The fallout from last week’s doozy of a debate continues, with voters, party leaders and donors all working to figure out if Joe Biden is still their guy. This, as a devastating Supreme Court term ends after several extraordinary rulings that will reverberate for years to come. Senator Claire McCaskill and former White House Communications Director Jennifer Palmieri wade through all the feelings, and what Biden needs to do to reassure voters and the Democratic party that he is equipped to stay in the race. Then, Slate senior editor Dahlia Lithwick joins to connect the dots on why the Supreme Court decisions on immunity, Chevron and EMTALA lay bare the adage that elections have consequences, and the makeup of the Court is chief among them. And lastly, Claire and Jen game out the logistics of how the party rules would actually work if President Biden did exit the race.
Also: a note about the post-debate CNN poll mentioned in this episode: both Claire and Jen were right. In this data set taken after the debate, Kamala Harris was running two points behind Donald Trump (45%-47%), while Joe Biden was running six points behind Donald Trump (43%-49%). Both of these are within the margin of error.
Note: This is a rough transcript. Please excuse any typos.
Jennifer Palmieri: Hello, welcome to “How to Win 2024.” We are taping this, it’s Wednesday, July 3rd. I’m Jennifer Palmieri and I’m here with my co-host Claire McCaskill. Oh my God, Claire.
Claire McCaskill: Yeah, what a week. Listen, I want to remind everybody what the name of this podcast is. It’s called How to Win 2024.
Jennifer Palmieri: Right.
Claire McCaskill: And, you know, if you’re coming here to listen to people just talk about how important it is for Joe Biden to remain the candidate and win, you need to think for a minute because what we’ve got to talk about is how important it is for Donald Trump to lose.
Jennifer Palmieri: Right.
Claire McCaskill: And we’ve got to be honest about where we are because we’re not the Republican Party.
Jennifer Palmieri: Yeah, we’re not Lemmings.
Claire McCaskill: And by the way, I’ll just say to all you people out there that go online and say horribly mean things to people who disagree with you, don’t think it doesn’t hurt. It hurts a little. I mean, when I read people saying, I’m a Judas and how dare I, and they’ll never listen to me again. It’s no fun. I mean, obviously I was a politician forever and that’s because I wanted people to like me. So, you know, it’s —
Jennifer Palmieri: This wasn’t the sole goal, Claire.
Claire McCaskill: But you know what I mean.
Jennifer Palmieri: Yeah.
Claire McCaskill: If you’ve got that kind of personality and you put yourself out there for public acceptance or rejection, part of that is a desire to be liked. But I think it’s really important to realize that I love this man.
Jennifer Palmieri: Yeah.
Claire McCaskill: He’s my friend. I served with him. He was really good to me and I care about him. But I care about my country slightly more —
Jennifer Palmieri: Yeah.
Claire McCaskill: — and the threat we face is so real and so prevalent. I think it’s really important we’re honest about where we are and what might happen. I’ve never said he should step down. I said, we need to take a hard look at it over the next few weeks and make sure that he is the strongest candidate we can field. And I say that because Donald Trump is maybe the biggest danger our country has faced certainly in my lifetime. I believe that.
Jennifer Palmieri: Yeah.
Claire McCaskill: I believe right now, especially with the immunity decision, —
Jennifer Palmieri: Of course.
Claire McCaskill: — which we’re going to talk about later, he is the biggest danger our country has faced. So be patient with people who are looking at this, and I’m not just asking you to be patient with me. I’m asking you to be patient with everyone who is asking hard questions right now because that’s what we should be doing as a party and as a country. Of course, Trump should drop out. Of course, he’s evil and malevolent. Of course, he’s terrible.
But the Republican Party is propping him up and I hope that we are not that and that’s really why we are where we are. So we’re going to talk about the immunity decision today. We’re going to talk about the election and stay with us here because really what we want to do is we want to win in 2024, which means beating Donald Trump, period.
Jennifer Palmieri: And the other thing about this is ask the hard questions, but I also caution patience because —
Claire McCaskill: Right.
Jennifer Palmieri: — it’s going to take a long time to play this out. And friends of mine who are like, oh my God, it’s Wednesday. He needs to drop out. You all, you have no idea what you’re getting ready to unleash if he does drop out. And the notion to not think that they would not be prepared for it. And if there is a successor to set that person up for success is a huge, huge deal. So let’s consider it all calmly and not to panic and not to rush. So, we will do that.
And we will also have, as Claire said, we’re going to look into the court cases. Dahlia Lithwick will join us in a bit to help unpack some of the most significant rulings from that session. And before we wrap, Claire and I are going to take a beat to review what the rules are that are in place. It’s kind of wild to me that there has not been more coverage of how the nominating process actually works and if the president were to step aside, what that process is going to be like.
So the scenario of if Biden does lose the race and how would the DNC look to nominate a different candidate. We’ll peel away some of those onion layers on how it might work. But first, as always, let’s talk about strategy. Okay, where should we start? Should we just go right into what he needs to do to survive at this point?
Claire McCaskill: Yeah, I think we need to talk about repairing the damage.
Jennifer Palmieri: Right.
Claire McCaskill: I don’t think anybody can be honest and say there wasn’t serious, ongoing and significant damage to Joe Biden’s chances of winning as a result of the debate last Thursday. So how does he fix that? Let’s talk about that.
Jennifer Palmieri: Yeah. Let me just continue to pile on with the problems, though. I think the campaign did a good job last week in sort of staunching the bleeding on Friday, right? When we recorded last week’s podcast, it was Friday morning. Friday afternoon, he had a good event in North Carolina, which by the way, like, it was fine. You know, he wasn’t awesome. He was still on a teleprompter, but it was a strong message and the crowd reacted to him positively. That was the most important thing about that.
By the way, everything that the campaign is dealing with and everyone’s trashing them super hard. I mean, I think in some ways their pushback is too aggressive and it’s alienating some Democrats they don’t need to do, but it’s also they’re in a very difficult position. So he did fine in that speech and the crowd had his back and that was really important. And so I felt like the campaign sort of bought the president some time. They raised a bunch of money online, you know. That number was 33 million. It’s gone even higher. That’s good.
Polling didn’t collapse. I know we’re recording this at 11:10 a.m. I know that “New York Times” is getting ready to drop a poll that everyone tells me is terrible, okay. So, that’s coming. But now it’s up to the president, right? It’s like you’ve done all the like machinations and tactics that campaigns do to be like, no, look, really, everything’s fine. And it may be.
And so he’s doing this ABC News interview on Friday. That used to be a really strong interview. He’s going to Wisconsin and Pennsylvania. He needs to be out. He needs to be out with people. We need to see on a repeated basis and the problem is the longer they delay him doing things like this, the higher the bar for his performance gets and the higher that the stakes are.
And what I don’t love about the fact that it’s going to be from Thursday night to eight days later, Friday, before he does an interview, he’s taking on so much water right now. Like imagine he has an awesome interview on Friday and everybody’s like, oh, maybe he is okay. And look at all the damage that’s been done to him in the meantime, you know? So I think that’s all he can do, right? What else do you think he needs to do?
Claire McCaskill: Listen, I think he’s got to quit using teleprompters at fundraisers.
Jennifer Palmieri: He uses teleprompters at fundraisers, I know.
Claire McCaskill: And by the way, just so everybody knows, that’s unheard of.
Jennifer Palmieri: I was shocked when I heard that because —
Claire McCaskill: Unheard of.
Jennifer Palmieri: — you got to be able to do five minutes in front of donors. Also, donors are super offended when you’re using a teleprompter.
Claire McCaskill: And it’s spreading like wildfire.
Jennifer Palmieri: Yeah.
Claire McCaskill: I mean, it goes out everywhere.
Jennifer Palmieri: That is why that was the second wave of the freak-out over the weekend.
Claire McCaskill: Correct.
Jennifer Palmieri: Was when people realized that he was on teleprompters at the fundraiser.
Claire McCaskill: Yeah. So, he’s got to quit using teleprompters in places like that. That’s a first step. Second step is obviously a good interview with George Stephanopoulos.
Jennifer Palmieri: Right.
Claire McCaskill: Third step is taking questions.
Jennifer Palmieri: Yeah.
Claire McCaskill: And this has never been his strong suit. He’s taken less questions than most presidents. He has been unavailable to the press more so —
Jennifer Palmieri: Yeah.
Claire McCaskill: — than most presidents in my lifetime. And here’s the thing about that, that I hate.
Jennifer Palmieri: Yeah.
Claire McCaskill: The pressure on this man —
Jennifer Palmieri: I know.
Claire McCaskill: — is unbelievable.
Jennifer Palmieri: I know.
Claire McCaskill: For them, for this situation, to put this kind of pressure on him because his performance now has to be so much better than it was before the debate.
Jennifer Palmieri: So much better.
Claire McCaskill: I mean, I’m not talking about what it was before the debate. I’m talking about —
Jennifer Palmieri: Yeah.
Claire McCaskill: — better than it was before the debate.
Jennifer Palmieri: Yeah.
Claire McCaskill: And still there will be lingering issues. And by the way, what I predicted last week is true. You’ve noticed —
Jennifer Palmieri: Yeah.
Claire McCaskill: — that the campaign on the other side has not been banging him like you would expect.
Jennifer Palmieri: Nope, they are not.
Claire McCaskill: They are wanting him to hold on, just as I predicted. You know, the other thing I want to point out here, if I were in the room —
Jennifer Palmieri: Yeah.
Claire McCaskill: — I think it’s time for the staff to do a gut check. This is a staff that typically is not leaked. It is leaking like a sieve now, I can just say from personal experience.
Jennifer Palmieri: Yeah, or you know what I think it’s doing? I think the campaign and the White House are talking to a lot of friends and advisers and those are the people who are leaking. That’s what I actually think is happening.
Claire McCaskill: Yeah. Well, that’s fine.
Jennifer Palmieri: Frankly, they’re talking to people like me. I’m not leaking, but like, I’ve had more conversations with (inaudible) inside the White House and the campaign in the last week than I have in four years.
Claire McCaskill: Well, I’ve had a lot of conversations with United States senators.
Jennifer Palmieri: Mm-hmm.
Claire McCaskill: And I’ll just tell you that they want to decry bedwetting. Well, it’s freaking Niagara Falls in the White House. You know?
Jennifer Palmieri: Yeah.
Claire McCaskill: I mean, it is really beyond hand-wringing. I mean, I think they’ve wrung their hands off and that is not helpful. And the other thing is, because Joe Biden, I think, has been shaken by this, which anybody would.
Jennifer Palmieri: That’s the thing.
Claire McCaskill: It is so painful.
Jennifer Palmieri: Yeah.
Claire McCaskill: He’s been shaken by this. So how are they fixing that? They’re putting him close to someone who makes him feel better. And who makes him feel better? Hunter Biden. And if I were in the room, I would gently —
Jennifer Palmieri: Yeah.
Claire McCaskill: — but firmly say the visual —
Jennifer Palmieri: Of Hunter (inaudible).
Claire McCaskill: — of Hunter Biden being in meetings in the White House is not what we’re looking for right now. Listen —
Jennifer Palmieri: It does not. It is not. It’s like —
Claire McCaskill: It’s terribly unfair.
Jennifer Palmieri: It’s unnerved people like me. It unnerves people like me.
Claire McCaskill: Yeah. And by the way, it’s terribly unfair to Hunter Biden.
Jennifer Palmieri: Yeah.
Claire McCaskill: He’s in recovery. He’s a smart man. He made horrible decisions in the throes of addiction. I am sure he is clear-eyed and sober now —
Jennifer Palmieri: Mm-hmm.
Claire McCaskill: — and making good recommendations to his father in context of their loving relationship.
Jennifer Palmieri: Yeah.
Claire McCaskill: Maybe not in context of the greater political threat Donald Trump poses, but in context of loving and supporting his father, like his father has loved and supported him. That’s all fine and good. But the appearance of Hunter Biden being in the White House so soon after all of the public airing of the sordid evidence that convicted him is just not smart. And so if I were in the room, I would say, listen, Mr. President, we get it. Your family wants Hunter nearby because it helps you emotionally, but it hurts you at a time you can’t afford that hurt.
Jennifer Palmieri: Yeah.
Claire McCaskill: And I don’t get how that happened. But if I were in the room, I would definitely say that as hard as it might be to say it.
Jennifer Palmieri: We have some breaking news. So, in the “New York Times,” Biden told ally that he’s weighing whether to continue in the race. President Biden has told a key ally that he knows he may not be able to salvage his candidacy if he cannot convince the public in the coming days that he is up for the job after a disastrous debate performance last week.
The president, who the ally emphasized is still deeply in the fight for reelection, understands that his next few appearances heading into the holiday weekend must go well. We will wrap with a quick synopsis of what he needs to do. Nail the ABC interview, but that’s not going to be enough because people will think, is that the one off or was the debate the one off? So it’s got to be 60 minutes, ABC press conference in the East Room.
And the hard thing is that this is an 81-year-old man who understandably is not as sharp as he once was, doesn’t speak as well as he once did. But now he’s got to be better than he has been in the last few years of his presidency. And with that fun note, we’re going to take a break.
And when we come back, we have to talk about the immunity case. And so to get a closer look at this and some of the more consequential decisions from the Supreme Court, Dahlia Lithwick joins me and Claire after the break. She’ll give some context to some important rulings and what they mean for November. Back with Dahlia in a moment.
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Jennifer Palmieri: Welcome back. The impact of the momentous Supreme Court decision on presidential immunity continues to echo around the country. In addition, there were a lot of other significant rulings this term that affect our health, our safety, our government functions and our democracy.
Claire McCaskill: So you know, if I want to be like brutal about this, this was a devastating court term for the values that we hold dear. And as a lawyer, reading the immunity decision, it made me sick to my stomach. So we’ve asked Dahlia Lithwick to join us to help break down what these decisions mean, all of them. The hot, steaming mess they are. She is a “Slate” senior editor, legal correspondent and host of the Amicus podcast. She’s also an NBC News and MSNBC law and politics analyst. Welcome Dahlia. Thank you for joining us on this dark day.
Dahlia Lithwick: Thank you for having me.
Claire McCaskill: Okay, let’s get right into it. Let’s start. You have a piece up this morning which says, “Don’t Worry, Ladies, Daddy Chief Justice Knows Best.” I noticed that patronizing phrase in his opinion to the three women who I think courageously and appropriately dissented with the kind of language that was necessary under the circumstances. You might talk about the dissent and the language and why it’s a little different than we typically see in dissents.
And I’d be interested to see, did this really line up in many ways as the men against the women, women understanding that checking power maybe is more important than making sure everyone is not chilled, which I’m seeing no evidence of that, in the actions they take as a president.
Jennifer Palmieri: That’s fascinating.
Dahlia Lithwick: It’s so interesting. It didn’t even occur to me until you said that, that what they most want, they being the majority in the immunity case, is a muscular president, right? A bold president, someone who can act swiftly and it is really gendered. Like that’s the fear, right? God forbid there be a check on all that bold, idded (ph) masculinity. And so it’s interesting that that’s the thing that they see as the catastrophe and you’re so right to what the dissenting justices see as the catastrophe is unchecked, muscular, bold, aggressive power.
And right then and there, it’s so split. And I would just note, by the way, the piece starts because we saw this in Justice Alito, you may remember all the way back to last week in the EMTALA decision, the other abortion decision, where Justice Alito accuses all three women and Justice Barrett of finding the case too, quote, “emotional to go forward.” Like he’s like, you chicken.
Claire McCaskill: Those assholes. I mean, what assholes?
Dahlia Lithwick: And I was just like, wait, doesn’t Martha-Ann Alito like just tapped him on the shoulder and say, don’t call women emotional? But yes, I think your larger point is, and this is so important. Once you get a sort of a 6-3 supermajority with all of the people on the liberal side, women, and once you get Amy Coney Barrett, who peels off time and time again this term to vote with the women, which she did in part in the immunity case, she certainly did in the abortion case, it starts to look like boys versus girls.
And then the question is sort of both what are the stakes? Why are the majority losing Barrett, but also tone? Like you say, why would you talk to them like they’re dumb, hysterical witches? And I think the only thing I would just say is on reflection, and if I had 10 more minutes to write the piece, I would have added this thought. This is an insane opinion, if only because Justice Sotomayor and Justice Jackson in dissent, and as you say, Claire, the tone of the dissent is like nothing I’ve ever read in judicial writing. It is on fire and it’s also performed on the bench.
When this gets handed down, Justice Sotomayor sitting on the bench was rolling her eyes, adding in interpolation, trying to make eye contact, doing everything you can in that limited space to say the world’s on fire. And the thing that is so fascinating to me is that what Sotomayor is doing is saying, I saw what I saw on Jan 6 and I read Project 2025, all 900 pages of it. I know what has happened and I know what is coming.
And for you, the chief justice, to write this utterly abstracted separation of powers, theoretical, you know, turn originalism on its head, turn humility on its head, confer all these imperial powers on the president without connecting those two stories of the world we actually live in is insane. That’s what that dissent does.
And I think that her point feels to me gendered in so far as we saw this with the Dobbs overturn. We saw this with the mifepristone case. It seems like every time women say, hey, they’re coming for IVF, they’re coming for contraception, they’re coming for abortion nationally and not state by state, we’re told that we’re hysterical and to sit down.
Jennifer Palmieri: Yeah. I mean, it’s for a whole other podcast, but none of this, the fact that we end up with very old white men at the top of the ticket, the fact that we’re having these battles over women’s fundamental rights, it’s not by accident, right? This is like for those who can’t see Dahlia, is very vigorously shaking her head. You know, it’s hard to process in the moment, but these are like big existential changes that America is wrestling with and we like can’t let go of those, you know, the older white guys at the top of the ticket.
And then there’s the, you know, the fight on the other side to hold on to power. But explain, okay, with the immunity case in my layperson’s term, because I’m the one who’s not the lawyer on here, it seems like there’s two sort of pieces to that. One that’s specific to the Jan 6 case, but then also there’s the much larger, which really, I mean, I thought the stakes of the election couldn’t get ramped up anymore.
And I was just, I found this nausea invoking, breathtaking to read Sotomayor’s dissent. Direct SEAL Team 6 to kill your political opponent? Immune. So can you walk us through both pieces of it, how it impacts the Jan 6 case, but then also the bigger implications?
Claire McCaskill: Yeah. And if you would, Dahlia, as you do that, I think it might be easiest for people to consume this if they understand what the court did as it related to official versus unofficial acts and the theory that they’re positing without any concrete examples as to what the differences are and the way they built the wall, which is where Amy Coney Barrett peeled off, the way they built the law evidentiary wise between what a president does in an official capacity, whether any of that can be used as evidence of crimes he might commit in an unofficial capacity.
Dahlia Lithwick: Sure. And maybe the way to address the first part of the question is there’s almost no dealing with Jan 6 in this case, at least in the majority opinion, as authored by the chief justice. You get this very bloodless recitation of, you know, bad things happen bygones. At oral argument, the justices, Neil Gorsuch, Justice Kavanaugh, were very clear they were writing an opinion for the ages.
So one of the things they do is not deal with Jan 6. It falls to Justice Sotomayor to really talk about that. And by the way, we saw that in the Fischer case last week. They just don’t want to talk about what happened across the street from the Supreme Court. So that’s how they dispose of that. And it does have sort of knock on effects on the January 6 cases. But this is really, as you say, a separation of powers case.
This is a case in which for the first time in history, former President Trump says, I am entitled to almost blanket immunity from criminal prosecution. And the court says, yes, they create some superstructure for how to think of that. As Claire says, they carve out the difference between official acts and unofficial acts. There’s a whole kind of ponderous section on what are core functions of the president as opposed to the outer perimeter functions of the president.
They’ve essentially created a roadmap where as long as the president can plausibly say that any action he took is an official action, he gets to do it. He’s immune from prosecution. And that’s where you get SEAL Team 6. And that’s where you get you can take a bribe in exchange for a pardon. That’s where you get things like anything you say to your attorney general, anything you say, including I want you to go ahead and start a war crimes tribunal against Liz Cheney. That’s all immunized, right?
So sit with just that for a second. And to answer your question, Claire, I think that that’s exactly right that the court sort of makes this very artificial distinction between what is an official act and what is an unofficial act. It’s incredibly murky. I read this and an awful lot of criminal lawyers read this as if you can plausibly claim that anything is an official act, including firing your attorney general and bringing on Jeff Clark and having him try to set aside election results or tell Mike Pence, I am pressuring you now to certify fake electorate. That’s all official acts.
So you’re right that there’s a carve out and there is a huge evidentiary question about because it’s clear from the majority opinion you can’t even use as evidence official acts when you’re going after unofficial acts. And that’s where he loses Barrett. But it’s still 5-4.
And so I think, you know, we’re going to be left to pick through. And he sends this back to Judge Chutkan at the district court in D.C. to parse it all out with these sort of breadcrumbs of best of luck to you. Here’s our best guess about the line between official and unofficial and how it can be used.
But what he’s essentially doing, I mean, the aggregate effect, of course, is that there’s no way this trial can happen in time. But what he’s essentially doing is from whole cloth, like no theory of originalism in no theory of, you know, what the framers wanted, right? We know from the Federalist Papers, the Federalists knew how to immunize people, right, they immunize Congress.
They don’t immunize the president. And still now we have a theory of immunity. And as Claire says, and this is the single most important thing, we can certainly do the decision tree, right? Picking our way through official act, unofficial act, perimeter can be used as evidence. All of that can happen. It almost doesn’t matter. It almost doesn’t matter. Those are lawyers’ games, because what the court has done is given Donald Trump a map to say, here’s how to make sure that everything you do is a core function and an official act.
Claire McCaskill: So let’s just explore the incredible hypocrisy of the Roberts court. I sat in my office in the Senate and visited with a number of these people as they were seeking confirmation votes. And it was a righteous recitation of originalism, textualism, historical basis, not legislating from the bench, respecting precedent. This court, I don’t know, Dahlia, and I did not do as well in this course as I did maybe in others. I don’t know if there’s ever been a court that has been all over the map in terms of those issues.
And just reminding everyone that not that long ago, they issued a decision around gun regulations for someone who was a danger because of domestic violence issues. And in that opinion, Clarence Thomas had the nerve to say, well, there’s no historical basis for limiting people who have done. Well, for God’s sake, women were property. Of course, you could slap them around at the beginning of our country. There was no historical basis for limiting people who have been convicted of domestic violence to get in a gun. And then they do this. He blithely agrees with his opinion when the whole purpose of the way the founders did the Constitution.
I remind everyone, ours is different than most democracies. Most democracies, the legislative elections control the executive branch. Our founders purposely did not do that. They wanted the executive branch to be elected independently by the people because they did not want an imperial president. They did not want one party to get control and control the presidency for a long time because that allows unchecked power. So they were so focused on not allowing what the Supreme Court has just written. How did these guys sleep at night on originalism and historical basis? I don’t get it.
Dahlia Lithwick: I love that question because it really, I think, puts such a sharp point to the fact that originalism was always an ideology, not a theory. Right? It was never a jurisprudential theory. It was a religion. And it was a religion and we’ve said that we spent the whole spring on amicus, deconstructing how bunk originalism always was and the ways in which this court has even departed from, you know, whatever sort of filament was left of meaningful originalist doctrine.
So I think it’s really important. And that Rahimi case that you’re describing, where the guy beats up his girlfriend, loses the right to have his gun, commits a whole bunch of crimes. And the court is like, oh, wow, maybe this wasn’t the good test case for checking whether originalism permits us to disarm him since, as you say, there was no such thing as domestic abuse at the founding.
So you’re exactly right. That case collapses a whole bunch of the cases that we are construing as wins right now. Mifepristone, right? Not a win.
Claire McCaskill: Oh, yeah.
Dahlia Lithwick: Never should have come to the court.
Claire McCaskill: Never.
Dahlia Lithwick: And it’s coming back, right?
Claire McCaskill: Yeah. It was just a delay.
Dahlia Lithwick: Yeah. It feels like gaslighting. It’s total gaslighting. And by the way, the other abortion case, the EMTALA case, right? Emergency Room Stabilizing Care also will come back. In fact —
Claire McCaskill: Correct.
Dahlia Lithwick: And let’s be really clear that when the court ducks something because they’re embarrassed that they unleashed it and that is the Rahimi case, that’s not a win. That’s not a win. That’s deferring. And so I think you’re exactly right. And the one other piece of this that I think is really, really important is that the huge seismic change that the Chevron case last year.
Claire McCaskill: Yeah. I was just going to bring up Chevron. Yeah. Talk about that, especially compare and contrasting it with the powers given the presidency under the immunity case.
Dahlia Lithwick: Exactly.
Claire McCaskill: Talk about what that means for our government.
Dahlia Lithwick: So very, very quickly, and I know this is the part of the show where people like take out their earbuds and get a snack because we’re about to talk about federal agencies.
Claire McCaskill: Don’t tell them that.
Dahlia Lithwick: Don’t get a snack. Nobody get a snack. Wait, everybody, Claire’s going to get really pissed off at John Roberts again. Stick around. Listen, this is the single most important thing that we don’t credit as important. And that is that government does not happen by Joe Biden setting veterans policy or Donald Trump setting veterans policy. Government happens because we have millions of very smart scientists and thinkers and people who do this for their job, who regulate the air and the water and the food and the drugs we take and the guns that are allowed to be in use and how airplanes land.
All of that is not done by Joe Biden or Donald Trump. It’s done by federal agencies, all these ABC agencies. Chevron is a case from 1984 in which the Supreme Court, and this is a case much beloved by conservatives and Justice Scalia and at the time, Justice Thomas, that said that when a federal agency has a regulation that is ambiguous, we let the agency interpret it. Why? Because Congress cannot write to every future specificity.
So if we’re not 100 percent sure what kind of particulate matter we’re trying to regulate in an ozone case, we let the EPA tell us. That’s gone. What happened in Loper Bright in that Chevron case is that the courts said, no. We don’t care that that case is from 1984. It is as precedential as Roe. Agencies have constructed their lives in the decades since around the idea that you defer to agency interpretation of their rules. That’s gone.
And in that case, and this is so important, what the court said is, you know who gets to decide? Courts. And so from now on, you know who’s deciding about particulate matter? The guy, Neil Gorsuch, who in the EPA case confused nitrous oxide, laughing gas, with nitrogen oxide. Samuel Alito, who in the EMTALA case is telling us what emergency stabilizing care is. He knows better. That guy is deciding. What we have in all of these cases is unelected, life appointed justices who are weighing in on what clean water is, who are weighing in on what virus protection is. This goes to the courts.
And the best way I can emphasize that this is not the time of the show to get a snack, is this is what Judge Matthew Kaczmarek did in the mifepristone case.
Claire McCaskill: Exactly.
Dahlia Lithwick: He said, I don’t care that mifepristone is unbelievably safe. It’s been tested hundreds of times that every single other country in the free world has far fewer regulations. I think it’s dangerous and the FDA is wrong. We have just greenlit, not just the Supreme Court, to decide better than the experts. Every judge in America now has a green light to deregulate agency rules.
And if you are not scared about that, that’s almost a bigger deal than the immunity case, because it means the government cannot govern, science isn’t science, and a bunch of crackpot judges who think they know better how to land planes are in charge of public safety.
Claire McCaskill: And here’s the other interesting thing about this, and I’ve given this some thought because I always like to do three or four chess moves. Okay, so let’s assume that Donald Trump gets elected. Let’s assume that something happens in one of these agencies that is challenged in court by being inappropriate. And let’s assume it gets to a crackpot judge and they say, well, you know, really carbon is not that dangerous, and climate is really not the existential crisis that everyone’s yammering about. So what that does is, that motivates Congress to act quickly and legislate it.
I believe the Chevron decision is the end of the filibuster. I believe the Chevron decision will require the Senate —
Jennifer Palmieri: Yeah.
Claire McCaskill: — to abandon a bipartisan majority for laws that last. And we are now in the era of whoever controls Congress decides a whole lot of stuff besides the stuff that they’ve been deciding, because clearly the Congress is not efficient right now. To counter this in terms of saving our country, Congress is going to have to be more nimble, which I believe means that the filibuster will be gone for sure.
And I don’t know that that’s a great thing. I don’t think it’s a terrible thing. But the irony is we’ve got a lot of unintended consequences that these judges who frankly are so isolated and so insulated and are so much on an ideological bent, I don’t think they’re thinking it through what it’s really going to mean. And by the way, this means all of you that didn’t get a snack, that means you double down on every congressional race you care about. You double down on what you’re doing for your candidates, for the Senate and for the House of Representatives. We must not let the Republican Party control all of government. It is absolutely essential in light of the Chevron decision.
Dahlia Lithwick: And maybe I would add one thing. This is almost the most important way to tie together the immunity decision and the Chevron decision, which you asked me to do, and I utterly failed to do earlier. I think the really important thing is trying to square in your head what does it mean when the Supreme Court at the same moment grants imperial powers to the president himself and completely circumscribes agency powers, right?
Claire McCaskill: Right.
Jennifer Palmieri: Right.
Dahlia Lithwick: And how do you square that? And the two really important things I want to say, because I think it’s not hard to square it. One, because this is a deregulatory juggernaut, right? This is Project 2025 again. We want to, right, in the words of Grover Norquist, shrink government down to the size that you could drown it in a bathtub. That is not inconsistent with giving Donald Trump imperial power, right? That is what Donald Trump himself did when he put up a bunch of agency heads who didn’t believe in the mission of the agency, right? Betsy DeVos in charge of education.
So all this is doing is giving the Donald Trump who didn’t succeed in a massive deregulatory project when he was president, the power to do it now. The other thing that is so essential, and this is the kind of sort of horrible moldy cherry on top, is both of these cases can be squared because they’re both the court arrogating the power to be the decider. This is the court giving itself the power to decide the scope of presidential immunity from criminal prosecution, and it’s the court giving itself the power to tell agencies what their regulations mean.
So if you want to kind of put all these bits and pieces that are quite confusing and technical into one neat little basket, it’s the basket of the imperial monarchic court that gives itself the authority to decide everything every day. And in this particular case, gave itself the power to create an imperial monarchic president while having a deregulatory agenda at the same time.
Claire McCaskill: Unbelievable. I never thought that these words would come out of my mouth, but this Roberts term may be the beginning. We look back in history where the movement really caught fire to expand the court. Yeah, pretty scary stuff. You’re the best. You’re so good at this. Isn’t she good?
Jennifer Palmieri: Dahlia, nobody sees it in 360 degrees the way you do. The impact on culture, society, the long arc of what actually is happening, all the ways it is going to have impact. We really appreciate it. So great.
Claire McCaskill: Dahlia Lithwick is a “Slate” senior editor, legal correspondent and host of the Amicus podcast. She’s also an NBC News and MSNBC law and politics analyst. Thank you, Dahlia. We really appreciate you and everyone should be listening to you. It’s really important over the next few months.
Jennifer Palmieri: Oh my God, yeah.
Claire McCaskill: We’re going to take a quick pause here, but when we’re back, if Joe Biden decided to exit the race, unlikely as it may be right now, or as much as you may think he shouldn’t, or you may think he should, how would the DNC handle nominating a different candidate? We’ll game it out. Back in a moment.
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Claire McCaskill: Welcome back. While right now this is far from the case, there are a lot of doomsday scenarios being talked about and questions being asked. What if Biden were to leave? But also, some fantasy scenarios that we need to debunk. What if party leaders urge him to step aside? Are there party rules to address these issues? So Jen and I want to game it out for you. Here’s the deal. There are several different things that could happen.
One way it could happen that lends credence to, oh, it’ll be chaos, oh, it’ll be chaos. But there’s other ways it could happen that would not be chaotic at all. So let’s do this. Understand that this year, because of the Republicans in Ohio, let’s emphasize that, —
Jennifer Palmieri: Yep.
Claire McCaskill: — President Biden will actually be nominated two weeks before the convention begins. Because there was a glitch with their ballot access, they’re going to do a virtual roll call, nominating Biden August the 7th. Now, that date could change by a vote of the rules committee. It could may become earlier, probably if they wanted it to. But right now, it’s set August 7th.
Assuming that Biden is nominated August 7th, which he has the delegates to be nominated in the virtual roll call, the minute he is nominated, he could step aside. And at that moment, the rules are very straightforward. The chairman of the DNC conferring with the leader of the Democrats in the Senate, the leader of the Democratic governors, and the leader of the Democratic members of the House of Representatives confer, and they decide who to recommend to the Democratic National Committee to be the nominee.
So the decision could easily be Kamala Harris, and the DNC then would validate that, and the convention would be a celebration of Kamala Harris and whoever she named as her vice president. That doesn’t sound like chaos to me. Now, if he were to just release his delegates next week or the following week or the middle of July, that’s a little bit of a different scenario, and it could get slightly chaotic.
Jennifer Palmieri: I don’t know that needs to be chaos, right?
Claire McCaskill: I don’t think it has to be chaos.
Jennifer Palmieri: I know you don’t think it’s chaos.
Claire McCaskill: I mean, here’s the thing. I know the overwhelming sentiment of everyone I’ve talked to, and I’ve talked to literally probably 40 or 50 people. And by the way, even people like, I’ll give you an example. The guy who installed the audiovisual equipment at my house called me. He has my number.
Jennifer Palmieri: That’s a critical guy in your life.
Claire McCaskill: He called me. I mean, and then the guy who drove me to the airport in Atlanta. These are the people I’m also talking to, not just United States senators. The bottom line is there will be such a relief that we don’t have to walk a tight rope between now and the first Tuesday in November. Donald Trump is such a unifier in our party. I actually do not believe our party would not be unified, no matter what happens.
And by the way, we will still be unified behind Joe Biden. We will be worried because it appears right now that he’s going to have more difficulty getting elected than he did before the debate.
Jennifer Palmieri: Yes.
Claire McCaskill: And he was behind going into the debate.
Jennifer Palmieri: Right.
Claire McCaskill: So that’s the bottom line.
Jennifer Palmieri: Okay. Let me tackle a few things for people. Just, one, okay, we know the “New York Times” is coming out with a crappy poll. That may be why some ally of Biden said he is considering dropping out. I mean, the White House, of course, is saying that. My friend, Andrew Bates says that claim is absolutely false that the president told somebody he’s considering dropping out. “The New York Times,” if Brad’s more than seven minutes to comment, we have told them so, okay, you know what? I love these guys. Stop. Like, stop. It’s not credible to suggest that to continue to undermine your friends.
So anyway, but a couple of things people to consider. Okay, as dire as this situation looks. We will not have a real read on polling for another, at least another week about how this is really being absorbed. So there’s sort of two questions here. One is the polling and how much does this hurt the president? And the second sort of question people are weighing is, is the president up to a campaign and like he’s got, that’s in his control to prove to us that he is or he is not. And then the separate track is sort of like, and how are the public absorbing this?
So I think that like Tuesday night, everybody was like, oh my gosh, there’s a CNN poll that shows Kamala Harris does two percentage points better than Joe Biden.
Claire McCaskill: Four percentage points better. Trump was beating Biden by six and Trump was beating Harris by two.
Jennifer Palmieri: Okay. My point is, first of all, still too soon to know for sure, Claire, still too soon to know, for sure.
Claire McCaskill: Oh, no question. No Question.
Jennifer Palmieri: Okay. Okay. All right. Fine. Okay.
Claire McCaskill: We love each other. We are not arguing.
Jennifer Palmieri: So it’s still too soon to trust the polling people. You hate to hear that. That is the true. Okay, A. B, testing candidates would be candidates, hypothetical candidates in a poll is bullshit, okay. Like we have no idea how the public will react to any of these possible would be’s that seem to be doing well in these polls, okay. So it doesn’t mean we should hold on to president Biden, but it does mean that you don’t know what we are walking into, okay. So be wide, clear eyed about that.
The other thing people need to think about, and this gets to the process is there’s a $2 billion campaign that has been built for Joe Biden, okay. There are tens of millions of dollars that have been spent polling, developing messaging and ads for Joe Biden. Yes, Kamala Harris is part of that ticket. And if it is her, if he steps aside and she takes this place, you know, you can weave her storyline into that sort of, but she’ll go with a different coalition. She’ll go after different voters than he had. It will be a different argument and you have to completely revamp a $2 billion campaign. This is not a small deal.
You cannot flip a switch and say, okay, great. Just turn everything, just turn the mechanics over to somebody else. And this is where the process is important. Because the question is, what sets that person, the successor, if there is one, up to succeed? Is it five people? Jeffries, Schumer, Tim Walz, the governor of Minnesota, Jamie Harrison. And I think Tim Walz has two roles here because I think the fifth voice is the chair of the rules committee and Tim Walz is both the head of the Democratic Governors Association and the head of the rules committee, so I don’t know how that works.
Is it better that the decision can be made by a small group without a lot of public viewing and input, and you avoid infighting and you go to Chicago or, you know, with your new ticket or you announce your new ticket after Chicago, whatever. Or is it better and does it set the person up to succeed better to actually go through a convention process? I don’t know. I just want people to think about how complicated and hard this is and how critically important, if there’s a handoff —
Claire McCaskill: Okay.
Jennifer Palmieri: — that handoff goes.
Claire McCaskill: And if there was a handoff, I think Biden would cooperate and make the handoff as painless as possible.
Jennifer Palmieri: Yeah, but how much credibility is he going to have? I’m sorry to say, you know?
Claire McCaskill: Well, but I’m just saying in terms of the apparatus, and I know you say flipping a switch, but keep in mind about a billion and a half of that money has been spent disqualifying Donald Trump and that doesn’t change.
Jennifer Palmieri: True. You’re right.
Claire McCaskill: But that message and that motivation remains the same. So the bottom line is that, you know, will all the people who are working for Biden want to work for Kamala Harris or whoever the nominee might be? Of course, they will. I just don’t know that it is as complicated as it might be in another situation, you know, and then you look at where Biden has been struggling.
Jennifer Palmieri: Right. Because people, everyone is united. People, everyone wants to beat Trump.
Claire McCaskill: Yeah.
Jennifer Palmieri: I think there’s a lot of tolerance. I think voters will tolerate a lot of, and I think Democrats will tolerate, you know, you could make it through a convention like that.
Claire McCaskill: Yeah. And by the way, making it through a convention, I think this convention would be a celebration of our nominee and whoever the vice presidential candidate is, they will come out of the convention and we will dominate the press for the entire month of August, squeezing Trump out. They will come out with what every presidential candidate yearns for. And that is a bump at Labor Day. A bump at Labor Day —
Jennifer Palmieri: Yeah.
Claire McCaskill: — where you’re going to come ahead in the polls and I make a prediction if the nominee is not Joe Biden, I make a bold prediction that they come out of the convention ahead of Donald Trump and never are behind again and win this election. So I could be wrong. And maybe it’s Joe Biden and then I will make sure every member of my family, everyone I know vote for Joe Biden.
Jennifer Palmieri: Sure.
Claire McCaskill: But I just think it will be more unifying than chaotic in my opinion, if it happens. And I don’t know that it will.
Jennifer Palmieri: Well, and legitimacy. I mean, I haven’t really processed that. I hadn’t really processed until now. I mean, until like last couple of days, just like how important, like setting that person up for success, making that person look like a winner —
Claire McCaskill: Right.
Jennifer Palmieri: — and not, you know, there’s this thing called the glass cliff —
Claire McCaskill: Right.
Jennifer Palmieri: — you know, where a woman inherits a bad situation.
Claire McCaskill: Yeah.
Jennifer Palmieri: It doesn’t usually end well. We’ve got great questions the last few days and tried to incorporate our answers and what we’re presenting to you. So for example, Marco in Jupiter, Florida had a great question about like, explain what the convention is going to be like. Are we walking into, you know, the same kind of disaster that they had in 1968? Like, I don’t think that’s like what this is going to be.
Claire McCaskill: Yeah. There’s a lot of good questions. Listen, we are thrilled that you guys are asking questions today. As you might imagine, we just went long because there’s a lot happening. There’s like earthquakes and then follow up earthquakes and then tsunamis. And so we’re busy with crisis management here. And so we didn’t have a chance to get to them all, but Jamison, we got from Patty, Marie.
Jennifer Palmieri: Jamison in Lake County, Montana. I know that.
Claire McCaskill: Yeah. And Ram in Kansas. I wanted to get a question from Kansas because I was raised to not like Kansas.
Jennifer Palmieri: Claire?
Claire McCaskill: I know. I can’t help it. You know, that’s why I was raised. I was raised in Columbia, Missouri.
Jennifer Palmieri: I thought you wanted people to like you.
Claire McCaskill: I know. Except from Kansas. We did get some great listener questions and comments this week from lots of people from all over the country. We’re thrilled about that. We’ll get to more in the coming weeks but keep letting us hear from you. It’s important to us.
Jennifer Palmieri: Yeah.
Claire McCaskill: We’ll be back next week. I’ve got to confess. I’m taking a vacation. And when I get back, Jen, I want all this fixed. Okay.
Jennifer Palmieri: Okay. All right. Mark McKinnon is joining us next week to help us figure it all out. So that will be fun.
Claire McCaskill: Yeah.
Jennifer Palmieri: Thanks so much for listening. It’s as we say, if you have a question for us, please do send it to howtowinquestions@nbcuni.com or you can leave us a voicemail at 646-974-4194 and we might answer it on the pod. And remember to subscribe to MSNBC’s How To Win newsletter to get weekly insights on this year’s key races sent straight to your inbox. Visit the link in our show notes to sign up.
Claire McCaskill: This show is produced by Vicky Vergolina. Janmaris Perez is our associate producer. Katherine Anderson is our audio engineer. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC audio and Rebecca Kutler is the senior vice president for content strategy at MSNBC.
Jennifer Palmieri: Search for “How To Win 2024” wherever you get your podcasts and follow the series.