Speaker 1: You're listening to Comedy Central. Hey, welcome to Beyond the Scenes.
Speaker 1: This is the Daily Show podcast that goes a little
Speaker 1: deeper into segments and topics that originally aired on the show.
Speaker 1: You know what the Daily Show is, but we give
Speaker 1: you a little extra more than what your thought. You
Speaker 1: know what this podcast is. This podcast is like when
Speaker 1: you go to the strip club. Right, You go to
Speaker 1: the strip club to be entertained and eat a little
Speaker 1: bit of food, and then on the way out of
Speaker 1: the strip club, one of the dancers pulls you to
Speaker 1: the side and says, if you really miss it, you
Speaker 1: should just call her. It's never too late to try
Speaker 1: love again. That's what this podcast is. Today, we're talking
Speaker 1: about something that might be a little more serious than
Speaker 1: what advice you get at the strip club. We're talking
Speaker 1: about the Supreme Court. Give me a clip call the.
Speaker 2: Past fifty years, ever since the Supreme Court decided Roe v. Wade,
Speaker 2: women in America have had the right to choose whether
Speaker 2: or not to have an abortion, and now it looks
Speaker 2: like that right is going away. While many people are
Speaker 2: upset about the decision itself, some people are only upset
Speaker 2: that we're hearing about the decision.
Speaker 3: This is as corrosive as destructive to the Supreme Court
Speaker 3: as we've ever seen.
Speaker 1: This is an insurrection against the Supreme Court.
Speaker 4: It is not up to a law clerk to decide
Speaker 4: when the decision of the Court will be announced.
Speaker 5: They should have never happened.
Speaker 4: They should be able to make decisions in private and secret,
Speaker 4: and then once they're ready to decide and let the
Speaker 4: country know how that they have ruled, let it out.
Speaker 2: Yeah, yeah, I like that a lot. I understand why
Speaker 2: these people are upset. You heard what they said. The
Speaker 2: conservative majority on this Court has a fundamental right to
Speaker 2: choose when they want to release a decision into the world.
Speaker 2: Imagine having some random person violate your privacy and make
Speaker 2: that choice for you.
Speaker 6: Who would do such a thing.
Speaker 1: The newest Supreme Court term began in early October, and
Speaker 1: today I've got three guests to help me break down
Speaker 1: where we are with everything going on in the Scotus.
Speaker 1: First up, we have Daily Show supervising producer and writer
Speaker 1: who happens to be a former attorney juven praying, how
Speaker 1: you're doing, Jubs, Good to see you.
Speaker 7: I'm doing great, Roy, Thank you, Thank you so much.
Speaker 8: By the way, for my first appearance of this podcast
Speaker 8: to give me this trip club intro. I really appreciate that.
Speaker 1: Yeah, I'm really sorry that I had a little bit
Speaker 1: of a melt down there at the top of the show.
Speaker 1: Love is an illusion, juven never forget that. Next, we
Speaker 1: have the editor of Scotus Blog, a corner of the
Speaker 1: Internet where you can read up on what's happening with
Speaker 1: the Supreme Court and they tell you everything that's going on.
Speaker 1: It's all right out there in the open and maybe
Speaker 1: it'll help you Asia Civics test. James Romoser. James, welcome
Speaker 1: to Bey on the Scenes.
Speaker 6: Thank you so much for having me.
Speaker 1: Happy to be here and finally joining us. The aco
Speaker 1: u's legal director and fun fact, he taught both Juben
Speaker 1: and James at Georgetown Law. David Cole, Welcome to your
Speaker 1: class reunion. But first I have to ask before we start, David,
Speaker 1: who was the better student, James or Juben.
Speaker 9: I think I gotta get I think I gotta give
Speaker 9: them both a pluses.
Speaker 10: Distinguish, can't distinguish.
Speaker 6: My transcript says, I gotta be honest and.
Speaker 9: Just retrospectively by the fact that they've made it all
Speaker 9: the way to this podcast A plus.
Speaker 1: Yes, fair enough. Fair enough. Well, then, since you are
Speaker 1: the professor, I'll start with you, David, you know, and
Speaker 1: Juben James. You don't feel free to jump in, but
Speaker 1: be respectful to your professor, right and shut your ass up. Uh.
Speaker 1: The last Supreme Court session, David, you know, it wrapped
Speaker 1: up last June, and it was pretty contentious. There was
Speaker 1: a lot of you know, back and forth on a
Speaker 1: lot of cases that don't necessary only find their way
Speaker 1: to the top of the media cycle. Just to start
Speaker 1: this whole conversation off, what were some of the bigger
Speaker 1: cases and issues that were decided during the last go
Speaker 1: de session.
Speaker 10: It was a brutal term. You know.
Speaker 9: President Trump appointed three justices to the Court during his time,
Speaker 9: and he promised that they would overturn Roe versus Wade,
Speaker 9: And sure enough, in their first full term on the court,
Speaker 9: they took a case that they did not have to take,
Speaker 9: and they threw out a constitutional right that every woman
Speaker 9: of child bearing age has grown up depending upon. Really
Speaker 9: a remarkable decision in Dobbs. But they didn't stop there.
Speaker 9: They then went on to strike down a New York
Speaker 9: law that says, you know, you can't carry a gun
Speaker 9: on the streets of Manhattan unless you have a reason
Speaker 9: for carrying a gun on the streets of Manhattan, and
Speaker 9: you got to get a permit for doing so. Over
Speaker 9: a century old law struck it down under the Second Amendment,
Speaker 9: and then they essentially turned the religion clauses on their head.
Speaker 9: It used to be that the religion clauses required separation
Speaker 9: of church and state. But in two cases last term,
Speaker 9: the court held the football coach high school football coach
Speaker 9: had the constitutional right to pray publicly at the end
Speaker 9: of every game, contrary to his school's direction. And in
Speaker 9: a case out of Maine, they held that the state
Speaker 9: of Maine was constitutionally required to fund religious school private
Speaker 9: schools if they're funding secular private schools. So you know,
Speaker 9: where the Constitution used to say separation of church and state,
Speaker 9: now the Constitution requires the state to support religion and
Speaker 9: requires the state to allow its officials to pray publicly
Speaker 9: at you know, at the football game of all places.
Speaker 9: So you know, and in all those cases they overturned
Speaker 9: you know, years of precedent, fifty years of precedent and
Speaker 9: Dobbs one hundred years of precedent with respect to the
Speaker 9: New York gun carrying law and decades of precedent on
Speaker 9: the religion clause cases.
Speaker 1: Okay, so religion, women, guns, Thank god the environment wasn't.
Speaker 10: Oh yeah, yeah, I missed that one. I missed that one.
Speaker 1: So yeah, yeah, so what about that one? Had to
Speaker 1: had to reverse the precedent on the environment give us.
Speaker 8: That constitutionally, it does not have the right to exist.
Speaker 8: It turns out, yeah, very amazing, amazing.
Speaker 9: It turns out the EPA is unconstitutioned. No, they did
Speaker 9: not rule that the Environmental Protection Agency is unconstitutional, but
Speaker 9: they did rule that the Environmental Protection Agency did not
Speaker 9: have the authority to require the plants that produce electric
Speaker 9: power for the grid to shift from coal power plants
Speaker 9: to other, more green sources of energy. They made up
Speaker 9: a new doctrine called the major questions doctrine, which poessentially says,
Speaker 9: if we don't like what a statute says, we'll say
Speaker 9: it's really important and it's major, and unless Congress has
Speaker 9: expressly provided precisely what the agency should do, we'll say
Speaker 9: the agency.
Speaker 10: Has no power.
Speaker 9: And you know, Congress is essentially moribund these days, it
Speaker 9: can't really pass virtually anything. So the notion that it
Speaker 9: has to kind of legislate in detail in order to
Speaker 9: allow us to deal with things like climate change is
Speaker 9: a recipe for disaster.
Speaker 1: Okay, So as I attempt to not pull my hair
Speaker 1: out at everything that you just said, James, all of
Speaker 1: these things that David was just talking about went through
Speaker 1: one Supreme Court session. There's a year. I would say,
Speaker 1: how does all of this like not get the same
Speaker 1: level of public attention or has it been getting it exposure?
Speaker 1: And we the public have just been too busy watching
Speaker 1: Dancing with the Stars and the Kardashians and not paying attention.
Speaker 10: Yeah.
Speaker 6: Well, it's interesting. I think that the Dobs decision took
Speaker 6: up so much oxygen from the room that people were
Speaker 6: so laser focused on that case and to some extent
Speaker 6: the guns case as well that David talked about. But
Speaker 6: some of these other cases about religion, about climate change,
Speaker 6: and that there were others as well that we haven't
Speaker 6: even touched on, would have been blockbuster cases that would
Speaker 6: have gotten massive coverage in any other term. But because
Speaker 6: you know, the abortion decision was so monumental, you know,
Speaker 6: some of these other cases with also far reaching implications,
Speaker 6: you know, maybe got pushed under the radar. You know
Speaker 6: a little a little bit, but I think if you
Speaker 6: look at all of the cases and the totality of
Speaker 6: the term, what you see is a court that is
Speaker 6: choosing to take up cases in order to move the
Speaker 6: law in a new direction, and a clay conservative direction.
Speaker 6: As David said, the Court has a lot of discretion
Speaker 6: in which cases it wants to hear. There's no need
Speaker 6: necessarily to hear the abortion case. There's an affirmative action
Speaker 6: case we'll probably talk about later that there's really no
Speaker 6: need for the Court to take up that case, but
Speaker 6: the Court decided that they're going to hear it, and
Speaker 6: just by virtue of taking up basically the most divisive
Speaker 6: issues in American life and American policy, the Court is
Speaker 6: really intervening in these debates in ways that it doesn't
Speaker 6: necessarily have to, but reflects the ideological commitments of the
Speaker 6: court's new members.
Speaker 9: Well, and also, I would say reflects a lack of
Speaker 9: kind of judgment and modesty. I mean, when you have
Speaker 9: three new justices put on a court by a president
Speaker 9: who expressly and publicly proclaims I'm putting these people on
Speaker 9: the court to overturn Row versus Wade, I think, you know,
Speaker 9: a hodest Court would say, well, let's not you know,
Speaker 9: make number one on the agenda overturning Roe versus Way,
Speaker 9: because then it looks like we're just doing the president's bidding.
Speaker 10: We're not acting like judges. Uh.
Speaker 9: And so you know, I think most people predicted that
Speaker 9: the Court would not overturn Roe versus Way. It would
Speaker 9: maybe you know, limited at the edges. But boy, as
Speaker 9: soon as you you know, we we we heard the
Speaker 9: argument in that case, it was clear they were they
Speaker 9: were going for it, and they have not slowed down,
Speaker 9: as as James indicated in the cases that they're going
Speaker 9: to hear this term.
Speaker 1: So with Juveen on the show, now, I don't know,
Speaker 1: you know how he was as a student there with you, David,
Speaker 1: but well they.
Speaker 8: Said a plus. So I think we can assume that's accurate.
Speaker 8: And in every respect, I don't think we needed to
Speaker 8: We don't need to take any further into he.
Speaker 10: Made He made a great He made a great joke
Speaker 10: in every class.
Speaker 7: You know, I wasn't trying to I was just trying
Speaker 7: to answer the questions.
Speaker 1: Unfortunately, Juben is what I believe to be one of
Speaker 1: the emotional col in the writer's wing in that as
Speaker 1: a writer on the daily shows, You've been, you know,
Speaker 1: and as a performer, we have to take in a
Speaker 1: lot of the worst news all the time and then
Speaker 1: figure out a way to make it funny. And sometimes
Speaker 1: you have to do that without feeling. But You've been
Speaker 1: somehow is mastered with the art of feeling empathy within
Speaker 1: the story and making sure that that heart is honored
Speaker 1: within the piece in addition to the comedy, so like,
Speaker 1: so's you been?
Speaker 10: Like?
Speaker 1: What are what are some of the conversations that you
Speaker 1: and Trevor had, you know, as a team, because I'm
Speaker 1: not always over there, because y'all send me to Atlanta
Speaker 1: to be in a kayak in sneakers because nobody told
Speaker 1: me that I needed kayak shoes and I was wearing
Speaker 1: a good as Anyway, it.
Speaker 8: Was funny though, right, it was funny on the back
Speaker 8: it was a very.
Speaker 1: Good piece when you and Trevor and the rest of
Speaker 1: the writing team were reacting to Roe v Wade in
Speaker 1: that whole leak and its eventual overturn, how do you
Speaker 1: all manage striking the right tone? Because the country was angry,
Speaker 1: and there's a lot of time when people don't want
Speaker 1: to necessarily laugh, But how do you all maintain the
Speaker 1: balance of empathy versus anger, versus humor when you're dealing
Speaker 1: with all of the Supreme Court decisions?
Speaker 8: You know, it's like when you were saying earlier, you
Speaker 8: really just have to channel all the jokes through the emotions.
Speaker 8: And by doing that, by honoring the emotion, it gives
Speaker 8: you the permission, both in your own psyche and also
Speaker 8: to the audience to make the jokes. You can't pretend
Speaker 8: that people are not upset about this. You can't pretend
Speaker 8: this is not a change and just make jokes sort
Speaker 8: of divorced from those feelings.
Speaker 7: You'll come off either.
Speaker 8: Cruel or indifferent, and the jokes won't have that extra
Speaker 8: punch to them. So the challenge I think as a
Speaker 8: comedy writer, especially for topical stuff, is identifying what it
Speaker 8: is that is making you feel whatever you are feeling
Speaker 8: about an issue and then articulating that emotion on the
Speaker 8: way to a joke. And the way we did that
Speaker 8: with the with the abortion, with the leak of the
Speaker 8: job decision, and eventually the decision itself was you know,
Speaker 8: especially with a lot of the writers who are feeling
Speaker 8: very disappointed and very angry with not just the Justices,
Speaker 8: but also with the Democratic Party apparatus that was more
Speaker 8: interested in fundraising off of this than doing anything in
Speaker 8: the months between the leak and the decision to use
Speaker 8: their power to do something about it. You know, the
Speaker 8: senators like Collins and Mansion who were shocked, just absolutely
Speaker 8: shocked that they had been tricked by the Justices into
Speaker 8: voting for them when they were assured so firmly that
Speaker 8: Roe v. Wade was a precedent. One of the jokes
Speaker 8: we had about that was that why does Susan Collins,
Speaker 8: why she never tricked into doing anything good?
Speaker 2: It seems like the only people on the planet who
Speaker 2: didn't realize what was happening would Joe Manchin and Susan Collins,
Speaker 2: who now say that they were tricked, tricked, I tell you,
Speaker 2: by these judges. And by the way, why does Susan
Speaker 2: Collins never get tricked into improving healthcare or solving climate change?
Speaker 3: Huh?
Speaker 2: Yeah, she's never like, oh damn it, I accidentally canceled
Speaker 2: student loan debt.
Speaker 6: Get it together, silz.
Speaker 8: And because people don't come to you know, a comedy show,
Speaker 8: you know, looking to not laugh if you are not
Speaker 8: providing those jokes, then you are not You're just opining,
Speaker 8: and you can go anywhere to find opinions. That's the
Speaker 8: challenge of comedy writing is it's hindly that emotion into
Speaker 8: jokes that resonate with those feelings.
Speaker 7: And I think, you know, especially it helps with you.
Speaker 8: We had we had this delight to come on after
Speaker 8: the decision was leaked and then was overthrown to talk
Speaker 8: about her feelings that she was doing through a weather
Speaker 8: report about all the parts of the country. They're going
Speaker 8: to be devastated by this, that you're going to see
Speaker 8: all the influx of people trying to go like a
Speaker 8: hurricane into other states to get abortions.
Speaker 3: Now, let's take a look at what's happening along the coast,
Speaker 3: particularly in New York and California, where there is a
Speaker 3: powerful surge of desperate people flooding into your states. So
Speaker 3: blow up those air mattresses and fill up that gas tank.
Speaker 3: Because Tammy from Tulsa's moving in.
Speaker 8: Doing jokes through the weather her while being very clear
Speaker 8: what she's actually talking about, I think builds up a
Speaker 8: very funny tension that by the end of it, when
Speaker 8: Trevor's like, this isn't really about the weather, and she's like, no,
Speaker 8: it's not. Fuck sam Alito and anybody who tells us
Speaker 8: what women can do with their bodies. That kind of
Speaker 8: releases that and there's a there's a rhythm to this
Speaker 8: and a music to it that you need to have
Speaker 8: and you can only have that by going through the
Speaker 8: emotions that you're feeling.
Speaker 3: The real weather event is happening over at the Supreme Court. Now,
Speaker 3: our storm centers have been tracking this for years, so
Speaker 3: we knew this acid rain was coming. But that doesn't
Speaker 3: mean it still doesn't burn the hell out of our twats.
Speaker 3: So that's the weather.
Speaker 4: Back to you, Trevor, I think, uh, thank thank you,
Speaker 4: thank you very much, Daisy.
Speaker 2: But clearly that wasn't about the weather.
Speaker 3: I no, no, it wasn't sam Alito and anyone else
Speaker 3: who tells a woman what to do with their own body.
Speaker 1: Here's a question for the three of you, what changed
Speaker 1: within this within the ideology of the Supreme Court. Because
Speaker 1: the thing is that, you know, the Court since the
Speaker 1: seventies has been majority Republican appointed. That's not a new thing,
Speaker 1: but it seems like the decisions that the Court has
Speaker 1: been making are more aggressively conservative. What do you think
Speaker 1: was the match that lit the fuse on this kind
Speaker 1: of change in ideology and adjudication.
Speaker 6: Well, it's true that the Court has been majority Republican
Speaker 6: appointed for many decades, but you know, until recently, Judge,
Speaker 6: there was no ideological purity test for justices, or at
Speaker 6: least it certainly wasn't as extreme as it is now.
Speaker 6: And so former justices like Sandra Dale O'Connor and John
Speaker 6: Paul Stevens and David Souter, these were all Republican appointed justices,
Speaker 6: but these were turned out to be liberal to moderate
Speaker 6: justices on the Supreme Court. That no longer happens now.
Speaker 6: Republican presidents are quite certain that every justice they appoint
Speaker 6: will be a hardcore conservative and will sort of, you know,
Speaker 6: take consistent ideologic, ideological positions with the Republican parties, policy preferences,
Speaker 6: and the legal views of the federal society. And there
Speaker 6: are many reasons for that. There's been, you know, an
Speaker 6: emphatic movement on the right, in particular to support a
Speaker 6: legal conservative establishment and appoint people within that movement to
Speaker 6: lower court justices who eventually rise to the ranks and
Speaker 6: get vetted and become the top candidates for justice lots
Speaker 6: under Republican presidents.
Speaker 10: I think that's right.
Speaker 9: I think, you know, it's also you know, the right
Speaker 9: likes to criticize the left for being woke, but the
Speaker 9: right is very rigid in terms of what kinds of
Speaker 9: legal views are going to be acceptable within the our
Speaker 9: you know, structure that is, you know, at the top
Speaker 9: of which is the Federalist Society, an organization that started
Speaker 9: actually when I was a law student, but has become
Speaker 9: incredibly powerful, and to which President Trump essentially assigned the
Speaker 9: job of identifying judges and justices. And the other thing
Speaker 9: that I think that has changed, which is really significant,
Speaker 9: is that you no longer have to get over a
Speaker 9: filibuster to confirm a Supreme Court justice. So until you know,
Speaker 9: the end of the Obama administration, essentially every judge, every
Speaker 9: federal judge, had to be approved by sixty senators, which
Speaker 9: meant that you had to get some support from the
Speaker 9: other party. The Democrats got rid of the filibuster when
Speaker 9: the Republicans started using it across the board just to
Speaker 9: be obstructionist.
Speaker 10: They got rid of it for for.
Speaker 9: Lower federal court judges this but the Republicans got rid
Speaker 9: of it for the Supreme Court. Once you do that,
Speaker 9: you got fifty votes in the Senate. You don't have
Speaker 9: to look for someone who's moderate, you don't have to
Speaker 9: look for someone who has an open mind. You don't
Speaker 9: have to try to appease the other side. And you
Speaker 9: know that, and Trump just you know, ran with that,
Speaker 9: and so.
Speaker 1: That under Trump, I just want to make sure we
Speaker 1: make that clear.
Speaker 9: Yeah, for Supreme Court justices. But but the Democrats got
Speaker 9: rid of it for judges. But because it had been
Speaker 9: abused by the Republican Party for a long time, it
Speaker 9: was used sparingly, and then the Republicans just started using
Speaker 9: it across the board, absolutely regardless of who Obama put up.
Speaker 9: And so then you know that that led Harry to say,
Speaker 9: we're going to get rid of it for for for
Speaker 9: district court and Court of Appeals judges, not for the
Speaker 9: Supreme Court. But then McConnell got rid of it for
Speaker 9: the Supreme Court.
Speaker 8: You know, it actually is interesting to me as as
Speaker 8: the the the idea that the Supreme Court and that
Speaker 8: the legal system in general has always been just an
Speaker 8: extension of politics by other means. It's always been like
Speaker 8: a critique of the left. But I feel like I'm
Speaker 8: thinking about this, but something used to you said earlier, David,
Speaker 8: that it feels like this idea that that the courts
Speaker 8: are just simply another part of the a political project
Speaker 8: seems to have now been adopted by almost everybody in
Speaker 8: the system. Now there's no longer any perception that this
Speaker 8: is a court that has any legitimacy or role to
Speaker 8: play outside of a political project. And I wonder, to
Speaker 8: the extent that you were saying that, even with Congress
Speaker 8: also driven down to gridlock, if this was necessarily going
Speaker 8: to bring the court into a role like this, or
Speaker 8: if this is just part of the larger collapse of
Speaker 8: institutions into this kind of like ever grinding political culture
Speaker 8: war that seems to have been accelerating the last like
Speaker 8: twenty thirty years.
Speaker 10: Yeah. No, I think it is the latter.
Speaker 9: I think it's really hard for any institution to stay
Speaker 9: above the fray when the country is so divided, So
Speaker 9: it makes everyone, you know, sort of sort themselves into
Speaker 9: into into the into one camp or the other, and
Speaker 9: if you try to maintain something in the middle, you
Speaker 9: just get you know.
Speaker 10: Killed by both sides. So there's there.
Speaker 9: It's it's partly that you know, I do think still
Speaker 9: that the ideal is important and that a lot of
Speaker 9: judges and including some justices uphold this ideal, which is
Speaker 9: that you know, they're not partisan acts. They're supposed to
Speaker 9: actually apply the law. They're supposed to be guided by
Speaker 9: the law. There they are, they are not allowed to
Speaker 9: do as members of Congress can just just vote party
Speaker 9: line down the line. But last term they didn't act
Speaker 9: that way, and their approval rating across the country has
Speaker 9: dropped to twenty five percent, which is probably above Congress,
Speaker 9: but it is the lowest the Supreme Court approval rating
Speaker 9: has been. I believe, you know, since we've done approval
Speaker 9: ratings of the Supreme Court, and that's because I think
Speaker 9: people see exactly what you're talking about doing that they
Speaker 9: you know that the court is not acting like a court.
Speaker 9: It's not doing what you're supposed to do. And when
Speaker 9: you're not, you know, when you don't have to run
Speaker 9: for reelection, when there's no democratic constraint on you, you know,
Speaker 9: your legitimacy turns on acting like a court being bound
Speaker 9: by law. When you throw out a fifty year old
Speaker 9: constitutional precedent simply because you know, President Trump got three
Speaker 9: appointees on the court. Just exercise your muscles to do that.
Speaker 9: People say, wait a minute, this is not a court anymore,
Speaker 9: and so we're not going to give it the difference
Speaker 9: that it would.
Speaker 10: Otherwise be due.
Speaker 9: And that's that's a very dangerous thing, I think for
Speaker 9: this society, because you do need an institution that can
Speaker 9: resolve differences that people will accept as legitimate. And you
Speaker 9: know they're they're I think they're putting that into jeopardy.
Speaker 1: After the break, I want to dig a little bit
Speaker 1: more into exactly that, and let's discuss what this means
Speaker 1: for the future of the Supreme Court and what means
Speaker 1: for the future of lawmaking. We'll be right back after
Speaker 1: the break. This is beyond the scenes. Beyond the scenes,
Speaker 1: we are back. We are talking about the Supreme Court
Speaker 1: of the United States, or as I call it in
Speaker 1: the barbershops, Scotus. This is just in a side James.
Speaker 1: You got the Scotus blog and you lay everything out
Speaker 1: week to week on what's going on in the court.
Speaker 1: Why don't the Supreme Court have a channel? They need
Speaker 1: a like we got Court TV and we'd be watching
Speaker 1: all these state and local cases. We don't need that shit.
Speaker 1: The Supreme Court needs a camera there so we can
Speaker 1: see this shit happening and unfolding in real time.
Speaker 7: Be nice.
Speaker 6: I could not agree more. Todasblog has been advocating for
Speaker 6: a greater transparency for quite a while. I don't think
Speaker 6: it's gonna happen. The justices have long been resistant to
Speaker 6: any cameras. They don't even allow photography, never minds live video. Now,
Speaker 6: there has been one tiny incremental step in favor of
Speaker 6: good transparency, which is that during the pandemic, when the
Speaker 6: Court moved to remote arguments, it started making live audio
Speaker 6: streams available of it arguments, and I think you know,
Speaker 6: it was actually like a real boon for education and
Speaker 6: transparency by the Supreme Court, and the courts decided to
Speaker 6: keep that in place even when they went back into
Speaker 6: the courtroom, which I was. I was happy about that.
Speaker 6: So everyone can listen to arguments live, at least in
Speaker 6: an audio fashion. I think it's going to be quite
Speaker 6: some time before we actually get get video in there.
Speaker 1: Yeah, yeah, well love the transparency. As you took a
Speaker 1: lot of political science classes, and you know, you know,
Speaker 1: in a poly science class and a government class, we
Speaker 1: learned there are three branches of government there's a legislative branch,
Speaker 1: there's the executive branch. Judge judy bran, excuse me, the
Speaker 1: judicial branch. I thought the judicial branch had some judy
Speaker 1: More and more it does.
Speaker 6: It's going to be next nominee if he wins re election.
Speaker 8: Yeah, it be known as a judge judy branch.
Speaker 9: She'd have to take a major pay cut to move to.
Speaker 10: I don't know what to do it.
Speaker 1: Very conversation judy making that money. The judicial branch, now
Speaker 1: we know what they do. They sit there and they
Speaker 1: try to make sure that the laws are interpreted properly.
Speaker 1: But it feels like the Supreme Court is attempting to
Speaker 1: make new laws. Is that what you're feeling right now
Speaker 1: as you've been in terms of what's going on with
Speaker 1: a lot of the precedent being reversed.
Speaker 8: I'll tell you Roy, when you go to law school,
Speaker 8: you learn that there's five extra branches of government that
Speaker 8: really make all the laws. And that's not something most
Speaker 8: people know about. But you also have you know, the judiciator,
Speaker 8: the execuary, all that kind of stuff that's a lot
Speaker 8: more real than the stuff you learn in you know,
Speaker 8: in elementary school.
Speaker 1: A public schools, thank you shout out, yeah.
Speaker 7: You're not gonna doot that.
Speaker 10: No.
Speaker 8: I mean, that's that's always kind of been the critique.
Speaker 8: I guess that you can't really interpret the law without
Speaker 8: changing it, you know, to a certain extent. The judiciary
Speaker 8: has always had that law making power just by virtue
Speaker 8: of being able to interpret the law and thereby changing
Speaker 8: who app to and who doesn't. And I it feels
Speaker 8: like the history of the Supreme Court has been one
Speaker 8: of which justices feel comfortable using that power and to
Speaker 8: what extent they do. Whether the court of that era
Speaker 8: tends to be one that is restrained in certain areas
Speaker 8: and it's more active in other areas. I do think
Speaker 8: you could argue, for example, the war in court was
Speaker 8: much more in the realm of active lawmaking with respective
Speaker 8: criminal justice over the sixties, and we are now in
Speaker 8: a different era where the Court is much more active
Speaker 8: with respect to issues that the conservative movement cares a
Speaker 8: lot more about gun rights, religious liberty rights, as you know,
Speaker 8: unbalanced to public rights opposed to those religious liberty rights.
Speaker 7: I'm very happy to to see.
Speaker 8: If David James agree with me, But it feels like
Speaker 8: that tension between judiciary that wants to that that cannot help,
Speaker 8: but create law just by interpreting law is one that
Speaker 8: always exists, and it's just a matter of like wish
Speaker 8: justice feel comfortable using the power in what area.
Speaker 10: I think that's right.
Speaker 9: Although, you know, one of the key things about being
Speaker 9: a judge, and one of the key constraints on being
Speaker 9: a judge, is that you are bound by precedent. So yeah,
Speaker 9: you have to take the cases that were decided before
Speaker 9: you and apply them to a new circumstance, and there's
Speaker 9: room for discretion in how they're applied to the new circumstance,
Speaker 9: but you are bound by those prior presents and you
Speaker 9: have to try to make sense of them in a
Speaker 9: consistent way unless you decide to overturn those prior presses.
Speaker 9: And when you overturn those prior presents, then you're not
Speaker 9: bound by anything. And that's what you have with the
Speaker 9: case like Dobbs, that's what you have with those religion cases.
Speaker 9: That's what you have I think with the gun cases
Speaker 9: and this term, the Court has taken a whole bunch
Speaker 9: of cases where the argument that's being made to them
Speaker 9: is reject prior precedent and interpret the Constitution the way
Speaker 9: we want you to interpret the Constitution the way it
Speaker 9: never has been interpreted before, but to obstruct the ability
Speaker 9: of other branches to extend rights and protection to disadvantage groups.
Speaker 9: So the war in court, you know, did create a
Speaker 9: lot of new law, but it was seeking to expand
Speaker 9: rights for people, to expand protection for the disadvantaged, for
Speaker 9: those who are charged in criminal cases, make sure they
Speaker 9: have a fair, fair process. And like what the arguments
Speaker 9: now are, the ego protection clause blocks state and private
Speaker 9: schools from using a firmative action to try to lift
Speaker 9: disadvantage groups up and to create integrated and diverse communities.
Speaker 9: They're arguing that the Indian Child Welfare Act, which is
Speaker 9: a law that Congress passed to try to keep tribal
Speaker 9: families together, it violates the ego protection Clause, and therefore
Speaker 9: Congress can't seek to protect Native American kids by singling
Speaker 9: them out.
Speaker 10: In a case called three zero.
Speaker 9: Three Creative, a website designer is arguing that she has
Speaker 9: the right under the First Amendment to open a business
Speaker 9: to the public but then deny her service to same
Speaker 9: sex couples because she objects to same sex wedding. So
Speaker 9: she's invoking the Constitution to deny the Colorado Legislature's rule
Speaker 9: that a business open to the public has to serve
Speaker 9: UH has.
Speaker 10: To serve everybody.
Speaker 9: So, you know, I think one of the key roles
Speaker 9: of a court is that they can protect people who
Speaker 9: can't get protected through the political process. This court, you know,
Speaker 9: this term, may turn that on its head and use
Speaker 9: the Constitution as a as a barrier to other branches
Speaker 9: protecting disadvantaged groups.
Speaker 1: Can we course correct this at all, Like, is there
Speaker 1: a way for the court to relegitimize itself or is
Speaker 1: this just the way it's going to be going forward
Speaker 1: when it comes to issues like president it's president now officially,
Speaker 1: we just basically making new rules at this point, right.
Speaker 6: Yeah, Well, look, I would say a couple of things.
Speaker 6: I think it is important to give the other side
Speaker 6: because the expansion and the restriction of rights really is
Speaker 6: often in the eye of the beholder. So it definitely
Speaker 6: is true that you can see a lot of the
Speaker 6: recent decisions as curtailling people's rights. But I think that
Speaker 6: people on the right would see many of the decisions
Speaker 6: as expanding rights in other ways. So the Second Amendment
Speaker 6: is part of the Constitution. If you believe in our
Speaker 6: or bust interpretation the Second Amendment, you would see this
Speaker 6: court as expanding the rights under the Second Amendment. Similarly,
Speaker 6: if you believe that religious liberty interests are important, you
Speaker 6: would see the Court's religion jurisprudens lately as expanding people's
Speaker 6: religious rights. And yes, you know those rights do you
Speaker 6: come up against other interests. I think it's maybe a
Speaker 6: little simplistic to just say, like, oh, the War On
Speaker 6: Court was all about expanding rights, and the current Court
Speaker 6: just wants to curtail people's rights, because I think that
Speaker 6: they would see themselves as expanding rights. But they're just
Speaker 6: different rights and there are different stakes. And similarly, with
Speaker 6: regard to precedents, you know, definite is true that the
Speaker 6: current Court is overturning a lot of president and quite
Speaker 6: aggressively and quickly. But again, the Supreme Court has always
Speaker 6: done that. Again, the War and Court overturned a lot
Speaker 6: of President Brown versus Board of Education, one of the
Speaker 6: most iconic decisions in Supreme Court history overturned precedent. And
Speaker 6: let's not pretend that you know, if you know Kamala Harris,
Speaker 6: you know is elected to two terms and you know appoints,
Speaker 6: you know, four new justices. When Congress passes the court,
Speaker 6: you know, a newly liberal Supreme Court will almost certainly
Speaker 6: overturn the Dobbs president and re ensrine a right to abortion,
Speaker 6: and so, like what's good for the goose is good
Speaker 6: for the gander. I think, you know, liberal justices do
Speaker 6: this too, and so I think it's just important to
Speaker 6: recognize that. Now you asked about sort of ways to
Speaker 6: create more accountability, and I think there are some things
Speaker 6: that Congress could do. They could certainly expand this size
Speaker 6: to the Supreme Court. There are proposals to enact term
Speaker 6: limits on the justices, which would ensure that each president
Speaker 6: gets to a point like sort of the same number
Speaker 6: of justices, and I I think actually the most interesting
Speaker 6: proposal is to do something called jurisdiction scripting, which sounds wonky,
Speaker 6: but it would basically be Congress just simply saying the
Speaker 6: Supreme Court just doesn't have the power to review laws
Speaker 6: in certain areas. So, for example, Congress could pass a
Speaker 6: new voting rights law and literally say the Supreme Court
Speaker 6: has no power to strike this law down. That is
Speaker 6: absolutely within the power of Congress to do. So there
Speaker 6: are things that you know, the political branches could do
Speaker 6: to check the Supreme Court, to reduce the power of
Speaker 6: the Supreme Court, or enact you know, ethical oversight. I
Speaker 6: don't see any of those proposals really getting off the ground.
Speaker 6: Biden hasn't spent a lot of political capital on these things,
Speaker 6: and with the exception of a few Democrats in Congress,
Speaker 6: I just don't see the political will to enact these
Speaker 6: sorts of court reforms.
Speaker 1: Okay, so let's stay right there in that pocket for
Speaker 1: a second. With regard to expanding the court versus term limits,
Speaker 1: should we do term limits? James and Juben, Should we
Speaker 1: expand Supreme Court? Or what are some other ways that
Speaker 1: we can return to judiciary that's more representative of what
Speaker 1: the people think instead of just doing what the hell
Speaker 1: they want to do or doing what the hell the
Speaker 1: political person who appointed them wants them to do.
Speaker 10: Well.
Speaker 8: I do think that if you have a judiciary that
Speaker 8: is more responsive to the public in the in the
Speaker 8: way of which they are appointed by presidents more regularly
Speaker 8: and not directly elected, which I think is probably too
Speaker 8: representative of public opinion for judiciary, I think that would
Speaker 8: go a long way towards at least allowing there to
Speaker 8: be a little less pressure on the system in other
Speaker 8: elections where you see Senate elections almost entirely now hinge
Speaker 8: on who will give the president the majority they need
Speaker 8: to elect Supreme Court or to appoint Supreme Court justices.
Speaker 8: You at least, you know, pull a little bit of
Speaker 8: the venom out of that area. And I think that's
Speaker 8: by itself a good reason to go to term limits,
Speaker 8: a guarantee at least the winning president gets, you know,
Speaker 8: two Supreme Court justices and then you don't have these
Speaker 8: situations where you where you have these like bizarre imbalances
Speaker 8: where some persons get to a point in lots, some
Speaker 8: persons don't appoint any and everyone is just sitting here
Speaker 8: kind of just looking at Ruth Bader Ginsburg being like, lady,
Speaker 8: do you want to do anything in the next year
Speaker 8: or so, maybe step down? Or basically how they hounded
Speaker 8: Briar off the court.
Speaker 1: It's not funny, but there were a lot of people
Speaker 1: during near the end of Trump's term where people were going,
Speaker 1: we need you to live until Biden gets into office.
Speaker 8: And that's the kind of political thinking that you would
Speaker 8: not necessarily want your Supreme Court justice to have to
Speaker 8: have to sit there and think in that element like
Speaker 8: you know, how you know, to have this political calculation
Speaker 8: of when should I retire or or you know, how
Speaker 8: long can I you know, should I just like keep
Speaker 8: pumping the vitamin so I can last past this particular
Speaker 8: president's term. So I think that's certainly would help reduce
Speaker 8: the rest of the political pressure on the system, or
Speaker 8: in the very least, would help a little bit more
Speaker 8: public acceptance of a court of the decisions if they
Speaker 8: know that well, you know, if we really hate this decision,
Speaker 8: we can we will have a regular chance to vote
Speaker 8: in justice who might you know, modify it or overturn it.
Speaker 8: It is it is striking what you were saying there
Speaker 8: about the logical decision, because I do feel like, again
Speaker 8: this goes to my sense that this court is just
Speaker 8: openly political.
Speaker 10: Now.
Speaker 8: Was reading just as Alito's concurrence in the gun rights
Speaker 8: decision that overturned New York's gun safety law, it read
Speaker 8: like the most Fox News poison Grandpa screed I have
Speaker 8: ever read in a Supreme Court decision, And it felt
Speaker 8: to me like this is the writing of a person
Speaker 8: who does not really who's not really trying to convince
Speaker 8: anybody he is mad that the dissent brought up a
Speaker 8: point that he disliked them bring up and wanted to
Speaker 8: just complain about. And if you are able to make
Speaker 8: unaccountable decisions democratically, you should The whole entirely of opinion
Speaker 8: is that you should have your reasoning made very clear.
Speaker 8: And if it is getting to the point now where
Speaker 8: the justices are able to either with shadow dockets or
Speaker 8: these kinds of opinions, just be like, you know, this
Speaker 8: is what like Tucker said, Then I think like you
Speaker 8: are really heading towards the situation where nobody is going
Speaker 8: to respect the court, regardless of their of you know,
Speaker 8: whether it's a conservative court or liberal court. And I
Speaker 8: think that's the real poison in terms of the court of.
Speaker 1: Legitimacy, David, How do we get them back to a
Speaker 1: place of legitimacy where they're supposed to, you know, honor
Speaker 1: the beliefs that the electorate, the people that they're supposed
Speaker 1: to be serving. How do you honor the people that
Speaker 1: you're serving and not just yourself and your own interest.
Speaker 1: How do we hold them accountable?
Speaker 9: One thing that history shows is that over time, the
Speaker 9: court has actually relatively rarely parted company with where the
Speaker 9: country is on the fundamental issues that are presented to
Speaker 9: the court. When it has, it has lost its legitimacy,
Speaker 9: it has come under attack, and there's been a course correction.
Speaker 10: So, you know, the first.
Speaker 9: Major time was in the early part of the twentieth century,
Speaker 9: the progressive era, the depression. You know, people were hurting
Speaker 9: and Congress and state legislatures responded by passing laws that
Speaker 9: protected workers, protected consumers from big business, and the Court
Speaker 9: kept striking those laws down as violating the rights of
Speaker 9: these corporations. And that's ultimately led FDR to propose packing
Speaker 9: the court. And he didn't actually pack the court, but
Speaker 9: the Court itself corrected and started letting all those laws
Speaker 9: protecting the rights of consumers and the rights of workers
Speaker 9: go through. And I think another time, arguably is the
Speaker 9: war in Court. The war in court to some degree
Speaker 9: got out ahead of where the country was, and for
Speaker 9: a long time thereafter there's been a sort of course correction,
Speaker 9: not a radical course correction, but a course correction.
Speaker 2: You know.
Speaker 9: I take James's point that you know one right, you know,
Speaker 9: the rights are in the eye of the beholder to
Speaker 9: some extent, but you know not when you're talking about abortion.
Speaker 9: You know, that is a right that fifty percent of
Speaker 9: this country enjoyed for fifty years, and the court just
Speaker 9: took it away.
Speaker 10: It no longer exists, you.
Speaker 9: Know, And I think, you know, to say, well, you know,
Speaker 9: on something like affirmative action, the court is going to
Speaker 9: take away the power of universities to try to do justice,
Speaker 9: to try to create integrated communities.
Speaker 10: To help the little guy. Right.
Speaker 9: So, yeah, you can protect the rights of the powerful
Speaker 9: against the little guy and say you're protecting rights, but
Speaker 9: that's not what we expect a court to do in
Speaker 9: a constitutional democracy. So when it doesn't do that, we
Speaker 9: have to condemn it. We have to criticize it. We
Speaker 9: have to you know, protest, you know, in the streets,
Speaker 9: we have to vote, like our rights depend on it.
Speaker 9: We have to look to alternative forums like state supreme
Speaker 9: courts and the like. But ultimately, I think the court
Speaker 9: will get the message if that happens, and the fact
Speaker 9: that it's approval rating is twenty five percent, they're already
Speaker 9: you know, they've gotten the message in the sense of
Speaker 9: their going out and trying to make speeches saying, oh no,
Speaker 9: we don't decide cases on political basis.
Speaker 10: We're you know, we're not politicians.
Speaker 9: But you know, they're not going to win their legitiacy
Speaker 9: back by making speeches. They're going to win their legitimacy
Speaker 9: back by acting like judges, following precedent and not deciding
Speaker 9: cases that really go against you know, our country's most
Speaker 9: fundamental values today.
Speaker 8: David, do you think that in that because of that,
Speaker 8: that it's better to leave this question of legitimate ublicity
Speaker 8: up to the individual justices, That it's better to trust
Speaker 8: them to kind of like understand when they've gone over
Speaker 8: their skis, or do you think there are any structural
Speaker 8: changes that might operate, might operate better and take that
Speaker 8: decision making out of the hands of their you know,
Speaker 8: their own like savviness as political operators.
Speaker 10: Yeah.
Speaker 9: The fact that everyone's talking about all these sort of
Speaker 9: you know, packing the court or term limits or jurisdictions,
Speaker 9: that in and of itself sends a message to the court, hey,
Speaker 9: when we're doing something wrong, because no one was talking
Speaker 9: about that for a long time. Now everyone's talking about it, right,
Speaker 9: So that in and of itself sends a message, you know,
Speaker 9: of those reforms, I am. I think the term limits
Speaker 9: one makes a lot more sense than packing the court
Speaker 9: or jurisdiction stripping. But and I don't know that we'll
Speaker 9: ever get there, but I do think we might get
Speaker 9: there if they continue on the line that they seem
Speaker 9: to be going on. You know, it used to be
Speaker 9: you made narrow, incremental arguments, because that's the way the
Speaker 9: law developed in incremental, narrow steps. Now you're seeing ads
Speaker 9: advocates come in and say, hey, throw it all out,
Speaker 9: and let's start over, and let's look back to you know,
Speaker 9: let's get be bound by what happened in seventeen eighty
Speaker 9: nine and ignore.
Speaker 10: The fact that two hundred years of history has come
Speaker 10: in between.
Speaker 9: And you know they could do that because they've shown
Speaker 9: in cases like the religion cases, the gun cases and
Speaker 9: the and abortion that they're willing to throw out, you know,
Speaker 9: to just impose new rules. And you know it's possible
Speaker 9: that they double down this term, and this is as
Speaker 9: big a term as last term, with you know, the
Speaker 9: affirmative action case, with the very very important voting rights
Speaker 9: case that we did with the Legal Defense Fund that
Speaker 9: was argued just a couple a week or so ago.
Speaker 9: It's possibly doubled down and they doubled down this term
Speaker 9: on equality and deny you know, the ability to try
Speaker 9: to address equality probably the biggest problem this country faces.
Speaker 9: And if so, I think there's going to be more
Speaker 9: and more criticism and there you know, at some point
Speaker 9: their approval ready will go below Congress.
Speaker 1: Oh well, this is great news and I appreciate you
Speaker 1: for bringing that to the podcast. Thank you very much
Speaker 1: for matter of fact, I just need a break right
Speaker 1: now because you've made me so frustrated. After the break,
Speaker 1: we're gonna bring it home and we're gonna see if
Speaker 1: the three of you can say anything nice about Scotus
Speaker 1: or give us anything optimistic to leave this podcast with. Okay,
Speaker 1: we've been hitting them for the first two breaks with
Speaker 1: gut punch. At the gut punch, I want I want
Speaker 1: all three of you to sit and think of something
Speaker 1: nice that what you're looking forward to with the Supreme Court.
Speaker 1: You have during these commercials for mattresses or whatever they're
Speaker 1: gonna play during this commercial you have that amount of
Speaker 1: time to think of nice things to say about the
Speaker 1: Supreme Court.
Speaker 7: Okay, I like the ropes.
Speaker 1: I don't think y'all are gonna do it. This is
Speaker 1: beyond the scenes. Whoope, right back, Oh my lord, beyond
Speaker 1: the scenes, we have been talking about the Supreme Court
Speaker 1: at the United States and all of the odd and
Speaker 1: controversial and contradictory decisions they've been making. The strip your
Speaker 1: lulls of before to break. David was so kind to
Speaker 1: remind us that now they will be trying to attack equality.
Speaker 1: Thank you so much, David for that last little bit
Speaker 1: of good news before we all had to take a
Speaker 1: screen break. What are some other things that are going
Speaker 1: to be in the scotis this term that also live
Speaker 1: under that umbrella of attacking equality? I know at the
Speaker 1: state level, there's been a lot of gerrymandering issues. There's
Speaker 1: also been a lot of you know, equality cases in
Speaker 1: terms of denying same sex couples services and stuff like that.
Speaker 1: What else is in motion right now in this term?
Speaker 9: So I already mentioned the affirmative action, the public accommodations laws,
Speaker 9: first Amendment exemption from public commodations laws, and striking down
Speaker 9: the Indian.
Speaker 10: Child Welfare Act.
Speaker 9: But there are two big cases involving essentially jerrymandering. One
Speaker 9: involving racial gerrymandering by your home state, I guess of Alabama.
Speaker 9: Where are twenty seven percent of the population is African American,
Speaker 9: but only one of seven congressional districts do African Americans
Speaker 9: having a meaningful chance to elect a candidate of their
Speaker 9: choice and coincidence, and we challenge that under.
Speaker 10: The Voting Rights Act.
Speaker 9: The ACLU and the Legal Defense Fund challenged that, and
Speaker 9: we won unanimously before a three judge panel, including a
Speaker 9: Trump judge on that on that court because they applied
Speaker 9: existing law under the Voting Rights Act, which says, if you,
Speaker 9: you know, create the districts in a way that denies
Speaker 9: a minority group a meaningful equal opportunity to elect candidates
Speaker 9: of their.
Speaker 10: Choice, you have violated the Voting Rights Act.
Speaker 9: Whether you do so intentionally, whether you can prove intent
Speaker 9: or not, doesn't matter. Alabama appealed and they're arguing, essentially, no,
Speaker 9: you've got to prove intent, which Congress was very clear
Speaker 9: that that is not what is required. And then there's
Speaker 9: another case out of North Carolina where the Republican majority
Speaker 9: in North Carolina drew a congressional map that is skewed,
Speaker 9: skewed heavily towards favoring Republicans for Democrats, far in excess
Speaker 9: of their actual percentage of of voters, and the North
Speaker 9: Carolina Supreme Court said that's unconstitutioned onto the state constitution
Speaker 9: because you can't partisan gerrymander. And the North Carolina Republicans
Speaker 9: have taken that to the Supreme Court and said, there's
Speaker 9: this thing called the independent state legislature theory. It's a
Speaker 9: theory because it's not a rule, it's not a doctrine.
Speaker 9: It's never been recognized before.
Speaker 6: But they've been apothosis a hyponsin exactly because it hasn't
Speaker 6: gone to a theory yet.
Speaker 7: But they hope wish will think, wish thought, But they've.
Speaker 9: Been voked it to basically say that, you know, because
Speaker 9: the elections Clause gives the legislature the power to create
Speaker 9: the rules for congressional elections, the state legislatures are above
Speaker 9: the law. They cannot be constrained even by their own
Speaker 9: state constitutions, which after all, are the things that create
Speaker 9: them and charter them. And they can't be strained by
Speaker 9: state courts, even where they're being constrained by state courts.
Speaker 9: To the end of equality, to the end of you know,
Speaker 9: equal representation for all. The big theme I think is
Speaker 9: real attacks on efforts of of of many branches of
Speaker 9: our government and institutions in our society to to try
Speaker 9: to extend equal equality to those who have been denied it.
Speaker 9: And if the Court stands the way of that, you know,
Speaker 9: I think approval ratings will plummet still further.
Speaker 1: Do they care about their approval ratings though they?
Speaker 10: I think they do.
Speaker 9: I know, you know, you said say something nice about
Speaker 9: the Court, so you know, I'll say this. The Court
Speaker 9: doesn't have an army. That's a nice thing. That is
Speaker 9: a good thing, right. They cannot call out the troops.
Speaker 9: They cannot.
Speaker 1: They got a bunch of fences.
Speaker 7: Though they got some law clerks too, don't forget about that.
Speaker 10: Yeah, they're very very those clerks. But you know that,
Speaker 10: so they can't.
Speaker 9: You know, they can't, at the end of the day,
Speaker 9: compel anyone to do anything unless we accept it. And
Speaker 9: so you know, and they know that, they know that that,
Speaker 9: and that is an important, important constraint on their power.
Speaker 9: What this court is has to be constrained by is legitimacy.
Speaker 9: If they give up on legitimacy, if they don't care
Speaker 9: about legitimacy, you know, then they're unconstrained altogether. And I
Speaker 9: don't think we've seen that yet.
Speaker 1: James, what are you noticing over at scotus blog about
Speaker 1: how Americans are learning and interacting with all of the
Speaker 1: news that has come out of the Supreme Court and
Speaker 1: that is about to come out of the Supreme Court?
Speaker 1: Are they more engaged? Are they more active? Are they
Speaker 1: more connected to Wait a minute, what the hell is
Speaker 1: going on up there in DC?
Speaker 10: Yeah?
Speaker 6: Absolutely, we have been seeing, you know, a ton of
Speaker 6: engagement with the Supreme Court. I think that in particular,
Speaker 6: you know, the Supreme Court has always had really significant
Speaker 6: consequences on policy and an American life, but a lot
Speaker 6: of the decisions are often like wrapped in complex jargon
Speaker 6: and are difficult for ordinary people to understand. But I
Speaker 6: think the recent decisions are like everyone understands what the
Speaker 6: concrete stakes are.
Speaker 10: Right.
Speaker 6: It's you don't have to be a lawyer to understand
Speaker 6: that the constitutional rights to abortion doesn't exist anymore. You
Speaker 6: don't have to be a lawyer to understand that people
Speaker 6: now have more expansive rights to carry concealed weapons in public. So,
Speaker 6: you know, the stakes are so clear, and people are
Speaker 6: you know, you know, obviously rightfully concerned about these stakes.
Speaker 6: And see, we're seeing a lot of engagement, not just
Speaker 6: you know, on scotusplag itself, but also you know, what
Speaker 6: we've really tried to do is, you know, explain what
Speaker 6: the Court is doing to new audiences in new formats. So,
Speaker 6: for example, like our TikTok account has like really taken off,
Speaker 6: like sort of much to my surprise. When my friend
Speaker 6: and colleague Katie Barlow, also a former student of David's
Speaker 6: by the way, when she watched that TikTok account a
Speaker 6: year or two ago, I was like kind of skeptical.
Speaker 6: I was like, really, it is the Supreme Court, you know,
Speaker 6: a doctrine on on TikTok, And actually it's become really popular.
Speaker 6: And we've seen a lot of young people, you know,
Speaker 6: becoming educated on the Court in a way that I
Speaker 6: don't think they otherwise.
Speaker 5: What have three things happened at the Supreme Court today?
Speaker 5: Orders two oral arguments, and DOJ filed its opposition to
Speaker 5: Trump in the mar A Lago documents fight. Here is
Speaker 5: a quick explainer of all of the above. Grab your
Speaker 5: negroni spagliato with prosecco in it, and let's go.
Speaker 6: I think there really is an appetite for you know,
Speaker 6: understand for civil's education in general and specifically trying to
Speaker 6: understand what the Supreme Court is doing.
Speaker 1: So what you're saying is that we've come a long
Speaker 1: way from I'm just a bill. I'm just a bill
Speaker 1: sitting on Capitol Hill. You know, I respect the classics.
Speaker 8: David, you can also be proud of all your students
Speaker 8: who become law clerks. Or you can be proud the
Speaker 8: students who come to conquer the worlds of TikTok and
Speaker 8: basic late night cable variety shows.
Speaker 7: You know, there's a lot of pride to be had.
Speaker 10: You got to go where the power is right.
Speaker 1: Yes, is the Bill, Bill Parcells, Bill Belichick coaching tree
Speaker 1: just greatness? So as we as we bring it home.
Speaker 1: I have two questions, one about optimism, one about wellness. First,
Speaker 1: optimism with the courts. Are there any specific cases or
Speaker 1: anything that makes you particularly hopeful about the future of
Speaker 1: the Supreme Court, you know? And also what are some
Speaker 1: of the changes and what are some of the things
Speaker 1: that people could be doing within our judicial system to
Speaker 1: make it feel a little more judicious? Can you say
Speaker 1: something nice and if not, how do you make it nice?
Speaker 1: I'll start with your.
Speaker 8: Shuman well you know, Roy, I'm hearing a lot of
Speaker 8: bitching from you about the justices and how you.
Speaker 7: Can't they got to do something in Congress.
Speaker 8: But why don't you quick complaining and be a Supreme
Speaker 8: Court justice yourself?
Speaker 3: Huh?
Speaker 7: Maybe maybe maybe get in the grind a little bit
Speaker 7: and do your own work.
Speaker 1: All right, I'll do that. I'll get on legal Zoom
Speaker 1: and start reading some documents. Yeah, get myself together.
Speaker 7: It'll snowballs from there, man.
Speaker 1: David. Outside of helping youve and write jokes on a
Speaker 1: daily show, what can people do, if anything, to change
Speaker 1: the lack of accountability not only within the Court, but
Speaker 1: you know, what can we do to help influence Congress
Speaker 1: as well, to try and make the court something that
Speaker 1: are a little bit nicer.
Speaker 9: The answer, you know, will probably not be a surprise,
Speaker 9: but it's vote right. It is vote vote like your
Speaker 9: rights depend on it. That is what will send the
Speaker 9: strongest message to the court. The Court is not the
Speaker 9: only branch that can protect people's rights. The legislatures can.
Speaker 9: Governors can, mayors can you know, even prosecutors can so
Speaker 9: and all of them people are up for election. So,
Speaker 9: you know, the thing that gives me hope is that,
Speaker 9: as I referred earlier, the history shows that the Court,
Speaker 9: when it gets out of sync with the people, it's
Speaker 9: legitimacy crumbles, and there is a course correction. That course
Speaker 9: correction will happen, I believe if and only if we
Speaker 9: who are pissed off, we who think the court's doing
Speaker 9: the wrong thing, we who care about advancing civil liberties
Speaker 9: and civil rights for the for the most disadvantage in
Speaker 9: this country, stand up and speak out. And what gives
Speaker 9: me hope is that we are doing that. You know,
Speaker 9: from the from the Women's March, when when when Trump
Speaker 9: was inaugurated, to the Black Lives Matter of protests after
Speaker 9: George Floyd was killed, to the March for Our Lives
Speaker 9: on gun control, people are engaged. Young people are engaged
Speaker 9: and fighting for the rights that they believe in. And ultimately,
Speaker 9: when you do that in a democracy, and you do
Speaker 9: it in a sustained way, working with civil society organizations,
Speaker 9: that's how change happens. So, you know, the court is
Speaker 9: deeply depressing, but the political engagement of so many people
Speaker 9: around civil rights and civil liberties today is deeply hopeful.
Speaker 1: James, We'll go around the horn, starting with you, to
Speaker 1: end this now at the Daily Show, we have cereal.
Speaker 1: Let me explain for a second, we have afforded to us,
Speaker 1: Thank you to Viacom and Paramount, one of the best
Speaker 1: serial selections in the history of late night. I don't
Speaker 1: know what they're working with at Seth Myers. I don't
Speaker 1: know what they're working with over at Courton, but we
Speaker 1: got at least twenty different boxes of cereal. And when
Speaker 1: it's a long day, I have myself a nice three
Speaker 1: PM bowl of cereal and that's my cigarette. You know,
Speaker 1: when it comes to just being stressed, I just sit
Speaker 1: in our little cafe we have and that's how I relax. James,
Speaker 1: how do you, person who runs scotus blog full of
Speaker 1: a lot of bad and stressful news, how do you
Speaker 1: deal with stress? How do you what do you do
Speaker 1: to relax on a regular because I think that's an
Speaker 1: important thing for us to leave our listeners with, because
Speaker 1: we're all stressed about this. What is your routine? What
Speaker 1: is your apple jacks? What is your bowl of apple jacks?
Speaker 10: James?
Speaker 6: You know what I wish I had some apologize. I
Speaker 6: went down to the pantry this morning to have my
Speaker 6: bowl of cereal, and all that was left was like
Speaker 6: this super healthy, protein rich stuff colla sing. But I'll
Speaker 6: tell you what I normally do, which is, you know,
Speaker 6: I really like to sort of just step away from
Speaker 6: the Supreme Court, and I go to the art museums
Speaker 6: here in DC, the National Gallery, the Phillips Collection. I
Speaker 6: really love looking at, like, you know, twentieth century abstract art,
Speaker 6: and it really is a chance to just like get
Speaker 6: away completely from what's going on in the Supreme Court,
Speaker 6: or so I thought until just a couple of days
Speaker 6: ago when the Supreme Court heard this important copyright case
Speaker 6: about Andy Warhol. And so even when I'm looking at
Speaker 6: modern art, I can't even escape Supreme Court jurisprudence. So
Speaker 6: maybe none of us can escape.
Speaker 1: But I don't know, jus, what's your What do you
Speaker 1: do to relax? Because I know you have a child
Speaker 1: there at the house, so you know, I'm sure you
Speaker 1: have to leave the house.
Speaker 7: That's what I'll tell you.
Speaker 8: That's how I that's how I get away from from
Speaker 8: all this worry about the future.
Speaker 10: Man.
Speaker 8: I just look at my kids in the eye, and
Speaker 8: I just look at them and their faces, and they
Speaker 8: sneeze in my face and give me a cold and
Speaker 8: then I don't have to worry about Supreme Court anymore
Speaker 8: because I I'm trying to get over a cold.
Speaker 7: And that's I think. What that's my way.
Speaker 1: That's my way, all right, David lay it on us.
Speaker 10: Well, you know the answer. I watched the Daily Show.
Speaker 7: That's the correct answer. This was this is a test,
Speaker 7: This was a test.
Speaker 1: Well, look, this has been a great conversation and I
Speaker 1: can't think the three of you for coming on and
Speaker 1: going beyond the scenes with us today.
Speaker 7: Thank you, Thank you, guys, thank you so much.
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