mean, that’s, that to me is sort of yet another chapter in the whole sort of Trump was a symptom, not the disease, part of our story.

Um, but you know, I really do. I mean, I, I wrote a piece, um, last, last fall, Um, right. As the justices were going on this, you know, we’re not partisan hacks tour. Um, whereas had guys, you know, stop complaining that it’s your critics that are de-legitimizing the court, right. It’s what you’re doing. Right. Um, and that some of your critics are actually trying to help save you from yourselves, right.

That, that at least for me, and I know not all Progressive’s feel this way, but at least for me, you know, I think an illegitimate court is actually a terrible thing for our. Um, even if that means I have to accept, you know, um, and push for, right. The, sort of the, the sanctity of decisions by six justices who I almost never agree with.

Right. Um, right. But like,

it shouldn’t mean that you spend the entire time that you’re in power burning down the place. And I just feel like the more that we have stuff like this happening, and again, right. Not just the leak, but also the. You know, the sort of what the leaf portends, the more it suggests that there really are five votes that just don’t care.

And I guess the question I want to ask before we, we go to our final question about where we go from here, uh, on this issue of legitimacy. I think I know your answer, but I I’d love to hear you articulated Steve. Why is legitimacy and the notion of the court being about politics. Why is that anything more than the myth?

I mean, some people would look and say, you know, look at the Bush V gore decision and look at the court during Lincoln’s time. And Jackson’s time that it’s always been a political creature, uh, and that this is a kind of myth we created. To justify certain things. Uh, but, but in fact this is just normal play.

And right now you have one group in charge and they’re just doing what they can. So I guess I would distinguish Jeremy and maybe not persuasively, but I will at least try to distinguish between whether the court’s political and whether the court’s legitimate, um, right. That, you know, anyone who suggests that the court is and should be above politics, I think is just not taking the court’s history.

Seriously. The court has always been a political creature, um, you know, political sort of maybe in the small piece of. But, I mean, you know, look at Marbury versus Madison, right from the get-go, you know, this has been a court, the sort of the Seminole decisions of which have had deeply political valances.

Um, what has separate, what has preserved the court’s legitimacy? I think for a large chunk of that cycle. Is that just because these decisions had political valances didn’t mean they had partisan balances. So, you know, just case in point, right when the Supreme court in July, 1974, you know, rules against Richard Nixon and the Watergate tapes case, a decision that basically precipitates Nixon’s resignation because it forces out the smoking gun tape.

Um, you know, the court was acting incredibly politically, right? It’s an eight and nothing deeply compromised opinion. Um, you know, Issued in the name of, to justice Warren burger, but actually really written by different justice, different places, Jeremy that’s to me, deeply political, but also deeply institutionally powerful because the court was speaking with one voice because it was standing up to the president because it was doing so under the name of the chief justice that said that very president had appointed.

And so I think it’s a mistake in my view to. You quit the course legitimacy with it’s a political newness to me, right? The course legitimacy as a function of believing that when it’s being political, it’s not being partisan. Um, and I think what is increasingly. Problematic about almost every big thing this court does.

Um, you know, whether it’s in the abortion context, the voting rights context, right? The religion context is that everything looks not just political, but partisan. Um, and that, you know, when you get the opinion, the draft dependent from Alito that looks like it, you know, repeats talking points about the Republican platform against abortion.

It doesn’t do anything to dispel the concern. So I guess, you know, to me, legitimacy is not, you know, it is healthy for the court to be political. It is not healthy for the court to be partisan. And I think that that’s the line that we’ve included. Right. Right. And I, and I guess the way I would articulate that, just saying what you’ve said a different way.

Is, we shouldn’t know what the decisions are going to be before they’ve heard, heard the case, right. There should be some belief that there’s some deliberative process going on rather than simply taking the positions that are obvious beforehand as is often the case on that’s. Right. And, and, and it shouldn’t be the case that the best predictor of how the Supreme court is going to rule is whether the decision helps Republicans or Democrat.

Right. Precisely precisely. So if we’re in that space now, which clearly is not a good space, uh, whether it’s new or not new, it’s certainly not a good space for convincing people that there is some objective, some somewhat objective place to go for the adjudication of our disputes that divide us in the other branches.

If, if that’s lost, where do we go from here? What do you see as the role of the court going forward? And, and. What can we do to salvage a, um, uh, a less partisan, I mean, at the risk of, at the risk of saving things that are implausible, um, you know, this is why I think the court reform conversation, um, that, you know, really started in the fall of 2020, um, and that.

Then candidate and now president Biden, at least putatively committed to was such an important moment. And frankly, a missed opportunity, um, to have a conversation about the role of the court in our system, that wasn’t just tied to add in seats or imposing term limits. And so, you know, I think it’s time to reopen that.

That can of worms and to have that conversation again. And even if we’re not going to get anywhere on structural changes to the Supreme court, you know, we can talk about the court’s docket. We can talk about what kinds of cases it here. We can talk about, you know, what we’ve given these unelected justices, the power to do.

Congress could, if it wanted to right reassert its power to. The jurisdiction of the Supreme court, something that used to do far more often than far more aggressively. But I also think Jeremy that this is part of a larger sort of asymmetry between Republican national politics and democratic national politics, which is that the court has been a central part.

Of the Republican party’s national agenda for a general for more than a generation now. And it just hasn’t been a part of the democratic national agenda. And I think, you know, the public reaction to the leak, the public reaction to the substance of the league, the public reaction to the Supreme court, you know, if it really does end up, they’re getting rid of abortion.

Or to have a galvanized on the fact that hopefully persuades Democrats to take the court seriously. Um, and the ticket’s seriously as an electoral issue, you know, to run against the court. As I think now maybe the, you know, there’s an opportunity to do in the, in the 20, 22 midterms. Um, and you know, I think it’s because that’s the.

A remarkable shift without a completely unexpected shift in the competition of the court. You know, that’s the way to, to force the court to moderate itself, right. Is to put pressure on it from outside. And those pressures are gonna come from the political branches, if at all, and from, you know, the American people, if at all, and the first step to the habit of those pressures is to have on people care about.

Right. Right. So Zachary, do you care, does this change the way you and your generation? I start, I sort of feel like, um, many in your generation are politically engaged are, are so distracted by so many other important issues from the court that the court doesn’t get the attention that Steve would want it to get.

Yeah. To, to be a hundred percent honest. I think it’s very hard, at least for my generation to sort of, to see the, the, um, the, uh, Promise of the Supreme court. I mean, on the one hand we have the Obergefell decision, um, which was in many ways, uh, the, the first Supreme court decision that my generation, or at least I was sort of conscious of.

This is the gay marriage, which is an extremely hopeful and important moment in our history, but the past the past, uh, eight years or so since then have, uh, seemed to pre. Seemed at least to, to us to prove many of the, uh, worst, uh, cynics on these topics. Right. And I worry that maybe if this decision comes to fruition, that my generation will write off the Supreme court as.

Relic of the partisan politics that hopefully we will reject. Hmm Hmm. And I don’t think that would be a good thing. I think it would be very dangerous for our democracy. Um, and, and I guess Steve, to some extent, that’s the position, our colleague Sandy Levinson is long taken, right. That the court is, is, is an institutionally conservative place.

Um, I don’t know if you have a response that I’m just wondering to Steve, any last thoughts on that? Cause I think with. Makes sense. So I, I mean, listen, I, I, this is where I think I actually ended up on the wrong side of a lot of Progressive’s, which is I, I understand exactly that mentality. And I think, you know, the, the danger to me is what are we, if we, if we, as a party, if we, as a polity, if we, as a sort of generation are going to right off the Supreme court, what are we doing?

Yeah. Um, and, and to sort of not to put too fine a point on it, but, you know, imagine a, a disputed presidential election that ends up in the Supreme court where only the court is in a position to resolve a clear political impasse where, you know, but for judicial resolution, we actually might risk open conflict.

Over the question of who is the actual, you know, duly elected next president of the United States. And, you know, there are folks who didn’t say, well, the law how’d that work out last time with, um, and you know, I will just say, um, I don’t like what the court did. Um, I think Bush versus gore is a really problematic decision, but as a matter of sort of avoiding civil war it succeeded.

Um, and that may be sort of pretty a pretty low bar to expect the Supreme court to clear. But if we’re, if, if in 2025, we’re at a point where, you know, the overwhelming majority of Democrats think the court is a completely illegitimate institution, then you know, what’s going to happen. If the election comes down to.

Um, you know, what what’s going to happen and indeed what’s going to happen if the court ends up throwing the election, whether legitimately or otherwise. Right? So whoever the Democrat, the Republican candidate is, um, and you know, I just, I never would’ve thought Jeremy 10, 15, 20 years ago, five years ago that we would so quickly get to this point where the Supreme court’s credibility really was, you know, in some pretty important respects for a whole lot of people hanging by a thread.

Um, and you know, I’m, I’m, as much as I understand the temptation on the part of so many to just cut that last thread, you know, I worry about what happens when you can’t get it back. Yeah. I think that’s compelling, Steve. I think our system depends upon having a court that although controversial at times, Uh, has the ability to convince a large number of Americans that it is playing fair.

I think that’s what we mean by legitimacy that it’s playing fair in that both sides have a chance, even if one side doesn’t get what it wants, uh, quite often. And if there’s no longer a perception of fair. Um, then it’s very hard to imagine that branch of government working in our system, and it’s hard to imagine our system working where we need all three bank branches to play, play that role.

Um, and so I think you’re right. And, uh, one of the things I find so compelling about your work, Steve, is that I think it’s motivated by that passion by that principle, which we need more than need more than ever. So. Thank you for sharing your time with us. Uh, Steve LATIC today. Thanks Jeremy. I think I increasingly worried I’m going to be the last one.

I’m going to be the last, you know, progressive defending the Supreme court as an institution. I’ll be there with you. I don’t know if historians count, but I’ll be, I’ll be there. I’ll be there with you to, to me, you know, that the court holds a special place for the few times. It has stepped forward and done.

Okay, thank you again, Steve. Thank you Zachary for your poem and thank you. Most of all, to our loyal listeners for joining us for this week of this is democracy

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