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Speaker 1: vary and rates may vary. Well. If you remember my
Speaker 1: interview with Sarah Isker Oh, I want to say like
Speaker 1: four months ago. She we promt soon when her book
Speaker 1: came out because we had more to debate. In fact,
Speaker 1: I had a weird idea for her about how to
Speaker 1: fix the judiciary, and we're going to get to that.
Speaker 1: But her book is out. It is called the last
Speaker 1: branch standing. For those of you who aren't familiar with Sarah,
Speaker 1: she's currently part of the Dispatch. If you're a podcast obsessor,
Speaker 1: you might listen to the Advisory Opinion podcast with her
Speaker 1: and David French it is. She's sort of the legal
Speaker 1: expert of all things legal for the Dispatch. She has
Speaker 1: worked at the Justice Department in a previous administration, and
Speaker 1: I guess would try to describe herself as right of center, Sarah,
Speaker 1: how would you describe.
Speaker 2: Yourself without a party?
Speaker 1: Conservative, whatever that means today? That's when you say, you know,
Speaker 1: it's interesting, you know, let's I want to steal on
Speaker 1: this a minute.
Speaker 2: Yeah, because.
Speaker 1: And I bet you you've had a conversation similar conversation
Speaker 1: with Joanah Goldberg. And on one level, we're all liberals correct, right,
Speaker 1: because we believe in liberal.
Speaker 2: Correct. That's why I'm conservative, because I'm a liberal, which
Speaker 2: I know is the weirdest phrase ever.
Speaker 1: But actually people that are trying to understand that, how
Speaker 1: would you.
Speaker 2: Talk about this in the book too? Because people try
Speaker 2: to think about the court or the media sometimes covers
Speaker 2: the court like they cover Congress, and I'm like, yes,
Speaker 2: there's an ideological spectrum on the court, and yes it's
Speaker 2: conservative to liberal, but it doesn't map onto our politics
Speaker 2: particularly well. It maps far better onto what you're talking about,
Speaker 2: or sort of the actual like political science spectrum where
Speaker 2: you have anarchy on the one side and statism on
Speaker 2: the other side. All of us are in the middle
Speaker 2: of that spectrum somewhere, and we hold wildly contradictory views.
Speaker 2: You know, limiting a border, you know, or maybe guns
Speaker 2: is a better example. Uh, gun regulation is statist, but uh,
Speaker 2: you know, free speech is anarchy, right, and so you
Speaker 2: can have all sorts of things that you can plot
Speaker 2: along that line. Uh So the reason I'm a conservative,
Speaker 2: Conservatism is like that line right in the middle where
Speaker 2: it's like status quo. Before we change anything, I want
Speaker 2: us to think really hard about it, because we've got
Speaker 2: a pretty good country and a pretty good life, and
Speaker 2: if we make changes, I want to make small changes.
Speaker 2: See look around, like, is everything still okay? What what
Speaker 2: were the second third order effects? Okay? Good? That was good.
Speaker 2: Let's make another little change then. So that's what I
Speaker 2: mean by a conservative, because I'm liberal.
Speaker 1: So what would you so I called my I don't
Speaker 1: so what I you know, A lot of people try
Speaker 1: to call me a centrist. You know, let's say you know,
Speaker 1: or they moderate or I get that.
Speaker 2: I've heard people call you all sorts of things.
Speaker 1: I've had. I've had a lot of names, but like
Speaker 1: those that are like some I'm serious about it. Somebody
Speaker 1: called me, you know, I'm gonna name drop here because
Speaker 1: you know that's what we do now as influencers. Right.
Speaker 1: Bono called me a radical centrist, and I've always.
Speaker 2: That's actually the best name drop i've.
Speaker 1: Yeah, yeah, And it was at.
Speaker 2: One of these way So I in my book in
Speaker 2: that I have little mini chapters for each of the justices.
Speaker 2: And Brett Kavanaugh's biggest regret in life is that when
Speaker 2: he was staff secretary for George W. Bush, he didn't
Speaker 2: ask for a picture with Bono. He was like, you know,
Speaker 2: I'm a staffer. I'm supposed to be like serious, and
Speaker 2: He's like, it was a huge mistake.
Speaker 1: Can I just tell you the single by the quick
Speaker 1: eyed side I'm working at the White House, or what
Speaker 1: I did covering the White House. The piece of advice
Speaker 1: I got was always have a stash of baseballs in
Speaker 1: your work area because you never know who's coming to
Speaker 1: the White House on any given name, and so I
Speaker 1: took that advice. I got you know, you know, ended
Speaker 1: up with Willie Mays, ended up with stand Usual, ended
Speaker 1: up within Scully Like it was just like it was
Speaker 1: now I cheaped out and they were Dick's Baseball's not
Speaker 1: official Major League Baseball, so they're not worth as much
Speaker 1: on the quote open market.
Speaker 2: But please say you're not throwing them.
Speaker 1: So like what my and my Willie May's autograph was,
Speaker 1: I got that one on Air Force one. How do
Speaker 1: you like them apples? Right?
Speaker 2: Like, you know, yeah, I so at DJ, we did
Speaker 2: not have as many celebrities coming through. In fact, we
Speaker 2: sort of frown on letting anyone in the building. But
Speaker 2: if you remember, at the peak of the Mueller investigation,
Speaker 2: the Washington Post like went out to artists and was
Speaker 2: like do your art but about d O J. And
Speaker 2: this is actually an incredible song. I highly recommend it.
Speaker 2: It's called Mister Peepers by Ben Folt of previous Ben
Speaker 2: Folds five. Yeah, and I really really loved the song,
Speaker 2: like genuinely, I just think it's a great song. I
Speaker 2: will tell you, Like I listened to it so often.
Speaker 2: Spotify is like, oh, you're no one, So I was like,
Speaker 2: we're going to find Ben Folds, and I did, and
Speaker 2: he came to DOJ and we had an exchange. We
Speaker 2: signed constitutions for him and he signed a little like
Speaker 2: LP of his record, Mister Peepers for us.
Speaker 1: That's so good. You know, that does mean I'm just
Speaker 1: gonna have to go listen to Mister Peepers. Now, I've
Speaker 1: got to understand.
Speaker 2: So ben Folds is like a very high IQ guy. Yeah,
Speaker 2: And the song basically makes the illusion of Rod Rosenstein
Speaker 2: to Lord of the Flies and Piggy with the glasses,
Speaker 2: and that they're all trying to kill Piggy and like
Speaker 2: this fragile young Republic is actually one of the lyrics.
Speaker 2: Of course, quoting Benjamin Franklin, it is a smart song,
Speaker 2: like they should study it in English literature class.
Speaker 1: So, boy, I love having you mine because it's all
Speaker 1: rabbit holes. But if we're going to go off on
Speaker 1: this rabbit hole, I've got two songs that fit that
Speaker 1: category of sort of like Joey Ramone did a song
Speaker 1: called Maria Bartiromo No and right, It's fantastic. It's it's
Speaker 1: all about he was obsessed with it was back when
Speaker 1: she was at CNBC. Yeah, and he was obsessed with CNBC.
Speaker 1: He was watching all of his investments and literally there's
Speaker 1: a lyric, what's happening at the stock market? You know,
Speaker 1: Maria Bartiromo.
Speaker 2: She does have a lyrical name.
Speaker 1: It is a riot and it's like again like when
Speaker 1: you hear it, it's just like what's happening on squat box?
Speaker 1: And he did this, like you know he's dead. He
Speaker 1: did this is like twenty years ago. He did this song.
Speaker 1: And I remember I early on at NBC. I prepped
Speaker 1: her for a debate, and you know when I was
Speaker 1: his political director, and she didn't have the greatest sense
Speaker 1: of humor about it. I thought she would. I was
Speaker 1: like really fired up, and you know.
Speaker 2: I think it's kind of better than but like it's
Speaker 2: like being parodied on SNL, where you're like, that's you've a.
Speaker 1: Right, They've arrived.
Speaker 2: Joey Ramon, I mean, oh my god.
Speaker 1: And the other one is Arim did a song. Do
Speaker 1: you remember the weird Dan Rather? And you're a little
Speaker 1: bit younger than I am, so you might not remember this.
Speaker 1: So one day Dan Rather is done with the news,
Speaker 1: and I guess he gets mugged. One night in New
Speaker 1: York walking home or something, and he talked about getting mugged,
Speaker 1: and he said the guy kept saying, what's the frequency?
Speaker 1: Kenneth and ari Em did an entire song called What's
Speaker 1: the Frequency kenn And it's just such.
Speaker 2: A little dark but yeah, but it's I guess.
Speaker 1: The song is one of those I never get out
Speaker 1: of my head and for anybody, I think hopefully I
Speaker 1: put him in so that we by the way, I
Speaker 1: think we could create a playlist of some of these life.
Speaker 2: Like political songs. Well, just so you know, Rod Rosenstein
Speaker 2: actually like loves mister Peepers, and he and I talk.
Speaker 2: I don't want to say like every day, but like
Speaker 2: close to every day, is that right? We will, yeah,
Speaker 2: we will sometimes just still exchange lyrics from mister Peevers.
Speaker 1: It's fantastic. So after we got derailed, I was going
Speaker 1: to ask you, I call myself an incrementalist, not a centrist,
Speaker 1: not anything. I could just say incrementalists for the reason
Speaker 1: you just described yourself as small C conservative, which you
Speaker 1: could argue, which is I believe for a country of
Speaker 1: three hundred fifty million people that you know, sometimes we'll
Speaker 1: move to do something progressive. Sometimes we'll do something you know,
Speaker 1: more libertarian. That to me is the real sort of distinction. Right,
Speaker 1: are we going to have less government involvement more government involvement? Right?
Speaker 1: I'm willing to experiment if there's consensus, but only a
Speaker 1: baby step at a time. So what would you call
Speaker 1: where would you put me? Yeah?
Speaker 2: In law, we would call that. You'd be a Burkian
Speaker 2: minimalist no revolutions. In the book I describe I have
Speaker 2: this like spectrum for the justices, Like, yes, there's an
Speaker 2: ideological spectrum, but there's also this institutionalist incrementalist spectrum, and
Speaker 2: I sort of call it aim small miss small if
Speaker 2: you remember from the movie The Patriot. Okay, so if
Speaker 2: we were doing the BuzzFeed quiz of which justice are you?
Speaker 2: Based on that spectrum alone, we've narrowed you down actually
Speaker 2: quite a bit. So you are down to the chief
Speaker 2: Cavanaugh and Kagan.
Speaker 1: That would have been my guest too.
Speaker 2: Yeah, we could ask you some more questions and like
Speaker 2: which one?
Speaker 1: Yeah?
Speaker 2: Yeah, So you know, do you think that you have
Speaker 2: a unique perspective and you like to make sure that
Speaker 2: people understand you because you don't like being misunderstood or
Speaker 2: people assuming what you think that that sounds like you
Speaker 2: to me, like, I mean, given your job, right, Like,
Speaker 2: so that knocks out the chief right.
Speaker 1: Somewhere between can and Kagan. Yeah, it's funny you say that,
Speaker 1: because I remember, and I think you and I have
Speaker 1: had a I remember believing and I I remember Susan
Speaker 1: Collins saying this to a source of mind. I couldn't
Speaker 1: directly confirm it with her, but it was sort of
Speaker 1: she said, I think Kagan and Kavanaugh will be the
Speaker 1: new center of the court, and that was always her
Speaker 1: rationale for supporting Tavanah, and that she believed that the
Speaker 1: two of them were fairly close, and that they were
Speaker 1: professionally close, and that that would they would be the center.
Speaker 1: And I think the open question has always been did
Speaker 1: the confirmation process have an impact on Kavanaugh that changed
Speaker 1: that mindset? And you know, I know you that's incredible.
Speaker 2: I think is right. He is in the majority more
Speaker 2: than any other justice in the modern era, including the
Speaker 2: justice that he replaced, more than Sandred O'Connor, more than
Speaker 2: Anthony Kennedy, which is wild because we always saw it that.
Speaker 1: Majority maker for the longest time, Right.
Speaker 2: He was the majority maker, right, And I think that
Speaker 2: thinking of Kagan as the center of the Court. Maybe
Speaker 2: that's not the right word, but she plays far more
Speaker 2: of a role behind the scenes than I think people
Speaker 2: realize because all they're seeing is the vote tally and
Speaker 2: they don't think a lot about Kagan is a strategic player, right,
Speaker 2: which solicitor general taking?
Speaker 1: Yeah? How many solicitor generals are on the court?
Speaker 2: Former solicitor generals, actual solicitor general. It's just her, just
Speaker 2: her us Some of them served in the solicitor General's office.
Speaker 2: So Alito and Roberts had both been assistant solicitors General.
Speaker 1: Okay, do you think that makes you more likely to
Speaker 1: be more collaborative if you're in that solicitor general role
Speaker 1: or not? And that's always is that still the tenth justice?
Speaker 1: That's always been the joke, Right, it's the tenth justice.
Speaker 2: I don't think after this administration that is.
Speaker 1: Fair.
Speaker 2: Yeah, it's just not right now. They do not sort
Speaker 2: of give that person the There was like a conversationalism
Speaker 2: to it. I'm like, yeah, yeah, we saw you last week,
Speaker 2: casual mother. Anyway, what are you here to talk about today? Right,
Speaker 2: that's not happening anymore. But I think the bigger thing
Speaker 2: that you're getting at, actually that has a bigger effect
Speaker 2: is that they worked in the executive branch, and a
Speaker 2: lot of the current justices worked in the executive branch.
Speaker 2: You compare this court to the court that decided like
Speaker 2: Brown v. Board of Education. The Brown v. Board of
Speaker 2: Education court had first of all, eight of them had
Speaker 2: served in the military. That's not surprising, right, We're in
Speaker 2: the wake of World War two. Five of them had
Speaker 2: held elected office, a governor and some senators and a congressman.
Speaker 2: Two of them had been attorneys general. One of them
Speaker 2: didn't have a law degree. Five of them had graduated
Speaker 2: from a public law school. You know, compare that to
Speaker 2: the court we have now six of them clerked on
Speaker 2: the Supreme Court. Almost all went to Ivy League schools
Speaker 2: except for Justice Barrett. Almost all of them have worked
Speaker 2: in the executive branch. None had any serious jobs in Congress, though,
Speaker 2: for instance, Elena Kagan at one point briefly worked on
Speaker 2: Ruth Bader Ginsburg's confirmation in the Senate Judiciary Committee. That's
Speaker 2: not like representing Article one in any way. And I
Speaker 2: think we've lost something as we've really narrowed that resume
Speaker 2: into the Supreme Court. Three of the justices replaced the
Speaker 2: Justice they clerked for So the chief replaced the Chief,
Speaker 2: Kate Kavanaught replaced Kennedy Jackson replaced Brier. And when we
Speaker 2: talk about an Alito retirement, do you know who's number
Speaker 2: one on the list for replacements Judge Andy Oldham, one
Speaker 2: of his former clerks. Because one way to convince a
Speaker 2: Supreme Court justice to retire is to say, don't worry,
Speaker 2: your legacy will continue. We'll pick one of your clerks.
Speaker 2: And that has really encouraged some of these justices to
Speaker 2: step down in a very recent past.
Speaker 1: So the thing that bothers me the most about this
Speaker 1: court since Sandradale O'Connor left is the lack of experience
Speaker 1: on the campaign trail you are deciding issues, Chuck.
Speaker 2: You want me to be a Supreme Court I'm so flattered.
Speaker 1: Well there you go, Yes I do. I would look
Speaker 1: whether understanding the impact of your rulings and how they
Speaker 1: might play in the real world. I'm sorry, what you
Speaker 1: just described are nine people that do not live in
Speaker 1: the normal world. Have not really Washington is its own
Speaker 1: bizarre ecosystem, as you and I both both know. So
Speaker 1: you know, you know, I took some solace in the
Speaker 1: fact that at least Sandrade O'Connor had had asked for
Speaker 1: somebody's vote, would understand how the average person deals with
Speaker 1: a Supreme Court ruling and how it can impact their
Speaker 1: way of life. We have gotten rid of that because
Speaker 1: there's so many right, we're so in a weird way.
Speaker 1: The polarization is made touching elected officials impossible, right, they
Speaker 1: seem like they'd be impossible to confirm. That's why you
Speaker 1: don't do it. I guess the last semi serious elected
Speaker 1: official considered is it? Is it Bruce Babbitt? Right? Was
Speaker 1: it Mario Cuomo? I don't know. Bruce Babbitt, Well, don't
Speaker 1: forget that.
Speaker 2: Donald Trump said that he would put ted Cruz on
Speaker 2: the Senate because it would make all the other senators
Speaker 2: so happy.
Speaker 1: I look at Alito opening feels very likely to me.
Speaker 1: It's the summer, and if I.
Speaker 2: Were, it's very likely, whether it's this summer or next summer.
Speaker 2: Like it may not be this summer.
Speaker 1: Well, yes, it may need to be this summer.
Speaker 2: It may.
Speaker 1: I mean, I think if you look, the Senate seems
Speaker 1: more in play every day.
Speaker 2: Thank you Texan.
Speaker 1: Well it's not just Texas now, right, You got Montana,
Speaker 1: you got Iowa, yet main in North Carolina already got
Speaker 1: already gone, right, so now they just need to find
Speaker 1: two more Ohio and Alaska. Look competitive, you've got textas
Speaker 1: you got. I mean, point is I think, look, the
Speaker 1: prediction markets already have Democrats favored to pick up the Senate.
Speaker 1: I think that's a little over uh over exuberant, but
Speaker 1: I understand that sentiment. It certainly looks that way. And
Speaker 1: in fact, if I were Donald Trump and I were
Speaker 1: thinking about ways to goose turnout in the midterms, Supreme
Speaker 1: Court opening would be one thing I would consider.
Speaker 2: There is no question that this White House is very
Speaker 2: eager to have a Supreme Court opening and lower court openings.
Speaker 2: They are putting the word out, uh, you know, let's
Speaker 2: let's do this.
Speaker 1: We will Who's who's more likely?
Speaker 2: Definitely Aldo Thomas has basically signaled that he does not
Speaker 2: intend to go, so stop bugging him. But this is
Speaker 2: why when everyone's talking about like, will Trump pick like
Speaker 2: a total lunatic to put on the court? Trump may
Speaker 2: want to put a total lunatic on the court, don't
Speaker 2: get me wrong, But if they need to coax Alito
Speaker 2: off the bench, they may have a bit of their
Speaker 2: hands tied. That may be part of the deal that
Speaker 2: they make, you know, if you retire. Now here's the person,
Speaker 2: and so that may guarantee that we get a normy
Speaker 2: like a judge and yolda. Now you may think you
Speaker 2: may not like his opinions or whatever, but like he
Speaker 2: is a circuit judge with all the resume and everything
Speaker 2: as a very normal pick, you know, in terms of that.
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Speaker 1: The story about Alito and that health issue last month.
Speaker 2: You know I have a very good friend who was
Speaker 2: at that party, though.
Speaker 1: Can I be a little bit like that felt forced?
Speaker 1: That felt like a forced leak.
Speaker 2: Yes, okay, So basically as far as I have heard, again,
Speaker 2: this is not coming from the court or anything else,
Speaker 2: I have a friend who is at the event. It
Speaker 2: sounds like you got neurovirus at the party. So like
Speaker 2: he was, he was fine during the cocktail hour, and
Speaker 2: then suddenly he was not fine. If any of us
Speaker 2: have ever had neurovirus or have young children, were very
Speaker 2: aware of how that works. They were hours away from
Speaker 2: his home, and so the question was do you drive
Speaker 2: home or do you stop by a hospital to make
Speaker 2: sure it's neurovirus and not food poisoning or something like that. So, like,
Speaker 2: of course they went to the hospital. He has commercial service.
Speaker 2: It kind of seemed like a non story to me.
Speaker 2: They checked him out, They're like, yeah, you have norovirus,
Speaker 2: have a fun try.
Speaker 1: It was a non story that day. It didn't and
Speaker 1: then and then it magically leaks out like two weeks later,
Speaker 1: and I was like, hmm, that's intentional.
Speaker 2: He's actually pretty young compared to other justices who have retired.
Speaker 1: I was just going to take Thomas Thomas is the right.
Speaker 2: He's got a book coming out in October, and some
Speaker 2: people have said, like, well, he made the book publication
Speaker 2: for the first week of oral argument, so clearly he
Speaker 2: doesn't intend to be on the court. And I'm like,
Speaker 2: or Justice Alito doesn't intend to sit through like a
Speaker 2: whole book to her like some people do. Did I
Speaker 2: mention it? No, So I think you can make arguments
Speaker 2: either way. He is enjoying his time on the Court.
Speaker 2: I don't think he necessarily wants to leave. But the
Speaker 2: number one reason to leave is, as you say, the
Speaker 2: midterm elections are coming. He would like, you know, someone
Speaker 2: like him to replace him, whether it's one of his
Speaker 2: clerks or not, and you don't want to lose that chance.
Speaker 2: The Ginsburg example looms heavy on the Court, as does
Speaker 2: the Scalia example.
Speaker 1: Ted Cruiser Mike Lee is at all serious in your mind?
Speaker 2: You know, if it were any other president, No, but
Speaker 2: like yeah, but I think it's very unlikely. You look
Speaker 2: at the circuit picks that this administration is picking, and
Speaker 2: they could be from the w administration. Almost all of
Speaker 2: them have clerked for the Supreme Court, which again I
Speaker 2: do not like the narrowing of this. And if I
Speaker 2: could just go on a rant for a second. Please
Speaker 2: chuck you like my rantsy?
Speaker 1: Yeah, yes, I do.
Speaker 2: Okay. So to become a Supreme Court justice, you must
Speaker 2: be a circuit judge. To be a circuit judge, I
Speaker 2: don't mean you actually must, I mean in this current
Speaker 2: environment right by no means must you okay? To be
Speaker 2: a Supreme Court justice, you must have been a circuit judge.
Speaker 2: To be a circuit judge, you must have been a
Speaker 2: Supreme Court clerk. To be a Supreme Court clerk, you
Speaker 2: must have clerked for multiple circuit judges. That's many years
Speaker 2: of your life. To do that, you must have had
Speaker 2: the you know, economic stability to not need to go
Speaker 2: directly to a law firm where they would pay you
Speaker 2: four times as much as your clerk salary. And to
Speaker 2: do that you almost certainly went to an Ivy League
Speaker 2: or Ivy League equivalent law school. We are literally narrowing
Speaker 2: down who our Supreme Court justices can be at eighteen
Speaker 2: years old.
Speaker 1: That's insanity. And you're right, like you have to start
Speaker 1: worrying about it at eighteen.
Speaker 2: Right, And that's we don't want. You know, you talked
Speaker 2: about how he's people because of their resumes and everything
Speaker 2: else live in a bubble. We also have forced them
Speaker 2: into this bubble, so they now have twenty four to
Speaker 2: seven marshall service because of the threats that are not
Speaker 2: just online death threats, you know, someone showing up to
Speaker 2: Justice Kavanaugh's house with the intent of assassinating him and
Speaker 2: with the tools to do so. But it's not just
Speaker 2: the violence, it's also the secret recordings. They can't talk
Speaker 2: to people in a normal way because they have to
Speaker 2: assume that anyone they don't know could be trying to
Speaker 2: use this against them in some way. They can't make
Speaker 2: new friends. They can't go to restaurants anymore.
Speaker 1: You know.
Speaker 2: Justice Alito, as I mentioned in the book, used to
Speaker 2: walk down the street every day and go to the
Speaker 2: ko seat to get the little salad in a bowl
Speaker 2: that's you know, in the house.
Speaker 1: We kind of recognized him frankly on the street. I
Speaker 1: don't mean that it's not disparaging, it's just the most
Speaker 1: people wouldn't know what look like. Yeah, that was kind
Speaker 1: of a feature.
Speaker 2: He brings a brown bag lunch every day, as do
Speaker 2: almost all of the rest of the justices. Because they
Speaker 2: get mobbed in restaurants. They have protests at their homes,
Speaker 2: and so we've put them into this like further and further,
Speaker 2: like retreated from human society. And at the same time,
Speaker 2: it's not really about these current justices that I'm particularly
Speaker 2: concerned about, is what it is. Right. But when you
Speaker 2: talk to the people who are shortlisters and you ask them,
Speaker 2: these are normal, smart, thoughtfuls already, and you ask them, so, like,
Speaker 2: you know, are you going to do this? The thing
Speaker 2: that I keep hearing is, oh, I mean, I'll be honest, like,
Speaker 2: I don't know if I can do this to my family.
Speaker 2: And so the types of people who are going to
Speaker 2: be sort of put themselves out there and complete this
Speaker 2: like triathlon to be a Supreme Court justice are going
Speaker 2: to be sociopaths who do not care about their family,
Speaker 2: their private life.
Speaker 1: Who have you met the United States Senate?
Speaker 2: Yeah, No, that's exactly what we're going to do. We're
Speaker 2: going to have the types of people who currently run
Speaker 2: for Congress. Either you can't make more money in the
Speaker 2: private sector, which should scare the hell out of you,
Speaker 2: or an actual psycho. And that's the choices you're going
Speaker 2: to have for a Supreme Court justice. A lawyer who
Speaker 2: can't make more money in the private sector, or someone
Speaker 2: who you know, really that that lifestyle appeals to them,
Speaker 2: which it should not.
Speaker 1: Look it's I mean, you're you're certainly this rants sings
Speaker 1: my tune, you know. So let's talk about what broke
Speaker 1: the court. You know, and I know you your last
Speaker 1: branch standing. The last time we talked, we talked about
Speaker 1: the three three three court. Right that this is not
Speaker 1: a six' three. Court it's really a three three three.
Speaker 1: Court but BEFORE i gloss over the three three, three
Speaker 1: go through your three three three, again AND i assume It's,
Speaker 1: Kavanaugh Barrett roberts in the. Middle is that who your
Speaker 1: three is?
Speaker 2: There think of it as high school lunch. Tables you.
Speaker 2: Know it's not that they always sit, together but like,
Speaker 2: generally if you're going to the lunch, room you're going
Speaker 2: to be able to find them at the. Table so the,
Speaker 2: Chief barrett And kavanaugh are at the cool kids. Table
Speaker 2: they're like the jocks because they're most likely to be
Speaker 2: the fifth vote in any. Case they are almost always
Speaker 2: in the majority more than ninety percent of the. Time,
Speaker 2: okay now we have like maybe our like super nerd
Speaker 2: ap classes. Table That's Kagan sodamayor And. JACKSON i will
Speaker 2: circle back to sort of what makes them, different why
Speaker 2: they're so interesting in that they're doing a different, project,
Speaker 2: right because they do not they're not on that same
Speaker 2: ideological side of the.
Speaker 1: Spectrum, no they feel like Brand, i Brandeiserch but we'll
Speaker 1: get to that.
Speaker 2: Anyway, yeah and then we have my table THAT i
Speaker 2: call the conservative Honey. Badgers they're sitting, together but they
Speaker 2: don't actually like they're like sort of the. Misfits they're
Speaker 2: like reading their own books or like looking at their
Speaker 2: own magic the gathering. Cards but while seated. Together That's, Thomas,
Speaker 2: alito And. Gorsich they are the least likely of these
Speaker 2: three three pods to agree with one. Another they actually
Speaker 2: have very different judicial, philosophies but find themselves in descent
Speaker 2: together as often as the three liberals find themselves in. Descent.
Speaker 1: Well, LOOK i think what's interesting to me, though is
Speaker 1: that in your threes, right in the two, wings gorse
Speaker 1: such will. Flirt you, know isn't always with the two.
Speaker 2: Right he's a, libertarian so that's always going to be
Speaker 2: different because that's what libertarians have to.
Speaker 1: Be alito And thomas feel the. Most alito And thomas
Speaker 1: on the, Right jackson and so to my or on
Speaker 1: the left field the most. Political and what DO i
Speaker 1: mean by? THAT i want to give my definition of
Speaker 1: what political, means meaning wherever they think the, convention conventional
Speaker 1: conservative thought or liberal thought, is they go. THERE i,
Speaker 1: mean they're almost predictably so Versus, kagan who Like gorsage
Speaker 1: every once in a, while AND i probably am not
Speaker 1: giving enough credit to so to my r who also
Speaker 1: everyone's in a, while will we'll find yourself not with
Speaker 1: With kegan And, brown AND i think there's once or
Speaker 1: Twice i've noticed. That is that a Fair AM i
Speaker 1: characterizing it? Correctly or how would you push back on
Speaker 1: me on?
Speaker 2: That, OKAY i am going to push back a little
Speaker 2: because the equivalent To gorsuch is Actually. Jackson they are
Speaker 2: the low. Institutionalists they are just there to speak with
Speaker 2: their own, voice you, know like they're.
Speaker 1: Soloists by the, way there's my favorite opinion of the
Speaker 1: year is score such and the tariff the tariff, CONCURRENT
Speaker 1: i mean, opinion it is the f You, congress get
Speaker 1: your shit. Together it is like you preach, brother like you, know,
Speaker 1: yes like you, know please keep doing. This AND i
Speaker 1: hope someone on team on the left side of the
Speaker 1: court says something, similar because this needs to. Me what
Speaker 1: he said was not. Ideological it was sort Of congress
Speaker 1: needs to do their effing job and stop forcing us
Speaker 1: to essentially be a. Legislature we need to.
Speaker 2: Follow this tangent for a, moment which is this is the,
Speaker 2: reason by the, way that we're talking about the court so,
Speaker 2: much that people feel The court is so much more
Speaker 2: partisan than they did in the. Past and it's, because
Speaker 2: let's you, know there's two cases pending this term that
Speaker 2: everyone has sort of maybe heard. About one is Can
Speaker 2: mississippi accept ballots five days after election? Day and another
Speaker 2: one that you might have heard about is whether the
Speaker 2: administration can stop people before they get to the southern
Speaker 2: border and therefore not allow them to apply for. Asylum
Speaker 2: The Supreme, court in those, cases and many the vast
Speaker 2: majority of the cases that they decide that we hear,
Speaker 2: about is not actually, deciding of, course whether those are
Speaker 2: good or bad. Policies there are also not deciding whether
Speaker 2: those are constitutional. Policies all they are doing in those
Speaker 2: cases deciding What congress said in a statute in the.
Speaker 2: Past when The court would decide those, cases they didn't
Speaker 2: matter very much because the next Day congress would just
Speaker 2: amend the law if they disagreed with what The court
Speaker 2: thought they had. Said they did this in The Voting
Speaker 2: Rights act, case for. Instance they did this in The
Speaker 2: Lily ledbetter case as. Well the problem we have now
Speaker 2: is that nobody believes that after The mississippi absentee ballot
Speaker 2: case or The remain In mexico, case that the next
Speaker 2: Day congress will do jack shit about these. Cases and
Speaker 2: so instead of it being this ongoing dialogue Between congress
Speaker 2: and the, courts the court's the last. Word so it
Speaker 2: becomes really important to people what The court says, understandably
Speaker 2: but they also don't feel like they have any ability
Speaker 2: to change it because The court is not a democratic representative,
Speaker 2: institution and so the frustration builds with the court when in,
Speaker 2: fact as you, know they should be Frustrated. Congress.
Speaker 1: LOOK i look back AND i think, about you, know
Speaker 1: how long Has congress been? Broken and you, know we
Speaker 1: sit here and we, say, ooh it's so. Polarized and you,
Speaker 1: know some people want to, say, oh it's New, gingridge
Speaker 1: and then some you, know if you go back, further
Speaker 1: they're all. Right so. Right, WELL i go back EVEN
Speaker 1: i look At brown Versus board Of, education, right and
Speaker 1: you think about the things that the court ended up
Speaker 1: having To you, know when did the court first start
Speaker 1: looking quote unquote political or being treated as a political
Speaker 1: branch rather than as a judicious. Branch you could argue
Speaker 1: it began With brown Versus. Board, Right it was because
Speaker 1: it was such a you, know it changed it it
Speaker 1: sort of it changed a lot for a lot of
Speaker 1: people in this. Country And roe Versus? Wade why did
Speaker 1: why did The court even have? This Because congress didn't
Speaker 1: have the guts to make a decision on reproductive rights
Speaker 1: for women in the, law which they could easily have.
Speaker 2: Done Why pittsburgh did not Like roe Versus. Wade she
Speaker 2: thought they were winning the political, fight and she wanted
Speaker 2: to win it at the ballot, box whether that was
Speaker 2: state by state or In, congress because she knew that
Speaker 2: that decision and the way that it was, written the
Speaker 2: way that it was, decided was incredibly.
Speaker 1: Vulnerable, WELL i don't understand why equal protection wasn't work.
Speaker 2: Used but she was mad about that. Too she was,
Speaker 2: like this was a decision about the doctor's. Rights what
Speaker 2: about the? Women she was, like she was mad like
Speaker 2: six ways To sunday and it was. Amazing this was
Speaker 2: all before she went on the, court by the, way
Speaker 2: now it's.
Speaker 1: All it's actually really well documented in that one documentary about.
Speaker 2: Her, right, yeah, yeah but, okay here's the one Thing
Speaker 2: i'll push back on what you. Said it's not THAT i.
Speaker 2: Disagree you're of course totally, Right but The court has
Speaker 2: been seen as political Since. Jefferson, Right jefferson was trying
Speaker 2: to Impeach Samuel chase for being too political on the.
Speaker 2: COURT fdr thought The court was being. Political that's why
Speaker 2: he wanted to pack It, lincoln, right must we ignore
Speaker 2: all the laws but one we are not ruled by
Speaker 2: The Supreme. Cour so the feeling has always existed because they're,
Speaker 2: countermajoritarian because they're lagging indicator of our. Politics BUT i
Speaker 2: think Your brown Versus board Of education point is what
Speaker 2: has launched. That that's what you can point to for
Speaker 2: our current. Moment that's the.
Speaker 1: Current moment that we're. In, Right and it's sort of
Speaker 1: like and you, know and look there's AND i don't
Speaker 1: know of, course then it's there's the confirma. Right as
Speaker 1: the court became this be all end all for people's. Rights,
Speaker 1: well then of course it raised the stakes for the confirmation.
Speaker 1: Process it's sort of like the chicken and egg. Argument
Speaker 1: what has politicized the? Court the confirmation process Or congress's
Speaker 1: inability to deal with issues in the court having to
Speaker 1: be the last. Word so if the court's the less,
Speaker 1: word then who gets on the court becomes that much more. Important,
Speaker 1: Right it's sort of this vicious cycle that we're. In you,
Speaker 1: KNOW i Look federalist seventy. Eight you assume are familiar
Speaker 1: With federalist seventy. Eight it Is hamilton's argument about the courts,
Speaker 1: essentially AND i can tell you HOW i Read federal seventy.
Speaker 1: Eight he wants the least political people you can possibly
Speaker 1: have in the. Court they've got to be you. Know
Speaker 1: he didn't use umpires or referees because we didn't have that,
Speaker 1: then but he was essentially describing. That, Yeah and he
Speaker 1: certainly said and the last thing we'd ever want to
Speaker 1: do is have election of, judges which a handful of states.
Speaker 1: Do AND i find it to be, asinine, right, like
Speaker 1: what have we? Done these Elected supreme courts are garbage to.
Speaker 1: ME i cannot stand, them and they just all they
Speaker 1: do is make people's trust in the courts get. LOWERED
Speaker 1: i think, COLLECTIVELY i think they do a terrible service
Speaker 1: to the CURRENT Us Supreme. Court that we have These
Speaker 1: Supreme court elections in swing st.
Speaker 2: It's so so. Bad AND i think we, see like,
Speaker 2: oh In wisconsin, redistricting and there's sort of these these
Speaker 2: very partisan culture worry things that we hear. About but
Speaker 2: what we don't talk nearly enough about is when we
Speaker 2: have elected, judges the rights of criminal defendants are hurt
Speaker 2: the most because if everyone, believes the majority of voters
Speaker 2: believe that that person did, it are you really going
Speaker 2: to let them out in a technicality if it costs
Speaker 2: you your. Job it's just some you, know guy who's
Speaker 2: a bad. Apple he did the. Crime you, Know i'm
Speaker 2: not going to lose my robe over. This that is
Speaker 2: why we have life, appointments because they have to be
Speaker 2: able to make decisions that the majority. Hates the founders hated,
Speaker 2: mobs they actually hated direct democracy and. Majorities this whole
Speaker 2: branch exists to stand up against majorities because otherwise you
Speaker 2: do not have a First, amendment you do not have
Speaker 2: a fourth. Amendment the whole point of those is that
Speaker 2: the majorities will hate the, speech and so who's going
Speaker 2: to protect the speech that everyone, hates not someone who
Speaker 2: has to stand for. Election but instead we focus on
Speaker 2: the wrong things with the elected. JUDGES i actually don't
Speaker 2: care about the redistricting stuff being. PARTISAN i MEAN i do.
Speaker 1: Period it doesn't matter that the incentive structures are you,
Speaker 1: know are. Not AND i Love i've not heard that,
Speaker 1: argument but that's my favorite new argument frankly of reason
Speaker 1: to be against, it which is like you, YES i,
Speaker 1: mean you're like it is unfair to those that appear
Speaker 1: in front of the court, period, yes you, know especially
Speaker 1: when you described, right like you, know for for just
Speaker 1: deciding state crime, issues, yes.
Speaker 2: Which is the, vast, vast vast majority of our law
Speaker 2: is done at the state, level very very little well
Speaker 2: even have the opportunity to go to The Supreme. Court so,
Speaker 2: YEAH i.
Speaker 1: Don't even like. RETENT i don't even think. Retent you,
Speaker 1: know there's some states have the retention, yeah.
Speaker 2: Or nonpartisan, elections but they never end up being non.
Speaker 1: Nonpartisan wisconsin's nonpartisan on, paper you, know if you go
Speaker 1: in the. Ballot, yeah you, know, LIKE i, mean it's
Speaker 1: just insane this and Like wisconsin's Because. Wisconsin i've always,
Speaker 1: said you, Know wisconsin's ground zero for our. Polarization they
Speaker 1: were polarized before the rest of us. Were i've spent
Speaker 1: time there and all this, Stuff so of course there was.
Speaker 1: Companies they're the ones that have weaponized the court more than.
Speaker 1: Anybody it's, awful but we Were, yeah.
Speaker 2: We were talking about just the nine. JUSTICES i don't
Speaker 2: like that was ten minutes ago that Gorsic and And
Speaker 2: jackson are so similar and they join each other's concurrences
Speaker 2: because they view their roles on the court so, similarly
Speaker 2: even though they are ideologically so far apart on that other,
Speaker 2: spectrum on the institutionalist incrementalist, spectrum if you, will they
Speaker 2: are non, incrementalists non institutional they.
Speaker 1: Feel that's why is it brandeis that was seen as
Speaker 1: the guy that wrote wrote dissents that eventually BECAME.
Speaker 2: I, Mean John, Marshall, Harlan we've had like these.
Speaker 1: Randise, yeah that two generations, later their descents would be
Speaker 1: the foundation for opinions right for positive.
Speaker 2: Whereas Like kagan And, havena AS i, said, again they're
Speaker 2: not next to each other, ideologically but they are right
Speaker 2: on top of each other incrementalistly institutionally, Okay but here's
Speaker 2: something you said that was incorrect THAT i want to,
Speaker 2: correct which is this idea That thomas And alito are
Speaker 2: more again political by the definition you were. Using all
Speaker 2: of the very very few of these cases fall into
Speaker 2: that category to begin. With so in the last twenty,
Speaker 2: years over ninety percent of the cases have had at
Speaker 2: least one liberal justice in the. Majority so when we're
Speaker 2: even talking about these sort of ideological, lineups we're actually
Speaker 2: looking at very very few. Cases and in the same
Speaker 2: way that in the conversion therapy case that was eight
Speaker 2: to one about whether therapists have free speech rights to
Speaker 2: tell their clients even though they're licensed by the, state
Speaker 2: do they have the right to if their client wants
Speaker 2: them to help them feel comfortable in the sex they
Speaker 2: were born, With do they have the right to do
Speaker 2: that under The First? Amendment eight of the justices say,
Speaker 2: yes And Justice jackson says. No, yes that does line up.
Speaker 2: Ideologically Perhaps Justice jackson is the liberal she's against conversion,
Speaker 2: therapy but her reasoning was that this is a state licensed,
Speaker 2: job so when you are doing, it you are doing a,
Speaker 2: conduct you are conducting, medicine and That trump's basically you're
Speaker 2: not some random citizen practicing free. Speech you had to
Speaker 2: get a.
Speaker 1: License that trump's your quote free speech.
Speaker 2: Rights that's right. Now another example of something like that
Speaker 2: is on The raheemi case about this, guy he's like
Speaker 2: the worst guy In. America he had two domestic violence restraining.
Speaker 2: Orders he shot up a water. Burger don't worry because
Speaker 2: he was also a drug. Dealer that case was eight
Speaker 2: one And thomas was the sole dissenter and they're arguing
Speaker 2: about how to apply you, know text history and tradition
Speaker 2: in The Second amendment to domestic violence restraining orders when
Speaker 2: obviously we didn't have those at the. Founding but more,
Speaker 2: importantly you haven't been convicted of a. Crime nobody has
Speaker 2: found anything beyond a reasonable, Doubt and so can we
Speaker 2: take away Your First amendment rights when you haven't been
Speaker 2: convicted of? Anything, no so why can we take away
Speaker 2: Your Second amendment? Rights thomas is the sole person who's,
Speaker 2: like you have to have a criminal conviction to take
Speaker 2: someone's constitutional. Rights, again it looks like it lines up ideology,
Speaker 2: ideologically but if you dig into, IT i think you
Speaker 2: will find that there's something very consistent about what Justice
Speaker 2: thomas is saying and on that spectrum we were talking,
Speaker 2: about right, like he is on the sort of more
Speaker 2: anarchy side of. That you can never take away Someone's
Speaker 2: Second amendment rights unless you have checked every single box
Speaker 2: and Justice jackson is on that more status. Side, yes
Speaker 2: if the, government you, know the government gets to license
Speaker 2: you as a, doctor and once they, do you have
Speaker 2: given up some of your rights to get that. License
Speaker 2: those aren't really ideological fights in the normal political, sense
Speaker 2: but they do line up on that. Spectrum, nevertheless.
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Speaker 1: too am a. Customer let me ask you to help
Speaker 1: me understand the distinction between an originalist and a. TEXTUALISTS
Speaker 1: i BELIEVE.
Speaker 2: I am a textualist and not an.
Speaker 1: Originalist, yeah Mister gorsuch calls himself a, textualist not an.
Speaker 1: Originalist that's Both alito And thomas call themselves. Originalists is that?
Speaker 2: Correct, oh let's sit on this table for a little. While,
Speaker 2: Okay gorsic is a, textualist, Okay and these are all
Speaker 2: their own terms for. Themselves gorsich is a, Textualist alito
Speaker 2: is a feint hearted, originalist And thomas is a bloodthirsty.
Speaker 1: Originalist very, nice, okay, Okay so basic difference between the
Speaker 1: count you, WELL i, Assume, well, anyway you tell me
Speaker 1: the basic difference between the originalists and.
Speaker 2: Textualists gorsich is going to read the text of the
Speaker 2: Fourteenth amendment or of that, statute and it doesn't matter
Speaker 2: whether they understood what they were agreeing, to because he's
Speaker 2: going to look at the text and, say, like, look
Speaker 2: you said equal. Protection you, know you didn't know what
Speaker 2: gender identity was or, whatever but like it says equal
Speaker 2: and that's what we're going to do. Now you, know
Speaker 2: in the case About, bostock it was employment discrimin and
Speaker 2: it said because of. Sex and he's, like you fired
Speaker 2: someone because they wore a skirt to work and they
Speaker 2: were a. Man that's because of, sex because you don't
Speaker 2: think men should wear, skirts, which by the, way just
Speaker 2: like side, note that's not even like a sex, thing, Right,
Speaker 2: like in some cultures men do wear skirts and others they.
Speaker 2: Don't that's. Right and he's, LIKE i don't care That
Speaker 2: congress when they pass this law might not have thought
Speaker 2: of this, application because it's in the. Text i'm reading
Speaker 2: the text And i'm applying the. Text that's a. Textualist,
Speaker 2: okay let's go over To, thomas our bloodthirsty, originalist WHICH i,
Speaker 2: love and let's go back to That Second amendment case
Speaker 2: with my drug dealing waterburger shooting up super fun. Dude
Speaker 2: his point is, like, look we agreed to a contract
Speaker 2: at the, founding and The Second amendment, says you, know
Speaker 2: the right to bare arms shall not be. Infringed feel
Speaker 2: free to amend, that but my only job here is
Speaker 2: to apply. That and if you haven't been convicted of
Speaker 2: a crime and that crime didn't exist at the, founding
Speaker 2: my hands are tied because otherwise we're just kind of
Speaker 2: making this all up And i'm not willing to do.
Speaker 2: That that's the bloodthirsty that's like the purest form of.
Speaker 2: Originalism whatever they thought they were agreeing to when they
Speaker 2: ratified that. Language that's the only agreement we've ever, made
Speaker 2: and we're not changing it to fit your modern. Times alito's, like,
Speaker 2: look let's be practical about. This you, know at the
Speaker 2: time of the, founding they didn't have domestic violence restraining,
Speaker 2: orders but they had laws to disarm someone if they
Speaker 2: thought they were a threat to public safety for other,
Speaker 2: reasons even if they hadn't been convicted of a. Crime
Speaker 2: you're a notorious, drunk you keep going around town making
Speaker 2: people afraid by like shooting your gun up into the.
Speaker 2: Air that's close enough for me that they knew that
Speaker 2: they were agreeing that the government could disarm someone who
Speaker 2: was generally thought to be a dangerous guy short of
Speaker 2: a criminal. Conviction that's your fainthearted, originalist who's going to
Speaker 2: look at a slightly higher level of generality of what
Speaker 2: that contract was that was agreed to at the.
Speaker 1: Time and what do we call everybody? Else?
Speaker 2: Uh, well the chief has eschewed any. Label you, know
Speaker 2: he's a little bit harder to pin. Down he's obviously,
Speaker 2: conservative but his methodology is not originalism or. Textualism it's you,
Speaker 2: know something else entirely that he hasn't given us a label.
Speaker 1: FOR i was Just roberts has always felt like he
Speaker 1: reads the. ROOM i don't know what else to. Say
Speaker 1: he just reads the, room and it's, like where should
Speaker 1: we be on?
Speaker 2: This and heavy is the head that wears the. Crown
Speaker 2: he is not just the chief. Justice he is the
Speaker 2: head of a branch of.
Speaker 1: Government and it just sort of feels, like you, KNOW
Speaker 1: i go back to the you, know his most famous
Speaker 1: five to four before anything he ever did With trump
Speaker 1: was the healthcare. Right, yeah and when he became the
Speaker 1: guy that Let obamacare, live it, was you, know he
Speaker 1: found a way to justify it the tax thing and
Speaker 1: you know it's depensable and all this, Stuff but it
Speaker 1: was one of those he was Like, Congress congress intended
Speaker 1: to make this law. Work we should figure out a
Speaker 1: way to make the law, work or something like.
Speaker 2: That, Right LIKE i think he actually presaged what was,
Speaker 2: coming which Was congress not doing. Enough and so When
Speaker 2: congress does do, SOMETHING i should encourage that. Behavior. Right
Speaker 2: it's like when your kid does something. Good they didn't
Speaker 2: do it quite, Right like they were unloading the, dishwasher
Speaker 2: but they dropped the dish and you're, like, no great, Job.
Speaker 2: Love when you unload the, dishwasher definitely don't worry about
Speaker 2: that broken Dish let's just keep the unloading.
Speaker 1: Up, unloading. Right, yeah so that at the end of the,
Speaker 1: day you, know had this been you, know maybe he
Speaker 1: doesn't come down on the side of this law if
Speaker 1: it hadn't been something that originated In.
Speaker 2: Congress, yeah one hundred percent. True he is really there
Speaker 2: policing the line but between the presidency and The, congress
Speaker 2: and he is trying to Give congress a chance to
Speaker 2: to be forced to do their. Job kavanaugh is more
Speaker 2: of that fainthearted. Originalism his level of generality is even
Speaker 2: Above Justice alito's probably bear it as. Well she's the
Speaker 2: formalist of the. Court she's going to check to make
Speaker 2: sure you crossed all your t's and dotted all your
Speaker 2: eyes before you walked in the. Door things like, standing
Speaker 2: do you have the ability to sue where you actually
Speaker 2: injured are going to be really important to.
Speaker 1: Her she's a Rule she's like very the rule follower
Speaker 1: is probably the best way to. Discribe wait a, minute
Speaker 1: you didn't check this box when you file. It, sorry can't, no,
Speaker 1: standing can't take it?
Speaker 2: Right, yeah which her argument would, be that's not just
Speaker 2: her being a, stickler it's actually good for the. Court
Speaker 2: you want to have these like very good vehicles that
Speaker 2: are correctly, positioned because otherwise you don't want the court
Speaker 2: deciding like you don't want the court inserting itself into
Speaker 2: something that isn't actually a problem, Yet and so she
Speaker 2: wants the court to stay out of as many cases
Speaker 2: as possible until it's, like, well we're kind of stuck
Speaker 2: now they have to do. This Soda mayor is the principal, dissenter,
Speaker 2: right the most senior justice in descent gets to assign the. Descent,
Speaker 2: generally in the bigger, cases you will assign it to.
Speaker 2: Yourself that's why you see some of that tension Between
Speaker 2: sodamayor And, jackson Because Soda mayor is supposed to be
Speaker 2: the one writing the big, descent and Then jackson will
Speaker 2: write her own, descent and it's, like stop. IT i
Speaker 2: was just going to.
Speaker 1: Say is it just? Me or do we have more
Speaker 1: people wanting to put pen to paper now than ever?
Speaker 1: Before with these.
Speaker 2: Justices they're taking fewer cases than, ever and they're writing
Speaker 2: more than ever. Before we didn't even used to have
Speaker 2: these concurrences and. Descents until about one hundred years, ago
Speaker 2: and in the nineteen, fifties we were at about, one
Speaker 2: maybe around one concurrence per, case roughly, speaking now we're
Speaker 2: at three an average of three.
Speaker 1: Case was it seven or? SIX i can't remember. Now
Speaker 1: it was just, like, wait they're all over the. Place
Speaker 1: who didn't write like it was a shorter. List you're, like,
Speaker 1: well Not, thomas, right like you, know he, said wait a,
Speaker 1: MINUTE i don't have to Do i'm not doing extra. Credit, no, no, no, no.
Speaker 2: IT'S i think it's bad for the. Court this is,
Speaker 2: where like kavanaughs a million, voices The constitution, says there
Speaker 2: shall be One Supreme court of The United, states not
Speaker 2: nine oracles who each give us their own reading of
Speaker 2: The chicken And. Trails But gorsach And jackson want to
Speaker 2: read The chicken And trails every. Time And Kagan kagan
Speaker 2: is she has poo pooed the heck out of these.
Speaker 2: Concurrences she calls them The, HEY i Think i've got
Speaker 2: something to say throat.
Speaker 1: Clearing, YEAH i. Know it's, like, look everybody wants a.
Speaker 1: Podcast we should just let them have, podcasts you know
Speaker 1: THAT i have something to, say just let them do
Speaker 1: it in a podcast speaking, hobbies.
Speaker 2: The, JUSTICES i write about The justices hobbies a lot
Speaker 2: in the, Book like what movies they?
Speaker 1: Like give me.
Speaker 2: Some, Yeah kagan is a serious poker.
Speaker 1: Player, NO i, KNOW I i know, This, LIKE i
Speaker 1: don't mean she's playing poker with her. Friend, no, no, no,
Speaker 1: NO i. Know let's just Say i'm in A i'm
Speaker 1: in a related poker, game BUT i don't. PLAY i don't,
Speaker 1: WELL i won't play those, Stakes So i'm not in that.
Speaker 1: GAME i know the. Game i'm aware of the you,
Speaker 1: KNOW i always get invited to the smaller steak. One
Speaker 1: that's All i'm going to.
Speaker 2: Say there was also this great MOMENT i, thought So
Speaker 2: Justice barrett was really looking forward to the new season
Speaker 2: Of Slow horses And Justice kagan is Like i've read
Speaker 2: all the, Books like it's like the sort of one
Speaker 2: up like This i've.
Speaker 1: Heard by the, way in the, books are you A
Speaker 1: Slow horse? Fan? Yes in the, Books Gary oldman's character
Speaker 1: is even. Grosser just, so, like how is that?
Speaker 2: Possible?
Speaker 1: Oh apparently that's WHAT i. Thought apparently someone tell me it's, like,
Speaker 1: oh if you're grossed out by what he does of the,
Speaker 1: Show like it's just a taste because the books are just.
Speaker 1: Awful when it comes.
Speaker 2: To, Him, oh here's a fun one THAT i think
Speaker 2: you in particular will. Like Justice alito's favorite. Movie and
Speaker 2: by the, way it's not just his favorite. Movie he
Speaker 2: actually has the like poster In.
Speaker 1: Chambers let's see IF i can guess give me a.
Speaker 2: Topic you will never guess this.
Speaker 1: Ever, OKAY i said that.
Speaker 2: Being there The Chauncey gardner Movie, wow which feels particularly
Speaker 2: appropriate in this.
Speaker 1: Moment it weirdly does with, him especially because you know
Speaker 1: he's sort of an Accidental. Justice he was a backup.
Speaker 1: Plan you, know he was the backup. Plan trying to
Speaker 1: think how many plan b's are on.
Speaker 2: There, well he's a double backup plan, too because if you,
Speaker 2: Remember Sandra day O'Connor retired and they Picked John roberts
Speaker 2: for that. Seat then the days before his, Hearing renquist passes,
Speaker 2: away so they Moved roberts over to Cheap. Justice Then
Speaker 2: Harriet myers gets the O'Connor, seat Then, alito so he's
Speaker 2: almost like the third, pick as Was, kennedy, Right it Was,
Speaker 2: bork Then, ginsburg Then kennedy who got that. Seat The
Speaker 2: ryer was a.
Speaker 1: Double Now briar was a double backup Plan cuomo And
Speaker 1: babbitt If i'm not.
Speaker 2: Mistaken, WOW i mean it's hard to imagine THE Us
Speaker 2: Supreme court Without Stephen.
Speaker 1: Bryer. Oh and he was not the first. Choice he
Speaker 1: was the he Was kennedy's first, CHOICE i, think for
Speaker 1: what it's worth back. Then but remember this was at
Speaker 1: first it was The cuomo thing that.
Speaker 2: Yeah, yeah no you're and and.
Speaker 1: Then Bruce babbitt was and then he had SOMETHING i
Speaker 1: can't remember what it. Was maybe it's. FINANCIAL i don't
Speaker 1: think it was, anything you, know outside of being. Financial
Speaker 1: AND i have no.
Speaker 2: Idea What risberger. Remembered Duggins bring has a dropout because
Speaker 2: he had smoked pot with his, students with his.
Speaker 1: Students do you think he had to drop out because
Speaker 1: it was with students or do you think he would?
Speaker 1: Have you, know it's always been because he smoked weed with.
Speaker 1: Students do you think if it had been weed at
Speaker 1: his house without, students he makes? It or is it eighty?
Speaker 1: SEVEN i still think it's A i still think he's.
Speaker 1: Gone BUT i think he's.
Speaker 2: Gone, YEAH i THINK i think he's. GONE i just you,
Speaker 2: know especially you, know you can think back to the Moment,
Speaker 2: linton years later is still going to have to SAY
Speaker 2: i didn't. Inhale it's like nearly going to derail his.
Speaker 2: Campaign it's going to suck up three weeks of a media.
Speaker 2: Cycle so, like, yeah but the fact that it Was GEORGE. W,
Speaker 2: Bush we're just worried about.
Speaker 1: Cocaine we weren't worried about weed, anymore.
Speaker 2: And, today my, God I'd i'd take the. Cocaine we
Speaker 2: have a teetotaling president in every, respect and it's, like
Speaker 2: you know, WHAT i don't, know maybe the drugs weren't
Speaker 2: so Mat can.
Speaker 1: You imagine what he'd be like on, alcohol on, drugs, like,
Speaker 1: like thank God, TRUMP i mean this could be something you,
Speaker 1: know we always wonder is he self? AWARE i think
Speaker 1: on this he's self? Aware trump on out Drunk. TRUMP i,
Speaker 1: mean it already feels like the country is being led
Speaker 1: by a drunk, Driver LIKE i think we're going to
Speaker 1: go in the correct, direction but we're swerving all over the,
Speaker 1: place AND i just right like and he's stone, cold so,
Speaker 1: exactly you're, like oh my, God like what would happen
Speaker 1: if let me just shows.
Speaker 2: The wisdom in the moderation in all, things including. MODERATION i,
Speaker 2: UH i.
Speaker 1: One, time early in young, adulthood for reasons THAT i
Speaker 1: won't speak of, here, uh took a class about moderation
Speaker 1: and it was An it was an Interesting it was
Speaker 1: about you, know just you, know do a, little don't do.
Speaker 1: This and you're sitting there, going, hmm should we teach
Speaker 1: this in school or? Not because we don't because we're
Speaker 1: afraid we're actually giving a permission slip to, try right.
Speaker 1: Right we don't teach moderation until after you've made a.
Speaker 1: Mistake it's an interesting dynamic for young. People i'm sure you.
Speaker 2: Read Mackay coppin's gambling. Piece oh, yeah if you'd like
Speaker 2: to have more of a you, know a debate at
Speaker 2: the dinner table about the value of moderation or the
Speaker 2: value of abstention, entirely that piece really actually makes you
Speaker 2: think about it in an interesting, way and the sort
Speaker 2: of how religion serves a masked tying purpose in.
Speaker 1: Life it's the upside of, religion, yeah is how it can.
Speaker 1: Serve but let me get you out of hearing, this,
Speaker 1: Okay and it is my AND i think IF i
Speaker 1: remember the last time we, TALKED i, said, hey LOOK
Speaker 1: i want to do, this and you were, like, well
Speaker 1: we have to save. That SO i go back to
Speaker 1: federal seventy, eight AND i go back to one to you,
Speaker 1: know what was the original, Intent and the original intent
Speaker 1: is to get the least partisan political people you can.
Speaker 1: Have so why wouldn't it be seventy five percent of
Speaker 1: THE Us. SENATE i wouldn't have lowered the threshold from
Speaker 1: sixty to fifty when we couldn't do. ANYTHING i would have,
Speaker 1: again if we're dealing with our teenager when they're, past
Speaker 1: when they don't when they're late for, curfew do you
Speaker 1: move the? Curfew oh you didn't make two? Am all,
Speaker 1: Right i'll make it three am so you can Get,
Speaker 1: no you're, like, sorry it's. Midnight now you've lost. Privileges
Speaker 1: you guys can't figure out how to get sixty. Votes,
Speaker 1: sorry now it's seventy. Five. Now the REASON i want
Speaker 1: seventy five IS i think you have to. Force if
Speaker 1: this is the way we're going to appoint The Supreme,
Speaker 1: court then i've you, KNOW i want half of the other.
Speaker 1: Party whatever president's in, power some form half the other
Speaker 1: party have to agree to that. Pick it's not a
Speaker 1: lot to, ask AND i go, back Like i've talked to.
Speaker 1: You you worked in The bush, administration and SO i
Speaker 1: KNOW i have talked to people that worked in The
Speaker 1: Bush council's, office and they, said if you had told
Speaker 1: us it was fifty and not, Sixty John roberts doesn't
Speaker 1: get nominated to The Supreme, Court damn, right.
Speaker 2: Yep so why you?
Speaker 1: Know tell, me how have the proposal for?
Speaker 2: You SO i put this proposal in the. BOOK i
Speaker 2: stole it from Two harvard law, students both Named. Tom
Speaker 2: here's what The tom, suggests AND i am radically in
Speaker 2: favor of it BECAUSE i think the end of the
Speaker 2: filibuster is destroying the judiciary and we are just at
Speaker 2: the er.
Speaker 1: Blue WHETHER i buy the idea that they are all individual,
Speaker 1: thinkers but guess, what most of The american public. Thinks
Speaker 1: they're no more black, robes they're red and.
Speaker 2: Blue And biden's picks were more liberal Than. Obama's trump's
Speaker 2: picks are more conservative Than. Bush's and it's this idea
Speaker 2: that if you can't get a vote from the other,
Speaker 2: side like we used to have general, elections so you
Speaker 2: used to run to the middle if you wanted to
Speaker 2: be a, judge and that. Included in law, SCHOOL i
Speaker 2: had tons of friends who were very politically liberal because
Speaker 2: we all were, like you never know someday and now
Speaker 2: without the, filibuster it's a primary, election and so you're
Speaker 2: running to the. Extremes and we see the effects in
Speaker 2: law students where they chee even having friends who disagree
Speaker 2: with them, ideologically because that could show someone ten years
Speaker 2: down the road that they were. Squishes you, know they
Speaker 2: don't really mean by the.
Speaker 1: WAY i Think i've told you a piece of the story,
Speaker 1: offline But i'll share it. HERE i had somebody very
Speaker 1: close to me who had who was asked about whether
Speaker 1: they'd be interested in a federal judicial federal. Judgeship but
Speaker 1: the requirement was they had to join The Federal. Society
Speaker 1: like there was like an actual requirement before they could
Speaker 1: ever be nominated.
Speaker 2: Because they will get confirmed right.
Speaker 1: Now and you're just, like, WAIT i have to join
Speaker 1: in some private club like this this person to any
Speaker 1: of these, Clubs like that's just you, know this is
Speaker 1: not and you're just like what, Right like what do we?
Speaker 2: Do, okay here's the, proposal because there was a, problem you,
Speaker 2: know like there's a reason they got rid of the.
Speaker 2: Filibuster Harry reid thought that The republicans were being unreasonable
Speaker 2: in not confirming judges to the D C. Circuit The
Speaker 2: republicans wanted revenge because The democrats refused to Confirm Miguel
Speaker 2: estrada to the D C circuit because they wrote this,
Speaker 2: down by the, way because he Was, latino yeah, somehow.
Speaker 1: Yeah that this was going to Help, republicans.
Speaker 2: Right, Yep and so because of his race they would
Speaker 2: not confirm. Him republicans were very very. Upset. Understandably, okay
Speaker 2: here's the. Proposal there's two ways to get confirmed to
Speaker 2: A article three. Judgeship number one is the old. Way
Speaker 2: if you get more than sixty, votes you are. Confirmed. Congratulations.
Speaker 2: Great if you do, not but you get a bare
Speaker 2: majority fifty one, votes you are provisionally. Confirmed and after
Speaker 2: the next election For, congress so you, know the every two,
Speaker 2: years whether it's a general or a, midterm your nomination
Speaker 2: automatically comes up, again regardless of whether The president renominates,
Speaker 2: you and The senate will vote. Again if you get
Speaker 2: fifty one, votes, again you are, confirmed because then the
Speaker 2: voters have actually gotten to weigh in on who was
Speaker 2: the good faith. Actor and what's great is that their
Speaker 2: proposal works for legislation, too and it would actually make
Speaker 2: our congressional elections about real things and not. Vibes it
Speaker 2: could make them about policy questions and legislation that's, pending
Speaker 2: or about judicial picks and which side is you, know
Speaker 2: not refusing to compromise or acting in bad. Faith AND
Speaker 2: i love getting the voters involved in.
Speaker 1: This you, know the state Of, NEVADA i believe you,
Speaker 1: have a referendum has to pass twice before it gets
Speaker 1: added to their. Contry if you do, it is, yeah
Speaker 1: a good to do it two cycles in a. Row, yeah.
Speaker 2: Yeah, anyway that's my proposed solution in the book to
Speaker 2: how you fix the confirmation.
Speaker 1: Wars that's not. BAD i, mean LIKE i, Said i'd
Speaker 1: just go to seventy five and you, know and you
Speaker 1: would get a certain type of person picked right, Eventually,
Speaker 1: no AND i think even in this the one you're,
Speaker 1: describing you don't want to have the person come up
Speaker 1: the second, Time so you're probably going to try to
Speaker 1: find somebody who can get.
Speaker 2: Sixty so, yeah you're gonna have to wait for two
Speaker 2: years to fill, that you.
Speaker 1: Know like and by the, way in case people are,
Speaker 1: wondering it's simple Active congress can decide.
Speaker 2: This oh, yes, right, yep they.
Speaker 1: Don't there's nothing in The constitution that says how The
Speaker 1: senate should confirm these.
Speaker 2: Justices do you know what else they could fix really
Speaker 2: easily with An act Of, congress maybe the Same act
Speaker 2: Of congress forum. Shopping there is no reason if you
Speaker 2: were asking for nationwide relief of whatever, kind or if
Speaker 2: you are challenging an executive order you know, regulation that
Speaker 2: you should be able to pick which district you file
Speaker 2: in because you think it's a friendly. District you, know
Speaker 2: you could be the most fair judge in the. World
Speaker 2: but if everyone knows that one side keeps picking, you
Speaker 2: you're not going to look very fair no matter how you.
Speaker 2: Rule And congress could fix that. Tomorrow there's nobody who
Speaker 2: will defend this. System it is bad for the, judiciary
Speaker 2: it's bad for the rule of, law and it's bad
Speaker 2: for The Supreme court because that's how a bunch of
Speaker 2: these cases keep getting to.
Speaker 1: Them, Well, SARAH i think you. Are you are becoming
Speaker 1: my favorite go to person on all things legal in
Speaker 1: The Supreme. Court sorry to my Friend. Ms, Totenberg sorry
Speaker 1: to my friend With Pete williams down retirement you, know
Speaker 1: you're you're my go. To, okay just to.
Speaker 2: Be, Clear pete And nina are my. HEROES i just
Speaker 2: event you, like and.
Speaker 1: They're On Mount. Rushmore don't get me, wrong they really,
Speaker 1: are but you, know And Willie mays was an amazing baseball.
Speaker 1: Player but show Hey otani And Aaron judge dominating, today
Speaker 1: they were you're Your it is your, Time Miss.
Speaker 2: Sisker all honor To pete And, Nina, yes who have
Speaker 2: been so supportive of me and of this. Book they
Speaker 2: have helped me behind the scenes. Enormously so do you
Speaker 2: stand on their.
Speaker 1: Shoulders the Entire Supreme Court press cort seems very, collegial
Speaker 1: And i'm incredibly impressed about.
Speaker 2: It LIKE i can see your rattle off, names but Like,
Speaker 2: Laura jared is my best. Friend Devin dwyer AND i
Speaker 2: text every. Day Amy howe is the most amazing human and.
Speaker 2: COLLEAGUE i hear.
Speaker 1: This all the. Time And pete would tell me. STORIES
Speaker 1: i used to, like would go Into pete's. Office, Hey,
Speaker 1: pete tell, me so tell me about your lunch with you,
Speaker 1: know the yearly lunch you got to have with the
Speaker 1: with The Chief justice and you, know, WELL i can't say,
Speaker 1: this BUT i can tell you generally WHAT i. Hear you,
Speaker 1: KNOW i can IMPRESSION i, Well lewis is one of
Speaker 1: my is one of my all time favorite people in the.
Speaker 1: World that's his real first. Name don't tell Any he's
Speaker 1: to charles me all the. Time so whenever he charles,
Speaker 1: me he got.
Speaker 2: Lewised you, know At John Carroll university Where Tim russert
Speaker 2: went and they have The Tim russer at, school there
Speaker 2: Is Pete week twice a, year AND i went For
Speaker 2: Pete week this, year and.
Speaker 1: Well you should. Come you need to come On may.
Speaker 1: Seventeen you need to come On, Sunday may. Seventeenth that's
Speaker 1: commencement because there's somebody that's going to be giving a commencement.
Speaker 1: Speech oh, Interesting SO i might see you there if
Speaker 1: you choose to. Come i'm Hoping, pete but we're going
Speaker 1: to find out If pete. Comes i'm hoping he will.
Speaker 1: COME i think he'll be. There we all at U
Speaker 1: X nbc or is always pay homage to our friends
Speaker 1: A John.
Speaker 2: Carroll, yes it's an amazing.
Speaker 1: School, anyway congrats on the book you're Gonna is it
Speaker 1: all a virtual book? Tour do you get to go places.
Speaker 2: No let's. See, yeah this podcast will be released On tuesday.
Speaker 1: Week.
Speaker 2: Yeah, Yeah so this WEEK i am At Harvard Law,
Speaker 2: School university Of, Denver San, francisco and Then i'll be
Speaker 2: Doing Bill maher On.
Speaker 1: Friday the law school visits are going to be.
Speaker 2: AWESOME i love that talking to law. Students that's BECAUSE
Speaker 2: i wrote this, book you, know for me before law.
Speaker 2: SCHOOL i went to law school BECAUSE i Watched Legally
Speaker 2: blonde and was, like, yeah that makes sense for my.
Speaker 2: FUTURE i can do El woods and LIKE i needed
Speaker 2: to read this book BECAUSE i had no. Idea CAN i, Ask.
Speaker 1: Okay i'm going to make myself feel old Because i'm
Speaker 1: doing this on behalf of some of my. Listeners, yeah
Speaker 1: did you at least go back in time and Watch Paper?
Speaker 2: CHASE i read a Paper chase and one l By
Speaker 2: Scott turow the summer BEFORE i went to law. School
Speaker 2: BUT i got to tell you WHEN i show, Up
Speaker 2: Elena kagan is my. Dean that's you, know HOW i
Speaker 2: get to know her AS i talk about in the,
Speaker 2: book and it is a totally different. Place CAN i
Speaker 2: give you one example of what it means to have
Speaker 2: a dean Like Elena? Kagan SO i lived across the
Speaker 2: street and one block up from the law, school and
Speaker 2: so every Morning i'd like pack up all my Books
Speaker 2: they're incredibly, heavy and like go to the law school
Speaker 2: for the. Day And Elena kagan put tampons in the
Speaker 2: bathroom because if you got your period while you were
Speaker 2: at law, school you would have to go all the way.
Speaker 2: Home and it was giving men this advantage basically because
Speaker 2: they were able to stay in the library and the
Speaker 2: women were having to like go home. Sometimes and it
Speaker 2: was so thoughtful and as silly and small as that,
Speaker 2: sounds it imbued everything she did at the law school
Speaker 2: and the type of very thoughtful dean she was.
Speaker 1: To make leveling the playing field that was leveling the playing.
Speaker 2: Field, yeah, yeah we had she put in a sand
Speaker 2: volleyball court like on campus so we, could you, know
Speaker 2: get a little. Exercise there were happy hours On, thursdays
Speaker 2: hot dogs and ice.
Speaker 1: Cream you think she's doing that to this, Day come, On,
Speaker 1: clarence let's it's hot.
Speaker 2: Dogs let's.
Speaker 1: Go she's a big baseball. FAN i know that she.
Speaker 2: Shows up at the clerk happy hours. Sometime so Every
Speaker 2: thursday there's a cleerk happy hour at the court and
Speaker 2: she is one of the justices known to swing by
Speaker 2: because she likes the. Tea, MAN i don't mean the,
Speaker 2: drink you, know she likes the hot goss as the kids.
Speaker 2: Say BUT i do note in the book that ice
Speaker 2: luges have been banned from The thursday happy, hours.
Speaker 1: Which means they were once, there which is.
Speaker 2: Yes they.
Speaker 1: Were, Yeah WELL i this you have really sold. It,
Speaker 1: WELL i will tell you that you have sold this. Book, well.
Speaker 1: Congrats and my only concern is it's the last branch
Speaker 1: standing for, now, yes right or? Now because we have
Speaker 1: this is you, know this is the last court that
Speaker 1: has people on it that's been produced by a sixty
Speaker 1: vote threshold in order to sort of get into the.
Speaker 1: System when we start to have a court that is
Speaker 1: majority fifty vote, only that feels like an even more
Speaker 1: unruly court than we've ever.
Speaker 2: Experienced we have not yet seen the results of our
Speaker 2: current political moment on this court because the court is
Speaker 2: always a lagging into indicated.
Speaker 1: Right first ten, years, right we're in the first ten
Speaker 1: years of The.
Speaker 2: We've got a few years left to fix some of this.
Speaker 2: STUFF i have my reforms in the back of the.
Speaker 2: BOOK i have some proposed amendments as well so, yeah.
Speaker 1: Awesome, congrats thank you for spending time with, me And
Speaker 1: i'm going to be bugging you. Again Maybe thumbnet you'll
Speaker 1: decide you want somebody who does not have a legal
Speaker 1: background to be on, advisory but we'll, say.
Speaker 2: Oh perish the.
Speaker 1: Thought thank.
Speaker 2: You, bye