This is Democracy – Episode 268: Supreme Court

[00:00:00] Intro: 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.

[00:00:26] Jeremi: Welcome to our new episode of This is Democracy. Uh, this is a very special episode. Uh, every week is special, but this week is special because we have on one of our friends and someone I have very, very high regard for, uh, both as a scholar and also as a professor. public intellectual, uh, my friend, uh, Steve Vladeck, Steve was a, uh, colleague of mine at the University of Texas, uh, School of Law.

[00:00:50] Jeremi: He has moved, uh, to Georgetown, he is now a professor of law at Georgetown University, the author of a New York Times bestseller, The Shadow Docket, and, uh, also [00:01:00] the author of one of my favorite substacks, one that’s actually inspired our substack, called One First, uh, Steve Vladeck, thanks for joining us today.

[00:01:07] Jeremi: Thank you guys for having me. Nice to actually see you. Yeah. We’re all in the same room. This is extraordinary. We, we, we found out that we were in the same small town in Massachusetts at the same time. It’s amazing. We’re seeing each other more now than when we were both in Austin. Uh, and of course we’re joined by Zachary, uh, as, uh, Always.

[00:01:25] Jeremi: Our topic today is the obvious one, the Supreme Court. This has been a monumental, and I can safely say as a historian, a term for the Supreme Court that we as historians and scholars and citizens will be looking back on and making sense of for many, many years. Steve Vladek is with us today to help us begin to make sense of it.

[00:01:45] Jeremi: This is the first draft of History we’re doing here. And, uh, Steve is going to help us at least make some sense of this. And, uh, we’re around the July 4th holiday, so there could be no topic that could be more important as we’re thinking about the nature of our society and the principles of our [00:02:00] democracy.

[00:02:01] Jeremi: What does that institution that is in some ways the fiduciary for those principles, what does it tell us about where we are today? We will start, of course, with Mr. Zachary’s poem. Let’s, let’s hear your poem, Zachary.

[00:02:13] Zachary: Voices. As a child, I used to listen to the president on the radio, and I believed every single word, speaking with a voice I could trust, a sincerity I could almost feel.

[00:02:25] Zachary: As a child, I saw a hundred polling places in libraries and churches and schools, standing on father’s feet to press the button in the voting booth on a rainy afternoon. As a child, I watched the results from every election with bright eyes. Mother saying to me when it was over that she knew the future was secure.

[00:02:45] Zachary: And then, in shock, we saw the votes come in. We sat on the couch that night and slept in. His was a voice of lies on the radio that echoed in our voting booths, saying that, saying the future was a scary place that we had better [00:03:00] exchange for the past. He has returned from the past. And is eating us alive.

[00:03:05] Zachary: He has returned like a relic from his own archive. He has returned emboldened and determined to cheat, and the black rolls just whisper

[00:03:19] Jeremi: I like your sarcastic French, both figurative and literal at the end there. Zachary, what is your poem about, particularly the end of the poem?

[00:03:26] Zachary: My poll is about, um, how at least in hindsight, it can seem like in the last 10, 15 years of my political consciousness, that trust in our political institutions, uh, from the presidency to the Supreme Court has just sort of collapsed.

[00:03:40] Zachary: And that we’re in a moment when it seems like there’s very, there are very few voices to trust. Um, and we’re sort of lost, I think, and we, we don’t necessarily have, um, institutions to turn to that we can trust in the same way and how disorienting that

[00:03:56] Steve: is.

[00:03:56] Zachary: Steve, do you

[00:03:56] Steve: agree? Yes. I mean, I think the real, to [00:04:00] me, takeaway, not just from the Trump immunity decision, but from the Supreme Court’s whole term is that we’re in a very, very perilous time for our institutions.

[00:04:08] Steve: Um, for our institutions from the sort of democratic perspective for institutions from a separation of powers perspective and you know, what I was I think most shocked by about the Supreme Court term is how uninterested the justices seem in the perilousness of the times were, um, you know, whatever you think of the merits of any of these rulings.

[00:04:29] Steve: I mean, of course, sort of leaned into all of it, right? As opposed to actually trying to do anything to you. Forge a consensus to be above the political moment, to try to actually bring folks together. And so I think that the poem is quite,

[00:04:43] Jeremi: I am surprised Steve, because it did seem to me early on as, as a non expert observer that members of the court actually cared about their reputation.

[00:04:52] Jeremi: I remember you were the one who pointed this out to me when, uh, Justice Alito responded to some of your writings and called you out for [00:05:00] criticizing the shadow docket. So that indicates to me that, that they do care about what lowly intellectuals and academics think.

[00:05:06] Steve: Yeah. I mean, I guess care Jeremy versus.

[00:05:10] Steve: upon it. Right. I mean, I guess, you know, this is sort of getting into the weeds, but I’m really a bit. Mind boggled. Um, but my mind is boggled by, um, by Chief Justice Roberts. Um, you know, if you look at the court’s decisions, look at the overall voting patterns this term, you know, we had thought, I had thought that he’s a, you know, he’s a dyed in the wool sort of Reagan era conservative who nevertheless cares and cared about the Supreme Court’s, you know, public perception and the institutional, uh, Support for the, for the court.

[00:05:44] Steve: Um, and so when Kennedy retired in 2018, right, he’s the median who actually forges some narrow rulings. Um, in the two Trump cases in 2020, he writes for seven, two majorities, right? I mean, in the Dobbs case, he doesn’t want to overrule [00:06:00] row that to me is John Roberts institutionalist. Where the hell was he this term?

[00:06:04] Steve: Right. You know, he writes the majority opinion in the Trump case where he was clearly the median vote because Barrett’s to his left. Um, he didn’t write, or at least he didn’t put his name on the majority opinion in the Colorado ballot disqualification case, but Barrett again was to the left of that opinion, um, overruling Chevron without any humility about the sort of the exercise of judicial power that reflects.

[00:06:29] Steve: He wrote that opinion too. And so I just feel like, you know, The real story of the term from a personality standpoint. Is, you know, John Roberts has kind of gone hard MAGA. Hmm. Um, or at least soft MAGA, MAGA curious. And, and I think that’s a really onerous sign. Yeah. Because I had thought, you know, Amy Coney Barrett might be the fifth vote.

[00:06:52] Steve: Right. In the rule of law cases we care about. Now she’s only the fourth. Right. is. Right. That’s a scary proposition.

[00:06:58] Zachary: Why do you think that is? What, what is [00:07:00] your sense of why Roberts has shifted so far, right? I mean,

[00:07:03] Steve: Zachary, I wish I knew, um, you know, in his writings, his, you know, he’s, there’s, there’s impatience for a lot of the people on the other side.

[00:07:14] Steve: Um, the majority opinion in the immunity case is sort of frustrated at how quickly things were moving. Um, you know, I don’t have a good answer. Um, maybe just, you know, he thought that the code of conduct, remember the court issued back in November? Was supposed to be this like big moment. And instead he got, you know, raked over the coals even further for it.

[00:07:37] Steve: Um, I don’t know if it’s also that like, he really is turning to the right or if he’s trying to accommodate some interests we can’t see, but you know, that for better or for worse, um, this is, it’s, it’s the Roberts court, not just in name. It’s the Roberts court, because he’s going to be the one who can push the court just because of where he is between.

[00:07:59] Steve: Right. Thomas [00:08:00] Alito Kavanaugh and, you know, Kate and Sotomayor Jackson and Barrett, right? Um, and I don’t know why he’s doing this, but I think, you know, if you can step back from the individual rulings, that’s what gives me pause about what’s happening with the court going forward.

[00:08:16] Jeremi: To, to turn to some of the individual rulings, because I think it’s worth, uh, explicating what they’re about.

[00:08:21] Jeremi: Uh, the one that jumps out, of course, the presidential immunity ruling. What does that really say? Right. Right.

[00:08:27] Steve: Uh, it’s a good question. I’m not sure even John Roberts knows. Um, so it says, I think, four different things. Um, two of which I think are actually not that controversial. And two of which are right.

[00:08:39] Steve: So it says, um, first that there’s like a core area of preclusive executive power. And when I hear preclusive, I hear Brett Kavanaugh. That was his whole thing. Um, where, of course, the president can’t be prosecuted. And here the idea is like, when the constitution expressly gives the president the power to do something, right, it [00:09:00] can’t be the case that he can be tried for using that power.

[00:09:02] Steve: So, pardons, right? A pardon can’t be a crime. Now, receiving a bribe to issue a pardon could be a crime, but the pardon itself, right, that’s protected. Um, so that’s the one. And, you know, I think we as a constitutional system could live with the one. Then Robert says there’s an area of, um, official acts, not core constitutional powers, but things the president does while he’s wearing his hat as president for which there’s a presumptive immunity.

[00:09:32] Steve: Um, but that presumptive immunity can be overcome, right? That presumption can be displaced. If you can show that the conduct at issue wasn’t actually central to his ability to discharge his duties. Then there’s a category of unofficial conduct. Who knows what that is, right? Robert’s

[00:09:50] Jeremi: doesn’t tell us. No, there’s a footnote from Barrett saying that trying to get fake electors is not official content.

[00:09:56] Steve: I mean, Barrett’s opinion, I mean, Barrett’s, Barrett’s opinion is in some [00:10:00] respects, a roadmap for Jack Smith, right? About like, Hey, here, Hey, Jack Smith, here’s how I understand the opinion I just signed on to. So there’s unofficial acts that the majority opinion doesn’t elaborate upon that Barrett in her concurrence does.

[00:10:11] Steve: Um, and those are, you know, All systems go, but then there’s this fourth part. So, so like one in three, like I’m okay. Right. But then there’s this fourth part and the fourth part is this evidentiary holding right where Robert holds on behalf of the majority that even if the underlying crime. Relates to unofficial acts where there’s no immunity where the president can be prosecuted on prosecutors.

[00:10:35] Steve: Can’t use as evidence official acts right and so, you know stuff where the underlying if basically if the if you if you couldn’t have Prosecuted the president for something you can’t use that thing as evidence of something you can prosecute for So just to take an example, right? Um, President orders a drone strike.

[00:10:54] Steve: Okay? Um, There’s a debate about whether the drone strike was against a [00:11:00] real military target based upon actionable intelligence, or whether it was retaliation because someone said something mean to the President on social media. Right? How do you prove which is which? You need evidence. Right. One of those is a crime.

[00:11:13] Steve: One of those is not right. One of those is actually like a huge issue. One of those is not

[00:11:17] Jeremi: right.

[00:11:17] Steve: And yet I worry that the majority opinion is going to make it very hard in the real world, right. To distinguish between those two things.

[00:11:23] Jeremi: As I read the majority opinion, that seemed to me to be quite unusual.

[00:11:27] Jeremi: Yes. Are there. Other examples where the court has made similar evidentiary limitations?

[00:11:33] Steve: So, I mean, what’s bizarre about this is there already is, right, this thing called executive privilege. I mean, Jeremy, you know, you know about executive privilege. Um, and I don’t know why you needed anything further. I mean, so presumably the court could have said, they could have said nothing more than obviously ordinary principles of executive privilege would apply in a prosecution for unofficial acts.

[00:11:55] Steve: We have a whole lot of, you know, we have 50 years of case law, um, fleshing [00:12:00] out what exactly privilege covers what it doesn’t. And the court could have said, so, you know, if the president’s having confidential communications with his advisors, maybe you can’t admit those communications as evidence, but they went so much further.

[00:12:14] Steve: It’s not clear to me why they went further. Um, and so even if you are sort of, you know, not all the way in the, um, no immunity camp, right, it still seems like the sort of the Barrett concurrent saying, Whoa, why we shouldn’t be doing this should set off alarm bells.

[00:12:31] Zachary: It seems to me that in particular, in this case where the court is doing is, is throwing out, or at least ignoring or moving beyond.

[00:12:37] Zachary: Sort of longstanding precedence. Um, first of all, how unprecedented are those moves and what does that do to the legitimacy of the court moving forward? I

[00:12:46] Steve: mean, Zachary, it’s such a good question. I guess part of the problem, you know, we are told often that there’s this, you know, amazingly objective methodology for interpreting the constitution called originalism, and [00:13:00] that part of what makes originalism so compelling is that it You know, objective, unitary answers to hard constitutional questions that, that you have to just work originalism supple to get the right answer.

[00:13:14] Steve: This is a decidedly unoriginalist majority opinion, right? Roberts does not make a lot out of founding our sources when it comes to the potential that a president would have

[00:13:23] Jeremi: immunity. It’s very thin actually, as a historian, I mean, the citations are, you know, less than a graduate student paper. Correct.

[00:13:30] Jeremi: Correct. Correct. Um, I would even say maybe

[00:13:32] Steve: the high school kid, right? And so I guess it’s not, I mean, what, what I think is unprecedented. I mean, this was all unprecedented. We’ve never had a Trump, right? I mean, like for all of the efforts of folks on TV to say, Oh, well, you know, FDR interned Japanese Americans and Obama used a drone to kill.

[00:13:49] Steve: an American citizen. Like yes, those were I think in some respects, very controversial policy choices. That is, can we just say, that is not the same thing as trying to overturn the results of a democratic election. [00:14:00] I mean, if we can’t distinguish between those things, we’re stuck. Um, So, you know, part of the problem is that, you know, Zachary, in a sense, this case was always going to pick new law.

[00:14:10] Steve: I just think that the court, um, gosh, just grasped onto principles that have the feel more of sort of how a drunk uses a lamppost. This is Andrew Langland, not mine, right? For support, not for illumination. Um, just one example, right? The majority opinion says, um, we’re not going to worry about motives. You know, can’t introduce evidence of the president’s motive.

[00:14:33] Steve: Like motive is out. Well, let’s deconstruct that for a second. So that’s coming from the civil liability side where Nixon versus Fitzgerald, the 1982 case that says presidents are absolutely immune from civil damages for acts within the outer perimeter of their official duties. The reason why motive is out there is because the whole purpose of the immunity in the court recognizing Fitzgerald was to, was so that the president would [00:15:00] win at the motion to dismiss stage of a lawsuit, right?

[00:15:03] Steve: If I allege Jeremy, if Jeremy is the president and I allege that he did something for illicit motive and I have some plausible reason, maybe he tweeted about it, right? Um, I’m going to survive the motion to dismiss if motive is part of the case. Because I can’t prove his motive until I put him in front of a jury.

[00:15:22] Steve: Right. And so in the civil contest, it actually makes sense that we throw out motive because it would be incompatible with the way pleading rules cash out to have motive inquiries, but also an absolute immunity. Criminal cases are nothing like that, right? Like criminal prosecutions. There’s no, you know, there’s no discovery, right?

[00:15:45] Steve: There’s no sort of pretrial. I mean, it’s just. So it’s basically Zachary, unprecedented in the court, sort of looking for ways to prop up, um, a result that it clearly wanted to reach. And I’ll just say, like, I think it would look a [00:16:00] lot different as we sit here, I mean, we’re recording on, you know, Wednesday.

[00:16:04] Steve: I think it would look a lot different two days out. Um, if they had sort of just taken the narrower line that Barrett should want, right, right, right. A majority opinion that says, listen, this is not a big deal. This case is going to go forward. You know, the Trump’s lawyers have already conceded that a bunch of the stuff in the indictment is unofficial, right?

[00:16:22] Steve: You know, don’t get mad at us. We’re just, we’re just drawing a line to protect future presidents. Like if that had been the opinion, We’d be having a very

[00:16:29] Jeremi: different conversation right now. Right. So, just to take on some of the allegations that have been made about the opinion, does it allow the president to send SEAL Team 6 in to assassinate him?

[00:16:41] Steve: I

[00:16:41] Jeremi: don’t

[00:16:41] Steve: know. I mean, I, look, I, I just, I don’t, I mean, so, I mean, let’s back up. Of course it, the short answer is no, it doesn’t. The question is can the president be prosecuted if he does that? Mm hmm. Because, I mean, I sure would hope, even with as toxic as our current politics are, I don’t know. That a president who did that actually would be impeached and removed by, you know, by Congress.

[00:16:59] Steve: That’s [00:17:00] still there. Um, you know, Sotomayor raises this hypothetical in her dissent. And Robert accuses her of hysteria, but never explains why she’s wrong. Right. And like, like a, one would think that if he had a compelling answer for why, obviously that’s not, you know, that’s not what we’re saying, he would have said it.

[00:17:17] Steve: Right. The problem again is twofold, right? One, what’s the line between official and unofficial? Right. And how are you going to prove that line if you can’t, one, get to the president’s motive, and two, introduce acts that are themselves immunized. And so does this make the president more of a king? Yes. I mean, yes.

[00:17:35] Steve: I, I, you know, I don’t, you know, I don’t even, I don’t think it makes him a king, right? Um, but it makes him more of a king. And, and especially I would say, A second term president, right? Right. Because a first term president has one great constraint that a second term president doesn’t, which is the upcoming election.

[00:17:52] Steve: We look at what’s going on right now with Joe Biden. Right. Right. This is a much bigger issue for second term presidents, for presidents who by [00:18:00] dint of the 22nd amendment. are precluded from running for a third term.

[00:18:03] Jeremi: And that’s then what I really don’t understand about the motives of Roberts and others, because this then becomes a hammer that can be used by Democrats as well as Republicans.

[00:18:13] Jeremi: Let’s say we don’t know at this moment if Joe Biden is going to stay in the race or not. Let’s say he decides not to run for re election. He’s got, he’s got like six free months. Exactly. I mean, and this, this would enormously empower him.

[00:18:25] Steve: I mean, I think, I think we all, you know, We all know enough to know that Joe Biden wouldn’t view that as sort of carte blanche to go on a crime spree.

[00:18:34] Steve: Um, but I mean, I think the question is why is that an incentive you want to create in the first place? Right. And that’s just the part that it just, I, I, I am puzzled beyond all puzzlement. By, you know, not why Thomas Alito and Gorsuch are there. And frankly, not even why Kavanaugh is there. I mean, Kavanaugh, you know, if folks remember Kavanaugh, like before Christine Blasey Ford became the story of the Kavanaugh confirmation, it was a referendum on [00:19:00] having the most radical defender of executive power, you know, that the court had ever seen.

[00:19:05] Steve: He had, those stripes have always been there. Right. It’s the chief again. And, and so someone asked me the other day, like, do I think that the chief went this far? Because he had to try to keep Thomas and Alito and Gorsuch on side. And I pointed out to them, who’s keeping who on side? He was the fifth vote, right?

[00:19:22] Steve: If he thought it

[00:19:22] Jeremi: was going too far, Like he could have stopped it. Absolutely. Absolutely. And just as a side note, I can’t help, but inserting this when, uh, when the immunity case came before the court, uh, justice Kavanaugh made the case or made the argument that all historians, I think was his words that he used, believe that not prosecuting, uh, Nixon and pardoning Nixon was the right thing.

[00:19:45] Jeremi: In fact, most historians think just the opposite, right?

[00:19:48] Steve: But also I think all historians agree. That prosecuting Nixon was a possibility.

[00:19:54] Jeremi: Absolutely. And that forcing him to release the tapes was the right decision. It would seem to me [00:20:00] this court decision would have reversed that. I mean, not only that, it’s not clear to me that Nixon could have been

[00:20:03] Steve: prosecuted for anything.

[00:20:05] Steve: I mean, right. As a, as an undetected co conspirator in the Haldeman prosecution, I’m not sure that would have survived. Um, the tapes themselves might not have been the basis for a prosecution for anything, because. What Nixon would have claimed it

[00:20:20] Jeremi: was all an official act. In fact, he did claim that. And he lost.

[00:20:22] Jeremi: Yeah. Nothing. My gosh. Let’s turn to Chevron, if we could, and the administrative. No, that’s a more uplifting thing. Yeah, there we go. And the administrative state. This also, to me, as a non expert, Steve, Seems like an incredibly far reaching decision.

[00:20:37] Steve: Yes.

[00:20:37] Jeremi: Um,

[00:20:38] Steve: well, so I would say it’s actually, I would say it’s three incredibly far reaching decisions that are being bundled into one, right?

[00:20:45] Steve: So, um, the court really issued, I mean, actually four, but the fourth one’s more application, right? If you include Loper bright, which is the decision over William Chevron. Um, corner post, which is the decision that basically says we [00:21:00] can go backwards however long we want to revisit agency. Right, right. And then this technical, but important sec case called Jarkzy, which is about why, um, the government can’t do civil enforcement without a jerk, right?

[00:21:14] Steve: The real sort of upshot of all three of these cases is not to destroy the administrative state, that’s a little bit of a hyperbole. But to sort of to destabilize

[00:21:23] Jeremi: it,

[00:21:24] Steve: where, you know, now there’s this massive uncertainty about whether powers agencies have claimed for generations. Um, and certainly anything new, um, will survive judicial challenge.

[00:21:35] Steve: Whereas in the past, we might’ve had some confidence that, you know, barring some really egregious behavior by agencies, what they were doing was going to be upheld. And, you know, we live in an era. I mean, you know, I just moved from Texas. You are permanently in Texas. Sorry. Um, but we lost in Austin. We live in it, but we live in an era where litigants have gotten very good at steering their [00:22:00] challenges to administrative rules to judges who are most likely sympathetic to hear them, many of whom are in Texas.

[00:22:04] Steve: to one in particular, one or three. Right. And so, you know, to me, the, it’s sort of, there’s the, there’s the act of overruling Chevron itself, which is a remarkable assertion of judicial power. And then there is this, the massive transfer of power from the democratically elected branches to the courts. Right.

[00:22:21] Steve: That’s going to result because now, instead of saying, you know, Hey, what’s the agency reasonable. Now the question is, what’s the agency, right? And that’s a question that courts are going to decide, and courts are going to decide however it is he fit, right, without any deference to what the agency did. And what was the constitutional

[00:22:38] Zachary: basis for this, uh, assertion of judicial power?

[00:22:41] Zachary: Was this an attempt to return to the originalist

[00:22:43] Steve: argument that they Yeah, I mean, so, so the, the, the sort of the, the, the modern conservative opposition to Chevron, and it’s, it’s modern, I mean, right, in the 80s, conservatives were the, were the champions of Chevron. The modern opposition. Um, is actually one that Roberts does not endorse [00:23:00] in the majority opinion in local right.

[00:23:01] Steve: So the moral position is that it’s actually a violation of Article three, um, that part of the Constitution that gives the judicial power to the courts. So the modern argument was that, um, giving this power to agencies, agencies, agencies, You know, to almost override courts to say, you know, even if you would say this, we say this and we win the argument was that that was a violation of the judicial power of the vestum of the judicial power.

[00:23:22] Steve: Um, that’s not what the majority relied upon in Loper bright. Instead, the majority arguments based on where I think are two fictions. So the first fiction is that, uh, agencies are not democratically accountable. Right. Um, you know, uh, there are so many ways that that’s not true, but let’s, you know, the Supreme Court itself has spent the last 15, 20 years making agencies more accountable.

[00:23:48] Steve: Um, if we look at the actual agency in Loper Bright, right, uh, what is it? The fishery service, um, right. That is run by someone who has an amazing title, the assistant administrator for fisheries. [00:24:00] Um, she has no independence, right? Right. She, she served at the pleasure of the secretary of commerce, the secretary of commerce serves at the pleasure of the president, right?

[00:24:09] Steve: If anyone is actually exercised about what the fishery service is doing, There’s nothing stopping the president from making one phone call and getting rid of the head of the fishery service. Right? So the notion that there’s no democratic accountability there is just bollocks. The other problem is, you know, the fiction that I think a lot of conservatives tell them, uh, tell themselves is that, um, we’re transferring power from unaccountable agency to Congress and Congress is much more accountable.

[00:24:39] Steve: Well, so two problems with Congress, none of which will be news to you. Um, one, have you met this Congress, right? Like the, the sort of the gridlock of our modern Congress makes that sort of a practical impossibility. But even like a, even an ideal, like optimally designed Congress has nowhere near the capacity [00:25:00] to make the kinds of micro level decisions.

[00:25:03] Steve: I mean, there are 450 federal agencies, right? Even if Congress did one a day, it wouldn’t get to all of them. And so the fiction here is that like, we’re just transferring power back to the people. No, we’re transferring power to the courts.

[00:25:15] Zachary: And what’s the implication of asserting so much power for the judicial branch in a moment Uh, public trust in the judicial branch is at such a historic low.

[00:25:25] Steve: I mean, so this is, it’s such a good question. And I think the short answer is it’s going to mean more and more, um, how do I say, division, more polarization when it comes to public perception of the courts. Because now increasingly you’re going to have judges doing whatever they want. So, so as opposed to the judge who says, I don’t love what this agency is doing, but I’m duty bound to uphold it because in my view, it is a reasonable exercise of its statutory authority.

[00:25:53] Steve: Like that’s judging and that kind of ruling. We probably don’t care if that judge is a democratic appointee or right. And right. That’s just a faithful [00:26:00] judge. Do you own faithful judging versus, Oh, well, I think this is illegal. Right now, people are going to start looking to, well, who appointed that judge?

[00:26:07] Steve: And so I think this is going to further ratchet up the public, um, perception and the sort of the public concern that judges are partisans, um, whether or not they are, I mean, even the judges who are just, you know, have principle disagreements with you and me. Sure. And I think exactly the long term effect of that is further erosion in public trust in the judiciary.

[00:26:28] Steve: And so the irony is that we’ll have more and more and more and more judicial power until they get to a certain point.

[00:26:35] Jeremi: And so this takes us back to one of your earlier points, Steve. I mean, it does seem to me that That John Roberts, at least, is a sincere institutionalist and a sincere believer in what used to be called judicial restraint.

[00:26:48] Jeremi: Right? I mean, the whole argument that the Roberts generation, the Reagan Federalist Society generation comes out of, right, is the criticism that the Warren court has gone too far. And that a group of [00:27:00] judges, and I think they look to, uh, Justice Brennan, probably, and Mark, Justices Brennan and Marshall, as the examples of what they see as an over activist set of, uh, judicial actors.

[00:27:09] Jeremi: They see themselves, uh, as restoring limits to what judges will do. How is it that they end up where they are now,

[00:27:16] Steve: then,

[00:27:17] Jeremi: Plea?

[00:27:18] Steve: It’s that they are vindicating the true original purpose of the Constitution. And that, at least, and, and so, I will say, I mean, like, there’s, there’s more than nothing to the argument That that the Constitution was meant to empower the courts to do something right, like pure judicial restraint, I think, is not actually right or originalist, although they came close to arguing for that.

[00:27:42] Steve: Um, but I think that the problem is, is that just as it takes a theory to be a theory, I mean, right, like the, you know, the modern court, the sort of the post New Deal court. Um, was based on a theory and the theory was, but no for a caroling products and the theory was that like [00:28:00] we should be restrained except in three circumstances, except when a law is directly infringing on a constitutional right, except when a law is subverting our democratic processes where the, the, the respect we owe to democracy is eroded or except where you have laws that are interfering with discrete and insular minorities.

[00:28:21] Steve: You know, there are problems with the footnote four theory, but it was a theory, right? I don’t know what the theory is today, other than, you know, um, whatever originalism tells us today, the answer is, except when we don’t like it. And that’s not a theory, that’s just a political platform. Right,

[00:28:37] Jeremi: right. And that’s what it looks like, it seems to be.

[00:28:39] Jeremi: What about the decision on the January 6th insurrectionists? Um, that’s another important decision this court made, right?

[00:28:45] Steve: Yeah. You know, I, I may, this is where I may, I may get in trouble with everybody. I, I am not. As I’m not as troubled by the substance of what the court so that case is about the scope of a federal criminal obstruction [00:29:00] statute that Congress passed in the wake of the sort of Enron Worldcom accounting scandals.

[00:29:09] Steve: Um, and you know, this is, this is part of why I really am getting, I’m really, uh, impressed by Justice Jackson. So she concurred, right? So John Roberts has a majority opinion. That says, hey, federal prosecutors, you have been, you know, uh, uh, embracing too broad a reading of this obstruction statute. It’s not obstruction of any official procedure, and it’s a particular kind of obstruction.

[00:29:35] Steve: Um, and, you know, I think, so Justice Barrett wrote the dissent for herself in Kagan and Sotomayor. If you’re a textualist, and Barrett is, um, the majority opinion is nonsense. Right. I mean, the, the, the obstruction statute issue is very broad and open ended, but sometimes Congress writes broad and open ended statutes.

[00:29:54] Steve: Like that’s just what they do. And Barrett says like, Hey, you know, I may not have written this statute, but I can [00:30:00] read it. Right. Right. But Jackson’s concurrence says, but I’m not a textualist. I am a purposivist. And I, Jackson, right? I totally get the argument that Congress, when it wrote the statute in 2002, was not thinking about sort of anything beyond this particular type of obstruction of withholding evidence, destroying evidence, manipulating the record, right?

[00:30:22] Steve: Sort of doing something to sort of make it impossible for the procedure to actually do the thing it’s supposed to do. Um, So if Jackson had written the majority opinion, this would look different. The problem is, is that it’s John Roberts writing an opinion that tries to be textual. It’s in the context within which the text is pretty clearly the other way.

[00:30:39] Steve: And the one other thing, and I wrote a piece for CNN about this, it’s not a major decision with regard to the effect it’ll have on the statute. Most of the January 6th defendants are going to still be convi Like, on remand, you know, maybe there are going to be 5 or 6 or 10 out of the 1, [00:31:00] 000 defendants who get off entirely because of this.

[00:31:04] Steve: Maybe there’s another dozen who get slightly lighter sentences. At the end of the day though, like these cases are not going to change that much. What message did the court send though? Right. So John Roberts could have written a paragraph that says before, you know, just to be clear, this is a modest decision.

[00:31:20] Steve: Right. We are not, you know, throwing out the statute. We are trimming it. He didn’t. And you know, shocker of all shockers, right? Right wing media is like, Oh my gosh, exoneration for the January 6th defendants. You know, the Supreme Court today endorsed the view that the Biden administration has been engaged in lawless persecution of political prisoners.

[00:31:40] Steve: You know, the right wing media is going to do what it’s going to do. But the court should have known that that was coming, of course, and did nothing to insulate against it.

[00:31:49] Zachary: And lastly, uh, the case that perhaps is more in line with public opinion, the Idaho abortion case. What do you make of that decision?

[00:31:56] Zachary: Oh,

[00:31:57] Steve: Zachary. Um, so I [00:32:00] mean, the Idaho abortion case, you know, one of the things that has made this court so frustrating is that, um, it’s lowest egregious errors are usually procedural. Um, and trying to get folks out in the world to care about the court not following its own procedural traditions is hard.

[00:32:20] Steve: Um, so one of them, right, is the idea that the court says all the time, we are a court of review, not first view. Um, and they say that all the time to justify, you know, sending cases back to the lower courts, not reaching issues that weren’t raised below, not deciding novel questions, like, you know, we want issues to percolate, they say.

[00:32:37] Steve: And just a side point, you pointed out they’re doing fewer cases now than ever before. That’s right. So, so take your time, everybody. And then that way we, we can pick only the very best apples and we can be sure that they’re great. And something in the last five years has happened is the court has stopped doing that.

[00:32:52] Steve: So even as they’re taking fewer cases, this is the fifth term in a row that they didn’t even get to 60 marriage decisions before five years [00:33:00] ago. The last time that it happened was 1864. Um, those were other things were happening. Um, but in the cases they are taking, right, they are jumping way the hell over ordinary procedures.

[00:33:12] Steve: So the Idaho abortion cases, You had, um, just to, for folks who don’t know the background, there is now a conflict between the abortion bans in some of the states that have the most restrictive regimes and a federal statute called EMTALA. Um, if you’ve ever heard of EMTALA, it’s the statute that basically requires any hospital that receives federal Medicare or Medicaid funds, which is basically all of them, um, to provide treatment.

[00:33:39] Steve: For anyone with what’s called an emergency medical condition, regardless of your ability to pay. So if you show up at a hospital with a broken arm or a broken leg or an even more serious medical emergency, they have to treat you first and figure out what, you know, who you are, what you did, whether you can pay for it later.

[00:33:56] Steve: Really important statute, especially in the South. [00:34:00] Um, and it was passed in the 1980s, right, because there was such a gap in the emergency healthcare that was available to people with MEVs and people without MEVs. Well, so imagine that you are presented to an emergency room with an emergency medical condition and the stabilizing treatment that the hospital’s required to provide is an abortion, right?

[00:34:18] Steve: You have, let’s say, an ectopic pregnancy. That has led to a rupture of your fallopian tube, um, right. Or some other sort of condition in which the, the pregnancy is the cause of the condition. And maybe the fetus can be saved and maybe it can’t be right. So in those contexts, and Tala says, Hey, doctors cured, you know, cure not stabilize the patient first.

[00:34:42] Steve: And we’re everything else later. And in states like Idaho and Texas, um, the states have said, nope, felony go to jail for 10, 15 years. Because the medical exceptions in those state of working bands just say only where necessary to save the pregnant woman from immediate death. Um, so I, you know, we can [00:35:00] imagine circumstances in which the pregnant woman has an emergent medical condition, but is not in an imminent risk of death.

[00:35:08] Steve: And where if the state laws trump the federal law, um, she has to just sort of keep being emergent and not be a non stabilized. Anyway, so the federal government sued Idaho and said, this is insane. Um, and a district judge in Idaho agreed and enjoined that small part of the Idaho abortion ban that is inconsistent with EMTALA.

[00:35:29] Steve: The Supreme, so Idaho appealed to the Ninth Circuit, federal appeals court. The appeals marching along the way it usually does. And then when the Ninth Circuit refused to freeze the injunction, which just to be clear, right, was only allowing like a teeny tiny number of abortions in Idaho, not sort of refuses to freeze the injunction.

[00:35:47] Steve: The Supreme Court stepped in, um, and it did two things. It, it should just say, so putting the Idaho law fully back into effect. And it granted something called certiorari before judgment. So it took up the case before the ninth circuit had even had a [00:36:00] chance to hear it. Um, and that was like a remarkable power grab and it led a lot of folks to worry that the court was going to do something really, really like insidious and say, actually the state, you know, abortion bans are fine to help with federal statute.

[00:36:14] Steve: Well, what did the Supreme court end up doing? It dumped the case. It, it, the, the, the, the term in Supreme court, it digged. The case it dismissed as improvidently granted the written certiorari, um, and basically said, Oh, whoops, we should never have done this. Right. We should have let this case walk through the ordinary appellate cycle are bad.

[00:36:35] Steve: Like, sorry, Idaho. Um, and you know, compared to like, just getting rid of the injunction altogether, this is a better result, but it just, it is so revealing of the hubris of the court. That they, you know, jumped over everybody, thought they would decide this case. And then when they were actually presented with the facts and the legal arguments, they’re like, Oh, actually, this is hard.[00:37:00]

[00:37:00] Jeremi: We’re not, we’re not sure what to do. So the question I really wanted to ask you, Stephen, I think the question will close on. Uh, there have been moments in our history when the Supreme Court fell into disrepute. Andrew Jackson’s presidency, uh, the early parts of, uh, Franklin Roosevelt’s presidency. Yeah. Uh, cases where the court went so directly against public opinion, whether we think it’s right or wrong in retrospect, that you had executives, ironically, perhaps over empowered executives, which the court has now supported, saying, as, as Jackson apocryphally is alleged to have said, you know, the Chief Justice has made this decision, but let’s see him try to enforce it.

[00:37:39] Jeremi: Are, are we reaching that point? Yes. Because the court’s power is, is perceptual more than anything, right?

[00:37:43] Steve: Yes, although I’m going to say something that I think won’t surprise either of you, but it might surprise listeners. Um, I think it’s a much bigger concern from the right and the left. Um, and what I mean by that, I agree.

[00:37:53] Steve: Um, right. So, um, I think one of the most important things that happened this term got almost no attention outside of [00:38:00] Texas. Um, in January, um, in one of those unsigned unexplained emergency orders about which, you know, I wrote a book, um, the court put back, uh, or basically the court, I don’t want to get all the way into the details, but the court basically said, Hey, Biden administration, Yes, you can remove the razor wire that governor Greg Abbott is placing along the US Mexico border.

[00:38:20] Steve: Um, and the ruling was five to four and there was no majority opinion and there were no dissents. So we have no idea why it was just by the administration. You want to remove the razor wire? Go ahead. Um, chip Roy, um, right. A Republican congressman from right outside of Austin, um, former chief of staff to Ted Cruz.

[00:38:37] Steve: And I think, you know, not, um, not necessarily speaking only for himself. Um, it goes on national television, it goes on Fox News, and it says Abbott should defy the Supreme Court, um, and Abbott should ignore the Supreme Court for too long. Now, you know, Abbott, I mean, I guess to his credit, I guess we’ll give him a participation trophy, didn’t, um, partly because there was nothing to defy.

[00:38:59] Steve: Right. [00:39:00] But, you know, that should have set off alarm bells. That someone like Chip Roy at that moment is going on national television and telling, you know, Greg Abbott to ignore the Supreme Court. Um, because the next time if it’s not Chip Roy, if it’s Donald Trump, um, or, you know, if it’s a Supreme Court ruling against Donald Trump and it’s Greg Abbott going on television to tell folks to defy the Supreme Court, you know, I’m really worried about who’s going to be left to defend the court.

[00:39:30] Steve: Cause the court has done so much damage to its credibility among progressives. And I think it’s done so much sort of to destabilize its ability to speak to the whole country at once. That if, you know, Donald Trump gets the, the sort of the, the right wing of the Republican Party, however large or small that is, to likewise turn against the court if the court tries to stand up to Trump during a second presidency.

[00:39:54] Jeremi: Who’s left? Right. Right. It’s a really, uh, scary question. Zachary, to close with [00:40:00] you, um, you know, I grew up and Steve grew up in a time when the court had utmost respect. Many of us disagreed with the, uh, Bush v. Gord decision in 2000. And I think there are many reasons to disagree with Scalia’s reasoning, but we respected the court.

[00:40:15] Jeremi: No one that I heard said we should defy the court after the Bush v. Gore decision, right? We grew up believing the Supreme Court was imperfect, but was this venerable institution. You’ve grown up in a different setting. Where does your generation go? Big

[00:40:29] Zachary: question. I think, I think that, uh, my generation is definitely in a place where we’ve lost most of our trust, uh, in the Supreme Court.

[00:40:38] Zachary: But at the same time, I do think there’s a real interest among young people in these constitutional questions and in constitutional law. And they see the importance of, uh, of an institution like the court, but they have no faith in the people who are actually doing it. on the court today, or they have no faith in the, in the, uh, institution as it currently stands.

[00:40:55] Zachary: And I think that’s a very, on the one hand, it’s a very bad sign because it means that the [00:41:00] court is losing legitimacy among young people, but it also means that there’s space for serious reform. And it’s not necessarily the death of the court or of any sort of like judicial, uh, power in the United States.

[00:41:10] Zachary: It’s It’s an opportunity and a demand for reform.

[00:41:14] Jeremi: Well said. I hope that we will soon have Steve back on to talk about exactly that topic, something he spends a lot of time working on, reforming the court. And the hopeful, uh, insight is that reforming the court doesn’t have to be hard. Congress can do this by legislation alone.

[00:41:28] Jeremi: We do not need to amend the Constitution. We need some political will. We need some political will. That’s the hopeful note to end on. Steve, thank you so much for joining us. I encourage all of our listeners to read Steve Vladek’s work and to follow his, uh, substack, One First. 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.

[00:41:58] Outro: This podcast is produced by the Liberal [00:42:00] Arts ITS Development Studio and the College of Liberal Arts at the University of Texas at Austin. The music in this episode was written and recorded by Harris Codini. Stay tuned for a new episode every week. You can find This Is Democracy on Apple Podcasts, Spotify, and Stitcher. See you next time.