Another year, another pretty consequential Supreme Court term. SCOTUS recently ended its term with a number of big decisions including striking down affirmative action and issuing opinions in the 303 Creative case, in which the majority created a “constitutional right to refuse to serve members of a protected class,” as noted in Justice Sotomayor’s dissent. It also invalidated the Biden administration’s student debt relief program. Meanwhile, there’s increasing concern about recent allegations of ethical improprieties of SCOTUS justices, like the luxury fishing trip, reported by ProPublica, that Justice Alito took back in 2008 with GOP billionaire Paul Singer, who later had at least 10 cases before the high court. There’s a lot to unpack and we’re excited to share our second crossover episode with the hosts of the Strict Scrutiny podcast, Chris’ wife Kate Shaw, and her co-hosts Melissa Murray and Leah Litman. They join to discuss some of the most egregious actions from the super conservative majority of the Court, what’s at stake for American democracy and cases to look out for in the next term.
Note: This is a rough transcript — please excuse any typos.
Melissa Murray: It was a really big term. And usually those big terms are followed by something of a recalibration, a more muted term, and that’s not what we got this term.
Like, the court was back on its hustle, still burning down barns. And you know, the real question is, after this term, which was a barnburner of a term following another barnburner of a term, the real question is, like, how many more barns can this court burn down or is it just going to set fire to the Constitution? I mean, I think that really is the question.
Kate Shaw: What is the court for? What would we like to see the court do? I mean, I have a couple of thoughts in addition to Melissa’s.
One is to robustly protect the mechanisms of democracy and then to kind of get out of the way. I mean, those are the things that I think are the most important to facilitate self-governance, which it kind of once did, you know, most prominently in the one-person, one-vote cases and a handful of others, but has acted at kind of direct cross-purposes, too, in recent years.
So, facilitate democracy, get out of the way and not second-guess most of the decisions of our policymakers. And I would add that I think that some individual rights protection is a component of the facilitation of democracy, right? Like, actually protecting our ability to make core decisions about our lives, our autonomy, our families. Those things are part of meaningful participation in a democracy.
Leah Litman: The first step is admitting we have a problem, and we need to convince people that the Supreme Court is a problem. And we need to convince elected officials that it’s actually not breaching some sacrosanct institutional norm to treat the court as part of our democracy, instead of above it, and treat the court as part of our political system, especially when they act politically.
Chris Hayes: Hello, and welcome to “Why Is This Happening?” with me, your host, Chris Hayes.
Well, I guess another year, another pretty bad Supreme Court term I guess we could say at this point. I mean, nothing I think is, I’m hoping, I mean, as these words come out of my mouth, I’m like maybe I’m jinxing it. I truly hope no decision as bad as Dobbs happens again in my life, but I don’t know if that’s wishful thinking.
But it was a very eventful term. There were a few bright spots. There was a voting rights case, particularly, where the court in a five-four majority actually struck down what were congressional maps in Alabama that frequently violated the Voting Rights Act. That was good.
But mostly there was a lot of bad stuff, most particularly the ending of affirmative action in any sort of way, shape, or form, both in private and public colleges, as well as the dispensation to discriminate essentially for web designers, but maybe some other enormous class of people that might have all kinds of different economic activities that are putatively expressive. We’ll talk about that.
And then notably, just making hundreds of millions of dollars of debt that had been gone reappear on the balance sheets of millions of Americans who had qualified for the student loan forgiveness program. So, it was a really brutal term.
It also comes, you know, a year after Dobbs in which the court’s standing in the country is at a low ebb, way more reporting and questions about conflicts in terms of the justices, particularly Clarence Thomas, who’s been the subject of some really blockbuster reporting about his ties to various benefactors. And then Samuel Alito as well, who went on a fishing trip and had no idea why he had been selected for this fishing trip but didn’t report it.
All of this feels like it’s reaching a crescendo, but at the same time, you never know like to what, to what end, what happens? One of the things I think that’s difficult about covering the court on cable news and generally discourse about the court is that there’s a kind of then-what question.
Like, you know, if I cover, for instance, in Ohio, they’re going to have this ludicrous statewide election to basically raise the threshold for constitutional reform to 60 percent. If you cover that, you can say like, hey, if you’re in Ohio, I would think about going out and voting. I’m not making an endorsement, but like this is pretty outrageous, or like you could talk to your member of Congress, you can talk to your senator.
There’s something about the court that can feel very impotent and inert because they are outside the reach of this form of democratic accountability.
At the same time, I also do think that, like, the last thing that we have left in a democratic society, in civil society, in a free and open constitutional system is to criticize them. And I do think that matters in the end.
And one of the great places, my favorite place to go for erudite and hilarious Supreme Court discussion and criticism, which is my favorite podcast in the world, probably including this one, which is “Strict Scrutiny.”
You may know “Strict Scrutiny,” or, I don’t know, you may not. If you’ve been listening to this show for a while, we have done crossover episodes with “Strict Scrutiny” in the past, in no small part because one of the three hosts is Kate Shaw, who is also my wife. I think she’s had the most appearances on “Why Is This Happening?” right now.
She is a law professor at Cardozo School of Law. She’s a contributing op-ed writer for “The New York Times,” and she worked in the Obama White House and clerked on the Supreme Court.
Melissa Murray is a Stokes Professor of Law at NYU Law. She’s a Faculty Director of Birnbaum Women’s Leadership Network, which has a mission of supporting gender equity in law school and the profession. She’s also a frequent guest on MSNBC.
Leah Litman is the Law Professor at University of Michigan, focuses on constitutional law and federal courts, Co-Founder of Women Know Law, aimed at increasing diversity and equity in law.
And together, they are the hosts of the one and only “Strict Scrutiny” podcast. It’s great to have you guys all on.
Kate Shaw: Thanks for having us, Chris.
Leah Litman: Thanks so much.
Melissa Murray: Thanks for having us on this conjugal podcast, Chris.
Chris Hayes: You called it a conjugal podcast last time. And I think conjugal in the, no, because, let’s just get right into it, conjugal in the narrow technical legal sense means like marital, basically.
Kate Shaw: And Melissa Murray is a distinguished —
Melissa Murray (ph): Yeah.
Kate Shaw: — professor of family law. And so, the —
Chris Hayes: Right.
Kate Shaw: — term just rolls off her lips in that way.
Melissa Murray: And I’m, like, fourth wheeling this conjugal setting.
(LAUGHTER)
Chris Hayes: But the thing about it is that I think people attach (ph) a sexual connotation to conjugal.
Melissa Murray: I mean, that’s on them.
Chris Hayes: Because they —
Melissa Murray: That’s on them.
Chris Hayes: They associate it with like the institution of the conjugal visit. So, like, I’ve —
Melissa Murray: Marriage is not prison, Kate.
(LAUGHTER)
It’s just not. It’s not.
Chris Hayes: After you use the term in that way, I’ve subsequently used it, including like Kate and I, like, texting friends that we had had a conjugal workout because we worked out together. And people would be like, yo, slow your roll, dude. Like (ph) —
(LAUGHTER)
Leah Litman: I just want to say that, like, putting the whole conjugal thing on everybody else is a little bit like, let’s say Sam Alito and Clarence Thomas saying it’s everybody else’s problem that they think, right, there’s some risk of bias or impropriety when they’re being flown around the world on personal jets or shipped off on superyachts.
Chris Hayes: That’s right.
Melissa Murray: I think it’s slightly different, Leah, because like conjugal is an actual word with an actual meaning that is in the dictionary. And it doesn’t mean getting busy, necessarily.
Leah Litman: What about facilities?
(LAUGHTER)
That’s a word with —
Melissa Murray: I mean, you’re right.
Leah Litman: — with a definition.
Melissa Murray: Correct. And it could obviously —
Chris Hayes: Wait, now we’re getting ahead of ourselves.
Melissa Murray: Okay.
Chris Hayes: No. Here’s how I would start. What would be, like, if you had to give your kind of bumper sticker the term? I mean, I think last term, Dobbs loomed so large, I mean, it was such an enormous and devastating decision, and it was so obviously controversial and obviously had unbelievable, just immediate effects in the world in a way that I think very few Supreme Court decisions do.
How would you summarize the term? I don’t know. Like, I think it’s hard to look for themes. It can sometimes be a little like narratively over-determined. They’re sort of taking the certain (ph) positions they have that happened to be at the time. But is there a big bumper sticker or, like, phrase you would use to describe this term?
Melissa Murray: Burning barns down. I mean, that’s how I would describe it. Last term was a barnburner of a term. I do think people have overemphasized Dobbs, and in overemphasizing Dobbs, we’ve really lost sight of how many other blockbuster cases —
Chris Hayes: Yes, totally.
Melissa Murray: — the court decided. Last term, Bruen, the gun rights case —
Chris Hayes: Bruen, yeah.
Melissa Murray: — Kennedy, a religious exercise case. It was a really big term. And usually those big terms are followed by something of a recalibration, a more muted term. And that’s not what we got this term.
Like, the court was back on its hustle, still burning down barns. And you know, the real question is, after this term, which was a barnburner of a term following another barnburner of a term, the real question is, like, how many more barns can this court burn down or is it just going to set fire to the Constitution? I mean, I think that really is the question.
Leah Litman: I’d say like it’s a conservative legal advocacy organization that has just learned to be just a little bit more strategic about how they pursue the items on their agenda. Like, they saw the plummeting approval ratings after Dobbs, after Bruen, after dismantling the Clean Power Plan. And they thought, how can we do all of the things or a bunch of the things we want to do, on what timeline and how, while still giving ourselves some cover?
Kate Shaw: Yeah. And maybe I’ll just add, you know, if we expand that kind of aperture a little bit beyond just this term, just to the past three years, the span in which the conservative supermajority has been in place, right, so, Amy Coney Barrett is confirmed in October of 2020, we have an incredibly conservative supermajority that is moving very, very quickly to change the law in just rapid, rapid pace.
And I do think among the six conservatives, there are some divisions about how exactly to move the law, like how radically versus how incrementally, and whether and how to take stock of public opinion.
I think Leah’s right. Some of them are a little concerned that they should kind of husband their resources and institutional capital now for longer-term purposes. And I think others just would like to go as radically and as quickly as possible because who knows what the future holds.
But those are divisions on grounds of, you know, tactics and strategy. But I think the overall objective of the six conservatives on the court is to move the law very, very dramatically in the direction of limiting the ability of government and agencies in particular to address pressing problems; in the direction of limiting the rights the Constitution protects beyond just those explicitly protected, like guns and religion. And we have seen just unbelievably quick change across all of those indices in these past three years.
Chris Hayes: So, the speed to me and the aggressiveness are, kind of, in some ways as defining a unifying trait, right? Because there’s obviously different areas of law and we’ll get into those.
But what’s really striking in Dobbs, you know, the court is presented with a law in the state of Mississippi that is unconstitutional, you know, according to the court’s own precedent, right? It was a ban on abortion, 15-week ban. It’s very clearly unconstitutional.
The lower courts strike it down based on the precedents the court had produced. And there’s a question for the court of, well, we can uphold the law and say a 15-week ban is fine and we don’t know, we’ll see, like, what we get after that and where the lines might be.
But instead, they go, Mississippi, you know, says we’re going to go for the whole full thing, strike down Roe. They strike down Roe, right? So, they could have issued a bad decision for abortion rights that would have been short of that.
This term, they have 303 Creative, the facts of which are just like, to me, completely and totally mind-blowing, which is like a person who launches a web design firm that might, in the future, do weddings and may someday encounter a gay couple. And like, they could have just not granted cert.
I mean, I think an important thing for people to understand is that, like 95 percent, I don’t know what percentage of cases don’t get to Supreme Court. They could have just been like, no, man. Like, come back when there’s an actual controversy. It’s a big country.
I’m sure someone somewhere who’s, like, a religious conservative will someday find some gay couple that they don’t want to do the wedding for. So, like, just come back then. But they didn’t. They were like, no, we’ll take this case.
And so, I guess my question is like, how do you understand the rush institutionally? And what is it doing to the law or to the court more broadly? Like it seems to me, when I look at the 303 Creative, or I look at Dobbs, I’m like it just feels like when you say conservative advocacy organization, it’s like when you say hustling, they’re moving in this way that is, to me, the opposite of the way I conceive of, like, judging or judicial temperament.
Melissa Murray: You know, I think Leah got it right. You know, when you have six, they let you do what you want. And this is a group of individuals, some of whom have been on this court for almost 30 years. Clarence Thomas will, in a few years, be the longest-serving associate justice on the court. And they’ve seen a conservative majority squandered for many years. Like, this court —
Chris Hayes: Right.
Melissa Murray: — has had a number of GOP appointees who fell short of the mark and, you know, turned liberal over time, as they like to say. And they’re always wary of the prospect of, you know, Souters arising in the future.
Chris Hayes: S-O-U-T-E-R.
Melissa Murray: Yes.
Chris Hayes: Not people trying to come woo them —
Melissa Murray: Not conjugal Souters.
Chris Hayes: — like dating (ph), right. Yes.
Melissa Murray: Just David Souter.
Chris Hayes: It’s David Souters, exactly.
Melissa Murray: David Souter.
Leah Litman: They still have plenty of billionaire suitors as well.
Melissa Murray: They do.
Chris Hayes: Yes, they do have suitors.
Melissa Murray: I mean (ph), like, those suitors —
Chris Hayes: Yes.
Melissa Murray: — they are open for business, obviously. But they don’t want to squander this conservative supermajority. And one, it wasn’t a supermajority that was inevitable. It was one that was created and cultivated through the machinations of Mitch McConnell opposing President Obama’s actual privilege and prerogative to appoint and nominate a justice to the Supreme Court.
And so, they don’t want to squander it. And I think that explains the alacrity with which they’re moving it. It also explains why the two who are most interested in moving quickly are Thomas and Alito, who’ve been there —
Chris Hayes: That’s a great point.
Melissa Murray: — for a while.
Chris Hayes: Yeah. Right.
Melissa Murray: And they’ve seen some things and they just want to get to the point. And I think the chief justice would be there with them if he were not the chief justice.
And then you have the others who, I think, are just a little bit more concerned about public opinion, maybe more concerned about the appearance of propriety and the rule of law, but they’re not quite on board with it. But they want to get there, too. They just, again, disagree on the timing.
Chris Hayes: I mean part of that, to me, strikes me also, like the Scalia moment is just a reminder, right, and RBG. I mean, RBG, Ruth Bader Ginsburg is a different category because we all knew that she was a cancer survivor and that, you know, the possibility of, you know, her dying while she was on the court was a very real one.
Scalia felt a little more sudden, although, I don’t know, he was in his 70s. Like, I guess part of it, too, is like the actuarial reality, particularly in a world in which, like, the president is very old and then the guy who’s the leading contender on the other party to challenge him is very old in, like, the terms of American history that, like, you just kind of never know.
I mean, I feel like that looms over all of (ph) this. I think the Scalia moment was a real trauma also in that respect, right? Like, we lost this and it could happen. I mean, I’m asking you all (ph) to sort of play mind reader, but I do wonder how much that looms over them.
Kate Shaw: No, I think we’ve speculated along similar lines. Like, they understand how quickly the winds can shift and that a 6-3 supermajority is more secure, of course, than a 5-4 majority. But these things can be fleeting. And I think that’s why we have seen them move so swiftly.
Chris Hayes: Yeah.
Kate Shaw: And I also think Melissa is exactly right that those who were on the Rehnquist Court, right, a very conservative court that predated the Roberts Court, and then the early years of the Roberts Court saw a lot of kind of conservative wish-list items go unfulfilled as this wonderful column by Linda Greenhouse yesterday makes, I think, really clear.
And so, I think they sort of think, you know, no time is guaranteed to anyone. And so, we have to move as quickly as possible while we are in control.
Chris Hayes: More of our conversation after this quick break.
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Chris Hayes: I’m going to present my, like, a sort of argument or a thesis that I have that is, like, lightly held and then just ask your reaction to it. This is a sort of lay thesis of, like, an interested news consumer and someone who listens to your podcast and obviously is married to Kate, so talks a lot about this.
But like, it seems to me like there really are kind of two categories of decisions. There is a fair amount of work they do that are like fairly technical areas, like this Railroad Act says this or, like, New Jersey and New York are fighting over water, and, like, who gets what part of the water?
And I don’t often, I’ll be totally honest, like, read those opinions or even dip into them. But when I do, like, it seems like they’re doing a fairly technical thing. And then when I read, like, the affirmative action case, and I think I said this on Twitter, it’s like these are people who are just like me. They’re just slinging takes. Like, they’ve got takes. And like, some of the takes are good and some are bad.
Like, Ketanji Brown Jackson’s take is great. Like, it’s a great take. And like, Clarence Thomas’ take is bad. But it’s like it just takes. Like, you can find anything in the historical record, with a good library and smart clerks, to support anything.
Like, everyone’s just making arguments basically based on their worldview and, like, they’re backing it up with their little citations. Like, good for you. But everyone’s just making arguments.
Leah Litman: I think it’s getting at something, but I think there are layers to it. I think the fact that there are technical cases where the justices are doing law indicates, one, law is real. Right? It’s a real thing.
Chris Hayes: Right. Yeah.
Leah Litman: And two, they are capable of doing it when they so choose.
And then there are cases where, I think, there’s kind of a spectrum. Like, of course, you can find some things about history or, like, some evidence from precedent, right, to support one argument versus another, but that doesn’t mean that like one side is equally as supported as the other. Like, for example, on the affirmative action cases, I think it’s kind of historically embarrassing to maintain that the Constitution was enacted based on this colorblind theory under which the government could never be race conscious.
I mean, all of the evidence in the immediate aftermath and in the lead up to the enactment and ratification of the 14th Amendment is the government can adopt race-conscious remedies. Now, if you’re an originalist, right, that’s the start of the story. That’s not the end of it.
But I still think, right, even within cases in which the justices are, like, slinging takes and deploying their lawyerly skills to further their worldview, there are still some positions that are more supported than others.
Chris Hayes: Yeah.
Leah Litman: But certainly, right, when they look at competing evidence and conflicting evidence, they’re always going to be drawn to the side that resonates with their worldview because they want the world to make sense. And it’s way more natural —
Chris Hayes: Right (ph). Yes.
Leah Litman: — for them to say, of course, the founders, the drafters, everybody adopted a system that I think is a good one.
Chris Hayes: Yeah. And I think just to stay on that point, because I think the Ketanji Brown Jackson-Clarence Thomas example is a great one, right? So, in the affirmative action case, Ketanji Brown Jackson, who has sort of, I think, in some ways revolutionized the discourse of this, of kind of like this sort of 14th, 15th Amendment reconstruction originalism, right?
Like, okay, like you guys want to talk about that (ph), like, let’s talk about the people that wrote those amendments and what they were trying to do. They were radicals who were committed to, like, a radical vision —
Leah Litman (ph): Mm-hmm.
Chris Hayes: — of a racially equitable society. So, like, let’s take that seriously.
Clarence Thomas writes a thing in which he argues, like, straining so far backwards you think he’s going to, like, literally pull something that Friedman was a race-neutral term, which is, like, manifestly preposterous. Again, so I agree that there’s like better and worse versions.
I guess what I’m sort of coming about (ph) at it is that like, I guess it’s a little bit of like the way the logic’s working, which is it does seem, in some cases, they do have to sort of take things as they are and kind of build up to a decision.
And in some cases, it’s like we know what they’re going to do. They’re just going to go out there and try to find the facts and arguments to backfill what they want to do.
Melissa Murray: So, I think it’s a really interesting point. And I would love for us to come back to the comparison and the discourse between Jackson and Thomas in the affirmative action cases because I think it’s absolutely fascinating.
But, you know, I think, to Leah’s point, you know, part of this is just kind of how the media covers the court. Like —
Chris Hayes: Right.
Melissa Murray: — the big cases are the ones that get the lion’s —
Chris Hayes: Totally.
Melissa Murray: — share of the attention. And then there are this sort of anodyne run-of-the-mill cases that just sort of pass unobserved and unnoticed, but they’re actually really important. I mean, like, even procedure has a substantive element.
And Leah has talked on our podcast ad nauseam this term about how this court is happy to acknowledge the existence of a right but will not be bestirred to actually provide you a remedy that would allow you —
Chris Hayes: Right.
Melissa Murray: — to exercise it. And that’s what a lot of those procedural cases that we’re not talking about are doing. Like, yes, you have this right, but, you know, I’m definitely not going to let you exercise it or I’m not going to facilitate the exercise of it.
And so, I think in order to get a really full picture of what this court is doing and how profoundly radical and aggressive it is, you can’t just focus on the big-ticket cases. You have to get —
Chris Hayes: Yeah.
Melissa Murray: — in the weeds.
Chris Hayes: But there’s also this phenomenon, which sometimes I encounter this, where, like, you know, you’ll be in the political parts of social media and it’s like so nasty and toxic and people are, you know, screaming. And then I’ll like dip into, like, Cubs Twitter and it’s like, whoa, guys, you guys are insane. Like, everyone’s fighting at exactly the same level. The rhetoric’s totally turned to 11 still.
And I thought of that when I was reading the back and forth on the Prince photo, the Andy Warhol —
Kate Shaw: The Andy Warhol Foundation case, yeah.
Chris Hayes: There’s like an intellectual property dispute that has to do with, like, a picture of Prince by an uncredited photographer that then turns into an Andy Warhol print. And there’s a question about, like, the esstate of Andy Warhol and the photographer fighting over who gets credit for it, basically.
And, you know, I read both sides of it and I find them both pretty persuasive. To your point, Melissa, about how much of our coverage of the court has these ideological and political stakes, which makes sense, right? But it was like walking into this weird alternate universe to see them fighting in the same way without those, I guess is what I’m saying.
Kate Shaw: And fighting not across the ordinary lines —
Chris Hayes: Exactly.
Kate Shaw: — right, because of the (ph) Sotomayor majority opinion and a Kagan dissent. And they went at each other very, very hard.
Chris Hayes: Kagan was so snarky.
Kate Shaw: They were both —
Chris Hayes: Like, in the —
Kate Shaw: — really snarky. They were. Yes, Kagan may have been snarkier.
But, you know, we were, I think, cautious in terms of how we talked about it, because this was one of those cases that actually did rise to the level of some public coverage despite not being one of these like marquee cases, but largely because the rhetoric was so striking and, sort of, was so harsh between Kagan and Sotomayor. And there was definitely like a catfight sort of feel to some of the —
Chris Hayes: Totally, yeah.
Kate Shaw: — coverage of it. So, we wanted to be careful not to play into that. But there is something there and I think it sort of touches, I think, both on what Melissa and Leah were just talking about. I mean, one, they were doing law there, actually, I think. I’m not sure, there may have been some ideological priors. But it was one of these cases that was a kind of helpful reminder that it is not always —
Chris Hayes: Yes.
Kate Shaw: — totally over-determined —
Chris Hayes: Totally.
Kate Shaw: — by what we understand their sort of basic ideological pre-commitments to be where they came down. Now, Melissa sort of said, actually, there may have been with respect to Sotomayor and her history as an intellectual property practitioner prior to ascending to the bench, but that’s not necessarily part of a unified worldview —
Chris Hayes: Right.
Kate Shaw: — that these justices really do hold —
Chris Hayes: Yeah.
Kate Shaw: — on a lot of issues, but not all of them. And so, there is something that, I think, actually is very appealing about reading an opinion like that that takes you out of the present moment that feels so impacted.
Chris Hayes: And also, the fact that, like, what I found interesting about it, and again, I’m trying to do this because what I’m trying to think of is like, well, what model of judging do I want or what am I looking for from the court, right? Like, I think that’s something that I’m like asking myself and working hard with.
It’s like, do I want them to find different results that I think are the right ones or do I want them to be doing something different than how they’re acting, right? Like, do I want my own 6-3 majority? I mean, I guess I do, honestly.
And what was interesting about that case was, like, I didn’t have any priors either. And when I read them, I was like, huh, you make a good point. Well, you make a good point. Well, that’s sort of interesting. I hadn’t thought of it that way.
And it felt, like, very elevated to me in its own way, even though they were, you know, going at it.
Melissa Murray: Well, I think that’s actually a really good point because I think so many on the right talk about law as though it were inevitable and obvious, right? So, the Constitution says X —
Chris Hayes: Yes.
Melissa Murray: — therefore, this. And what they’re doing is merely giving effect to what the Constitution says. But I think that case made clear that, you know, these terms, like, in the statute could be read in very different ways —
Chris Hayes: Right.
Melissa Murray: — reasonably read in two very different ways. And that’s often what we have, both on the conservative side and on the progressive side. Like, there are two competing visions here and, you know, it’s not obvious all the time what these terms which are broad and open-ended might actually mean. And you know, we don’t actually know what the ratifiers were saying —
Chris Hayes: Yeah, right.
Melissa Murray: — at least not conclusively. And so, everyone’s doing some kind of interpretive move. And I think that case really emphasized like, yes, you can do these interpretive moves. You can be on the same side ostensibly and still come out in two very different places that are plausible.
Chris Hayes: Let me ask you this question then. What do you want the court to do? Like, let me turn it back around to you. When you think about this, like, do I want the 6-3, like the Warren Court or the 6-3 version of the liberal court; or do I want a court that is conducting itself at some sort of process level or institutionally in a different way than this court I; or maybe some combination of both?
Melissa Murray: Yeah, I mean, would I love to see a 6-3 progressive supermajority? Sure, I would.
But I actually don’t think what the current court is doing is simply like, you know, I just read the Second Amendment in a different way. I mean, I actually think, like, we have precedents that are on the books where courts, earlier courts, wrestled with these questions of broad and open-ended text and they came out with an outcome that —
Chris Hayes: Yes.
Melissa Murray: — a majority of them could agree upon.
And what we’re seeing from this court is like, I just don’t like that outcome. And —
Chris Hayes: Yeah.
Melissa Murray: — I think there’s a different way to do it. And so, I’m just wiping that outcome off the table entirely to get to a new outcome.
And that, I think, is really different. And you know, I would —
Chris Hayes: Yeah.
Melissa Murray: — just like the court to stop doing that, at a minimum. I also would like them to stop going to the Galapagos on other people’s private jets and going on superyachts. There are a lot of things (ph). I wish they would —
Chris Hayes: Yeah.
Melissa Murray: — stop their partners and spouses from interacting with the chief of staff of various presidents. Like, I think those, at a minimum, are things —
Leah Litman: One president.
Melissa Murray (ph): Hmm.
Chris Hayes: Yeah.
(LAUGHTER)
Melissa Murray: Any president, really.
Kate Shaw (ph): Yeah —
Chris Hayes: That we know of, actually.
Melissa Murray: That we know of, correct. Yeah.
Leah Litman: No one else was nuts enough to be engaged in texting with Ginni Thomas about her conspiracy theories. I’m sorry.
Melissa Murray: Not even on Signal. Like, just like SMS.
Kate Shaw: Yeah. I mean, I think it’s such a useful question. What is the court for? What would we like to see the court do? I mean, I have a couple of thoughts in addition to Melissa’s.
One is to robustly protect the mechanisms of democracy and then to kind of get out of the way. I mean, those are the things that I think are the most important to facilitate self-governance, which it kind of once did, you know, most prominently in the one-person, one-vote cases and a handful of others, but has acted at kind of direct cross-purposes, too, in recent years.
So, facilitate democracy, get out of the way and not second-guess most of the decisions of our policymakers. And I would add that I think that some individual rights protection is a component of the facilitation of democracy, right?
Chris Hayes: Right. Yeah.
Kate Shaw: Like, actually protecting our ability to make core decisions about our lives, our autonomy, our families. Those things are part of meaningful participation —
Chris Hayes: Yeah.
Kate Shaw: — in a democracy. And then to stop second-guessing whether there was too much student debt relief provided by the president pursuant to a pretty clear grant of authority by Congress.
And then I think back to what Melissa said, like a degree of humility, right? The amount of hubris on display by this court is just astonishing.
Melissa Murray: Yeah (ph), the arrogance.
Kate Shaw: Yeah.
Leah Litman: Yeah. Basically wanting some humility or at least wanting Supreme Court —
Chris Hayes: Yeah.
Leah Litman: — justices who don’t love the job so much and don’t think it’s the most important job in the world. Like, they shouldn’t think that they know better than all of the prior courts. They shouldn’t think they know better than Congress. They shouldn’t think they know better than the executive branch. And they shouldn’t think, like, we should be the ones deciding all of these things, again, outside of what Kate describes as facilitating basic preconditions for an actual democracy.
Chris Hayes: And that gets to the stare decisis question, which I do think is pretty important here, because you guys print one of the “Strict Scrutiny” T-shirt items is “Stare Decisis Is For Suckers.” And you know, in some ways, I think that what’s key about stare decisis is that it is the thing that separates judging from being a legislature.
Like, you know, Barack Obama and the Democrats passed the Affordable Care Act. Then, you know, Republicans pledged to repeal it. Now, they weren’t able to. But no one was like, it’s not fair. Like, you can’t just repeal a law.
It’s like, no. Well, they got power. They can try to. I mean, they couldn’t convince people. But like, there’s no sense of stare decisis in the sort of legislative entities. And, of course, stare decisis is also what is the regulator on the lower courts. Like, they all have to do this thing that’s different.
But when you just toss that out and you toss it out so, like, hubristically, like that is the thing that really feels (ph). And Kate wrote a really good piece for “The Times” about some of the religious liberty, like the two of the religious liberty cases that made me think about this because, Kate, your point was like, in these two cases, like, the court has been around this rodeo a bunch of times and come up with ways to deal with really genuine conflict and tension in a democratic society between (ph) different things.
And just to go in and be like, nope, like none of it matters anymore, it’s like it’s really quite arrogant.
Kate Shaw: Yeah. And actually, I think what’s sort of interesting there is, so we’re talking about stare decisis in the kind of technical legal sense, right, to basically, presumptively abide by precedent and not to overrule prior cases unless there is some really good reason for doing so. So, that’s kind of the classic definition of —
Chris Hayes: Yeah.
Kate Shaw: — stare decisis.
But there are also, I think, more expansive ways to understand stare decisis, which is just like other institutional actors have devised ways to balance competing values to kind of do the work of governance. And disrupting all of that, too —
Chris Hayes: Right.
Kate Shaw: — it’s a little different from, you know, breaking with stare decisis, again, in traditional terms. But I think it’s a similar move, which is just to say, you know, we know better. We have this kind of pristine vision of, like, one clause or a couple of words in the Constitution somewhere. And so, we’re just going to take a sledgehammer to settle the institutional arrangement.
So, actually in the two religious freedom cases that I wrote about in “The Times,” so 303 Creative which we’ve just talked about, which I don’t know if we want to return to, but also a case called Groff v. DeJoy, which was lower profile, just about kind of religious accommodations under federal law at work. And actually, in neither case did the court explicitly overrule a precedent, but in both cases, fundamentally reordered these principles of —
Chris Hayes: Right.
Kate Shaw: — equality and dignity in the commercial marketplace, of the balance of competing values in a workplace in which people have lots of different needs. And the court just said, like, we don’t care about any of that. We’re going to wipe it all away.
So, I think the hubris actually goes beyond just the willingness to overturn settled precedents.
Chris Hayes: And this is a thing that even drives me even crazier, like to go further, and I know that I’m singing from the “Strict Scrutiny” hymnal here. I apologize if I’m like giving you guys back your takes because I listen to the podcast and they may (ph) just be in there. There (ph) may be like a really titanic effort in mansplaining and —
Leah Litman: If Chief Justice Roberts can hepeat Ketanji Brown-Jackson —
Melissa Murray: Yeah. It’s fine.
Leah Litman: — in the affirmative action case, you can hepeat our takes back to us. It’s fine.
(LAUGHTER)
Chris Hayes: Okay. But like, the other thing I just feel like, again, I’m saying this in a kind of non-technical way of just a sort of more sociological one, like, I saw Kate clerk at the court and, you know, I met those clerks and it’s like they were all super, super, super smart. They were super impressive people. But it’s like, it’s just you guys in a law library, like, going through this stuff. Like, you don’t have any like magical insight.
Like, when you think about these decisions or you think about the Kaczmarek decision, you know, the (ph) national injunction on mifepristone and then for the Fifth Circuit to come in a few days later and be like, well, we’re upholding this and not this. It’s like there’s just some 26-year-olds, like, slamming Red Bull somewhere who are like, we’re going to say what the FDA has been doing wrong for 20 years about mifepristone.
It’s like, bro, you knew nothing about this four days ago, four days ago.
Leah Litman: Well, Sam Alito admitted to “The Wall Street Journal” he didn’t even know how to pronounce mifepristone before he was willing to allow the Fifth Circuit’s ruling to go into effect. So, the 70-year-olds, they’re not doing, like, that much better.
Chris Hayes: It’s just such a titanic level of hubris, like between them and the clerks. I mean, obviously they’re driving the train. But just think that, like, there’s all these bodies of knowledge and, like, accrued history and all this stuff. And just to, like, ride in and be like, this is the way it is. It’s just like, wow, you have a lot of confidence in yourself.
Melissa Murray: Well, I mean, this is sort of the weird thing, I mean, because, like, it is kind of weird gaslighting, right? So, I can remember back to 2015 with Obergefell, which was the gay rights case where the court legalized same-sex marriage, like interpreted the Constitution and the right to marry to include a right of same-sex couples to marry as well.
And the chief justice wrote this really stinging dissent about, you know, how this actually, what (ph) should have been decided by the people, not nine unelected lawyers. And he ended with, just who do we think we are?
Chris Hayes: Yes. Yes.
Melissa Murray: And it’s just like —
Chris Hayes: Yeah.
Melissa Murray: — yes, sir, who do you think you are?
Chris Hayes: Yes.
Melissa Murray: I mean, so like just the loss of touch from just a couple of years ago is actually staggering.
Chris Hayes: But there’s also, like, a (ph) crazy inversions of the (ph) valence of activism and —
Melissa Murray: Yes.
Chris Hayes: — restraint.
Melissa Murray: For sure.
Chris Hayes: Right? I mean, and which I think is worth talking about, right? Because anytime you point these out, then you end up on the other side and you’ve got to think to yourself, oh, am I doing the same thing, right? Like, all of a sudden, it’s like activism was fine when it was a Warren Court, now I want restraint because you guys have it.
Like, but there is a real valence shift in this activism-restraint question ideologically.
Melissa Murray: I’m going to defend whatever the Roberts Court was doing back in 2015, because there was no existing precedent that said you could not interpret the right to marry. The right to marry —
Chris Hayes: Totally, yes. Right.
Melissa Murray: — is not in the Constitution.
Chris Hayes: Totally, yep.
Melissa Murray: Loving v. Virginia did not limit it just to interracial couples and monoracial couples. Like, it’s one of these broad, open-textured terms.
Chris Hayes: Yup.
Melissa Murray: And five people on the court interpreted that mandate and it’s like, it must mean —
Chris Hayes: Totally.
Melissa Murray: — that it includes any. It’s like this broader set of individuals, like, the values must be the same for this other group.
And I think that’s meaningfully different from looking at an earlier court, deciding seven to two that the 14th Amendment’s grant of liberty includes the right of a woman to terminate a pregnancy and deciding I don’t think that’s true and I’m going —
Chris Hayes: Right. Yeah.
Melissa Murray: — to overrule it. I mean, I think —
Chris Hayes: Yeah.
Melissa Murray: — those are just fundamentally different things.
Chris Hayes: Yeah.
But, Leah, to this point about, like, this question about sort of the arrogance or the kind of also like imperialism a little bit, like Kate, you were saying about, like, what Congress gets to decide, what administrative agencies get to decide, like one of the other big themes, it seems to me, is then like the court arrogating more and more power to itself in purely sort of institutional terms.
Like, if you were doing an institutional history and this was, you know, 16th century Ottoman courts, right, and they were doing it. And you’re not, like, invested in what the particular ideological disputes are, but institutionally, you’re like, well, the court was amassing more and more power during this period of time. Like, it does feel like that’s one of the themes here, too. Like, we get to decide, we get to say more and more.
Leah Litman: Yeah, that’s what they were doing across a slew of cases, even some of the cases that were portrayed as, like, liberal wins or victories, like the independent state legislature case, for example, about when and whether state courts can enforce their state constitutions to protect voting rights.
You know, the end of the chief justice’s opinion, it basically said, you know, TBD. You know, we’ll see when, if ever, state courts interpret their state constitutions in ways that transgress to us the ordinary bounds of judicial review. Basically, saying we might seize power from state courts and decide when they’re not doing interpretation right.
You know, in the student debt case, they said it’s up to us to decide basically, like, when a regulatory program is too big, such that we’re going to declare it presumptively illegal. And in, you know, the cases about respect for prior precedent, you know, in affirmative action or 303 Creative or Dobbs, the term before, they basically said, we’re going to decide whether any reliance interests, you know, on those prior cases are sufficiently concrete that they seem real to us.
And they are also seizing for themselves the power to characterize all of their past cases in completely outlandish ways. I mean, in the affirmative action cases, for example, they said, we’re not actually overruling any of our prior cases. We are just going to utterly redescribe them to mean the exact opposite of what they said before.
And so, that’s a ton of power that they’re asserting.
Kate Shaw: And can I just say that the major questions cases, so Leah has written about this and just mentioned, that’s the doctrine that the court, in part, used to strike down the debt relief plan. It’s also the doctrine that was used to strike down the Clean Power Plan and several COVID-era measures, the eviction moratorium and the vaccine or test mandate.
And it is totally invented, right? It is a doctrine that Kagan, in her dissent in the loan cases, calls the “made-up major questions doctrine.” And it really is.
I mean, it’s a thing they kind of were sort of using as an exception to ordinary rules of deferring to agencies for, you know, about 20 years or so.
But just in the last couple of years, it has become this unbelievable tool for the court to basically pull out and suggest, like, this is law. This sounds like law. It’s a doctrine. It’s a major doctrine. And we can basically use it in order to second-guess any policy judgment that we dislike by characterizing the assertion of agency authority as too major or involving, you know, an issue of excessive political and economic significance.
And as Leah has written about in an article with Dan Deacon, that is just an unbelievably convenient tool because the court can always say —
Chris Hayes: Right.
Kate Shaw: — oh, this is an issue of political controversy. And it creates really weird incentives in that it tells activists, like, make something politically controversial.
Chris Hayes: Right. Right, right, right.
Kate Shaw: And then, if it is, we can say the agency couldn’t do it.
So, it’s a very perverse doctrine. And it’s, I think, one of the most important developments on the court in recent years.
Chris Hayes: And it’s just the idea that, like, I mean, you know, if you pass a law, right, and Congress passes the law, both houses, the president signs it and they create some agency, you know, the EPA. And then later on, they say the EPA is going to, you know, figure out how to meet these targets for (ph) whatever it is. The Supreme Court has basically invented this idea that, like, if it’s too much stuff they got to do and we don’t like it, then maybe the Constitution doesn’t allow it, basically. Am I right?
Kate Shaw: It’s ostensibly a statutory interpretation doctrine, not a constitutional doctrine.
Chris Hayes: Oh, it’s not constitutional?
Kate Shaw: It’s kind of like the enforcement of something called the non-delegation doctrine. But yeah, Leah, is really —
Chris Hayes: But isn’t that across a bunch of different statutes?
Leah Litman: Yes. No, that’s why it literally makes no sense.
There is absolutely no basis to think that Congress wrote these statutes in ways that it would give to the Supreme Court the authority to say, well, if a policy is major, then the agency can’t do it. There’s no reason to think that Congress enacted all of these huge public interested (ph) statutes —
Chris Hayes: Right.
Leah Litman: — over the last 50 years based on some intent to give the Supreme Court the authority to just declare certain policies politically significant and controversial and, therefore, not within the bounds of the statute. That’s insane.
Chris Hayes: And yet it is a grouping of them. I don’t think I’d realized that. So like, they just apply it to different statutes and different agencies?
Leah Litman: Clean Air Act, the Public Health —
Chris Hayes: That’s wild.
Leah Litman: — Act.
Chris Hayes: It’s not even (ph) —
Leah Litman: The list goes on, the HEROES Act, right? Like this court, it is the antihero.
(LAUGHTER)
Melissa Murray: It’s me. Hi, I’m the problem.
Chris Hayes: Well, let’s talk about the members of the court. I mean, you know, the story that the right is telling right now, and, you know, we had this amazing moment where Sam Alito goes running to “The Wall Street Journal” editorial page, you know, because ProPublica is about to publish a story. And he’s trying to get out ahead of him. It’s very thirsty and desperate and kind of weird and —
Melissa Murray: Parched, very parched.
Chris Hayes: Yeah, parched. Parched.
(LAUGHTER)
Yeah, it’s parched.
But, you know, you clearly have this increase in scrutiny of the finances of the court. I mean, I think in some ways there’s even people going through their disclosures that weren’t before. We’re also finding out there’s lots of stuff they’re not disclosing.
I mean, the Thomas stuff, to me, is just like so obviously nuts and so obviously, like, not acceptable anywhere. Like, I work for a news organization. And obviously, you know, there’s a bunch of differences, but like, I can’t accept stuff like that. Obviously not. Like, it would obviously be unethical for me to accept, like, if there’s someone I’m going to possibly cover someday and is going to send me on a big lux vacation. Like, no way.
Leah Litman: Yeah. But what if it’s a close friend and they want to buy your mom’s house?
Melissa Murray: Yeah. It’s okay —
Leah Litman: What about them?
Melissa Murray: — for you to have friends, Chris. Like, having —
Chris Hayes: It’s just —
Melissa Murray: — friends is constitutional.
(LAUGHTER)
You should be able to have a friend who’s rich.
Chris Hayes: It’s just so all obviously, to me, like obviously unethical. And I guess there’s two things about it. One is like, okay, so what? Right? So like, how should we think about what should happen out of this?
But the other that I find a finer point on it, and I’m repeating myself because I made this point in public before, but it’s like what I find galling about this is, like, your job is to judge. You sit in judgment of other people. You decide whether people literally will live or die.
And you have bad judgment. You have really bad judgment. And you can show me all of the opinions you’ve written, this set of facts about what you judge to be fine and ethical shows you have poor judgment, and not just like not great judgment. I mean bad judgment, like bad judgment. If you encountered this in a person, if it was a friend asking for advice, well, do you think I should go (ph)? Should I have this guy pay my godson’s tuition?
No. No, obviously not. And it’s like what it shows about the ability to judge, their judgment is so bankrupt. It’s really shocking.
Melissa Murray: Is it bad judgment alone or is it also the hubris?
Chris Hayes: Yeah, right, I think those are (ph) —
Melissa Murray: Right? I mean, I —
Chris Hayes: — combined, yeah.
Melissa Murray: — think they’re interrelated.
I mean, like, the hubris isn’t just played out on the pages of the U.S. reports. It’s this like, let me play in your face and take this money and get rid of affirmative action and call it unearned largesse from white people, even as I take money from a white person to send my grandnephew to school.
Chris Hayes: It’s wild.
Melissa Murray: It’s wild.
Leah Litman: There’s so much to be said about the corruption things. But just on this hubris point, I think it is really stark when you line up their excuses for what they did and how stingily, right, they are interpreting these statutes.
You know, they took extensions to make their disclosure requirements. They’ve said, oh, it was maybe a mistake, or I didn’t realize I had to disclose this, or whatever. Who was to say whether this person had business before the court? I couldn’t be bothered to run a conflicts check.
And you line that up with their jurisprudence, particularly in death penalty cases, where they have said people who are sentenced to death literally cannot have their cases heard if they file an appeal one day late or if the lawyer, the state appointed them, did not introduce any evidence of their innocence, the court has said that’s your fault and you can’t actually introduce any of that evidence later in federal court.
And the entire mechanism that this array of billionaires is providing is this cocooning of the Republican justices in a safe space —
Chris Hayes: Yep.
Leah Litman: — where they are validated, they get pats on the back, and they are told basically you’re doing a great job, sweetie. You’re doing amazing, sweetie. And it drives (ph) —
Melissa Murray: It’s the Jennerfication, the Jennerfication of the court.
Leah Litman: The Kris Jennering of the Supreme Court through billionaire benefactors. And this is their, again, alternative universe that is created for them so they can continue to inhabit these insane worldviews.
Kate Shaw: And in terms of this, kind of, this justificatory move that they’ve made, they’ve made a couple. One is they’ve said, well, the statute didn’t clearly require us to disclose these activities. I think it’s a garbage statutory interpretation that Sam Alito offered in the pages of “The Wall Street Journal,” but he at least tried.
But the other move I find, sort of, even worse is that they basically say, well, okay, the statute sort of says what it says, but I sought the advice of colleagues, and they all said it was fine. Which is like, what? Again, like to Leah’s point, like, the harsh consequences that they are happy to require or at least allow to follow from people mistakenly reading the law paired with or read against this, just kind of like Nino said it was okay and so I never read the statute, it is astonishing.
These are all really helpful developments insofar as the court has long held itself out to kind of, you know, be this Olympian body that stands outside of politics, that is not populated by mere mortals. And a lot of developments, both, I think, substantive and jurisprudential that we have been talking about, but also these ethical developments, I think, are operating in tandem to disabuse the public of that conception of the court.
And then there are, I think, subtle moves. Like, I was rereading Justice Kagan’s dissent in the loan cases and she, you know, kind of point by point, refutes what the majority opinion by John Roberts says about why there’s even standing by this like weird state entity in Missouri, but also the major questions doctrine holding. And then she says, the court violates the Constitution.
And it’s a really striking moment, Jamelle Bouie wrote about it in “The Times,” because the court is the one who judges, right, who violates —
Chris Hayes: Right, yeah.
Kate Shaw: — the Constitution. The court does not think of itself as even, I think, capable. It’s like this record —
Chris Hayes: Yeah. It’s (ph) a great point.
Kate Shaw: — scratch moment.
Chris Hayes: That’s a great point.
Kate Shaw: But like, they’re institutional actors. It’s an institution. It is embedded within our separation of power scheme. And I think the more we realize that, the better.
Chris Hayes: Well, and there’s also something about it that is sort of gaslighting when they sort of rewrite what they said before. There’s something, it makes me want to tear my hair out, of like these little like very lawyerly and weaselly defenses about, like, well, Harlan Crow doesn’t have business before the court. It’s like, bro, he cares about it all. He’s a big billionaire right-wing donor.
Like, here’s Leonard Leo we’re palling around with on the fishing trip. He doesn’t have business before the court. His whole business is the court. Like, what do you mean he doesn’t have business? Like, yes, he’s not a named party as a plaintiff.
But it’s also like, again, to come back to just like how I would think about it in terms of, like, journalistic ethic, it’s like no journalist worth their salt would let Paul Singer. You would be fired from “The New York Times,” like, tomorrow if they found out that, like, you let Paul Singer fly you out to some fancy fishing trip and you like fished with him, and then you didn’t disclose it. Like, the idea that this narrow idea of business before the court, in that case —
Melissa Murray: Yeah.
Chris Hayes: — Singer actually did, is just a ludicrous way of conceiving all this.
Melissa Murray: You’re focused on the most recent ethics stuff, Chris. And you know, I think it’s the stuff that’s captured the popular imagination because it does seem like this kind of quid pro quo. But even earlier this term, back in November, “The New York Times” published what I thought was a blockbuster story by Jo Becker and Jodi Kantor about this concerted campaign of influence to get close to the conservative justices —
Chris Hayes: Yes.
Melissa Murray: — and stiffen their resolve. I mean, and it wasn’t —
Chris Hayes: Yep.
Melissa Murray: — just sort of, I mean, it was like they were operating some kind of weird, conservative, you know, matchmaking operation like, you know, hinge, right-wing hinge, where they were matching up justices and their wives with conservative donors and their wives to make friendships. And this is how the friendships start to (ph) sort of percolate.
But it’s even more weird, like they buy a building across the street from the court so these conservative individuals can more casually run into the justices and befriend them. I mean, I think when you take that background and then think about these friendships, it’s actually way more striking and astonishing that more people aren’t alarmed. Like, it is an —
Chris Hayes: Yeah.
Melissa Murray: — active campaign to capture the court and it seems to be working.
Leah Litman: Well, and I think the existence of that influence and access campaign gives a lie to the court’s corruption cases, because the premise of that influence and access campaign is that being buddy-buddy with the justices and talking —
Chris Hayes: Yep.
Leah Litman: — with them about your preferred causes and talking with them about your ideas gives those ideas and causes a greater chance of success. But in the court’s eyes, like, purchasing access to government officials by lavishing them with gifts isn’t actually corruption. It doesn’t even give rise to the —
Melissa Murray: It’s politics.
Leah Litman: — appearance of corruption.
Melissa Murray: It’s politics.
Leah Litman: Right (ph), that’s just politics. This is what Kate has written about.
Chris Hayes: Yes.
Leah Litman: And like, it’s obviously wrong and they are performing why it is wrong every day.
Chris Hayes: That’s part of it, too. It’s like this intentionally cramped vision of what corruption is, which shows up in their jurisprudence as well, like in a whole bunch of cases, in McDonnell and Bridgegate and all these different cases. But you know, Lawrence Lessig, I always had this great thought experiment where it’s like, you know, because the idea is like, well, no one changed a vote because of it, right, or I didn’t rule because of it.
And it’s like, Lessig’s got this great thing where he’s like, you know, if you show up to Congress and, like, you care about two things, right, really strict intellectual property, you know, copyright law and, like, making sure that like poor women’s maternal mortality goes down. Like, you’re going to find a lot of people on the former who are going to, like, really nourish you and support you. And next thing you know, you’re doing a lot of work on that.
And like, how much work are you doing on the maternal mortality, right? Like, no one ever has to change their minds. No one ever has to be persuaded over to take a position they wouldn’t either. It’s what’s encouraged, cultivated, how extreme, how aggressive you are. Right? Like, that’s all the stuff of the corruption. And that’s the stuff of corruption in Congress, too, often.
I mean, it’s all the same. But this totally cramped view, I just feel like I’m being thrown arguments that seem insulting to me by these people routinely about, like, how pure they all are. It’s like are you out of your minds?
Leah Litman: How did it feel when Sam Alito told you to consider puddles when he was telling you that water isn’t wet and, therefore, the EPA couldn’t regulate wetlands, right? Did that feel less insulting? Because they do this all the time.
(LAUGHTER)
Chris Hayes: Right. Right, that’s a good point.
Kate Shaw: They do. But as on the corruption cases, one thing to say, and by no means am I suggesting that on all of the issues that we have talked about in the last hour the justices bear, like, equal responsibility, but it is striking that in the corruption cases, a lot of them have been unanimous. Like, this is not —
Chris Hayes: Yes. Yes.
Kate Shaw: These are not cases where the liberal justices have defected all that often. So, the two cases this term, Percoco and Ciminelli, were both basically unanimous opinions reversing corruption convictions because, again, there wasn’t enough of like a quid pro quo just to really simplify both of those cases. That was also true about the McDonnell case involving the Virginia governor. That was also true about the Bridgegate case. Not all of them, not the campaign finance cases. Obviously, Citizens United is a 5-4 case.
There is something more kind of endemically wrong with the —
Chris Hayes: Yeah.
Kate Shaw: — way this court understands corruption that is not purely ideological.
Chris Hayes: And the McDonnell case is such a great match, right? Because it’s like, well, I’m the governor and I got this rich buddy, and he likes to get me stuff and he likes to (ph). And like, yeah, I’ll put a meeting together here and there for him, but like nothing more than that.
It’s like, right (ph), it’s very funny to think about that case in light of the Harlan Crow. Like, they’re sitting there being like, is it okay to have a rich buddy who gets you lots of perks and, like, maybe you give them like a little extra access. Like, they’re judging that in the McDonnell case while, like, Harlan Crow is, like, his mom’s landlord; his grandnephew’s, like, tuition benefactor; and taking him on his yacht. It’s like, okay.
Leah Litman: Well, one of the most, I think, revealing things to happen after all of the reporting of the corruption surrounding the court was the statement that Leonard Leo made after one of the ProPublica stories where he basically said, this is Leonard Leo, you know, the guy who was driving judicial nominations and raising millions and billions of dollars for conservative advocacy groups to basically retake the courts and remake law, society, and culture, he said, these ProPublica stories are just an effort to get woke billionaires to contribute dark money to remake the Supreme Court to impose, get this, their disordered and unpopular cultural views on the rest of the country.
And it was like, wait, you just described exactly —
Chris Hayes: Yes.
Leah Litman: — what has been going on.
Chris Hayes: Yeah. Yes.
We’ll be right back after we take this quick break.
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Chris Hayes: So, what do we do? I mean, “Strict Scrutiny” is, you know, massively popular because I think you guys are amazing and you did an incredible job of sort of synthesizing it. And it’s also fun and entertaining. And also, I think, you guys share, you know, you just like give voice to this, this sort of frustration, you know, with the way the courts conducted itself, but you do it at a very high level of like, you know, technical expertise. And like, you’re able to kind of, like, walk through these cases, you know them so well.
But at the end, it’s like, what’s the boundary here? You know, what do we do? And I guess I’ll throw out one thing, which I think Kate has persuaded me of this, and I think it’s true, and I think it actually helps me think about guiding it, which is that like, they do read the paper and they do watch TV and it does matter what people —
Kate Shaw: Some of them. Some of them do.
Chris Hayes: — are saying about them.
Melissa Murray: That’s quite a conjugal take, Chris.
(LAUGHTER)
Chris Hayes: Like, it does matter. Criticism matters. It would be better if there were other things, but in the absence of everything else, like public critique, and I think, you know, to me, the Sam Alito moment was a satisfying moment, right? He doesn’t run to “The Wall Street Journal” to get out ahead of a ProPublica piece if he thinks it doesn’t matter, right?
Like, at one level, you could be like, yo, I got a lifetime. What are you going to do? You going to impeach me? Get out of here. I’m here forever. You’re stuck with me. I don’t care. Write whatever. Write your little stories, guys.
But he doesn’t feel that way. If he felt that way, he would not have panicked, frankly, in the way that he did to go to his buddies at “The Wall Street Journal” editorial page and say, can I get in there and write (ph), you know?
So that, to me, signals it does matter to them. And that does make me feel better about there being some level of accountability, but I don’t know in the end, you know, how much that’s worth.
Melissa Murray: So, I think you’re right that there are some of them who do take public opinion seriously. And we saw this last term when a bunch of them went on their worldwide troll tour. Like, you know, when Amy Coney Barrett went to the University of Louisville to the Mitch McConnell —
Chris Hayes: The McConnell Center?
Melissa Murray: — Center and talked about how they weren’t partisan hacks while McConnell —
Chris Hayes: With him sitting there.
Melissa Murray: — was literally right there. So, some of them, like those —
Chris Hayes: That was amazing.
Melissa Murray: I mean, the biggest self-own in modern jurisprudential history. So, some of them do care, I think. But there are, I think, some of them who just are totally on DGAF energy, and they don’t care at all.
And you know, Alito, you’re right, that was an incredibly striking moment because I think ordinarily, he doesn’t care. But it is notable that Justice Thomas is in a heap of ethical quandaries and he’s not explaining himself to anyone.
I mean, Ginni had to go and testify before the January 6th Subcommittee and she seems unrepentant about her involvement. I mean, so there are, I think, a minority of them who are just like, I have life tenure.
Chris Hayes: Yeah.
Melissa Murray: You don’t have a majority in either house of Congress to do anything about this. And so, I’m going to keep on keeping on.
In terms of what they listen to, I mean, yes, I think there are a couple of them who are attentive to what’s going on in sort of progressive and mainstream media. I also think there’s a very significant minority of them who are steeped in a diet of FOX News and —
Chris Hayes: Yeah. Yes.
Melissa Murray: — you know, OAN or whatever else. And they don’t care what’s in “The New York Times.”
Chris Hayes: I don’t think Clarence and Ginni are watching my show at 8 p.m. Let’s put it that way.
Melissa Murray: I mean, they’re probably watching Joy’s. They’re definitely on “The ReidOut.”
(LAUGHTER)
Chris Hayes: Yeah, they tune in seven. Then they’re like, oh, no —
Melissa Murray: For “The ReidOut,”and then they’re like —
Chris Hayes: — not this guy. Yeah.
Melissa Murray: — not this guy.
(LAUGHTER)
Leah Litman: Yeah, I mean, I think this is one of the things that is most challenging about the court is to give people kind of concrete action items that they can actually see will have some payoff to make the world and the court a better place. But I just don’t think that that’s how it’s going to happen.
And instead, I think we should think about the criticism being directed elsewhere. Yes, it might have some itinerant short-term benefits in convincing the court sometimes not to go full throttle. But even if it does that, that’s just going to result in more legacy media coverage about how this is a moderate institutionalist court. And then, eyes will turn away from the court and they will go back to being cray-cray.
And so instead, the criticism should be directed at people around you, right? The first step is admitting we have a problem, and we need to convince people that the Supreme Court is a problem. And we need to convince elected officials that it’s actually not breaching some sacrosanct institutional norm to treat the court as part of our democracy, instead of above it, and treat the court as part of our political system, especially when they act politically.
So, we need to direct the criticism and the outrage and all the things we’re saying about the court, right, to each other to get enough people to convince enough elected representatives to do something about the court because there needs to be a longer-term structural solution besides people just screaming, right, in your —
Chris Hayes: Right.
Leah Litman: — ear holes about the Supreme Court, because that’s not a sustainable check on the court.
Kate Shaw: Right. It’s fun. We enjoy doing it (ph) —
Leah Litman: Yes.
Kate Shaw: But we are not the answer.
Leah Litman: It’s cathartic.
Melissa Murray: We’re not —
Kate Shaw: Yes.
Melissa Murray: — going to save democracy with this podcast.
Kate Shaw: No. Well, one thing though, to return to something you said earlier, Chris, about the, you know, August election in Ohio to ratchet up the, you know, threshold for getting a ballot initiative in Ohio, you’re right the court is frustrating in that there are not immediate tangible action items.
But just as, you know, Leah and Melissa were just saying, there are indirect ways through Democratic checks to get to the court. So, convincing both voters and elected officials that the Supreme Court is central to the votes that they cast and as elected officials to the actions —
Chris Hayes: Yeah.
Kate Shaw: — that they take. And that’s obviously, you know, mostly in Congress, but not totally absent in state legislatures either who are, you know, passing laws against the backdrop of what the Supreme Court might do or what the Supreme Court has done. And so, both substantively and rhetorically, remaining mindful of the role of the court in all of that, I think, is a step.
Chris Hayes: And court, more broadly, I mean, I think one of the things that you saw in that, you know, election in Wisconsin for the state Supreme Court, you know, that was a triumph of mobilization. I mean, there’s persuasion, too.
I think Janet Protasiewicz did a very good job, like, in her messaging. And she seemed, you know, just like the most, like, Siri, show me a mom from Wisconsin kind of picture. But like, they mobilized, you know. And I think that that result was a huge wake-up call for conservatives in Wisconsin who were like, this used to be the thing that we had. We had our focus on the courts. And I do think the switch of Roe means a huge amount in that. I mean, I think that plays a huge part.
But like, courts are also everywhere. And you know, you’ve had more emphasis from this Democratic president and the Democratic Senate than we’ve seen in the past. They’ve been much better about moving nominees through. Partly, that has to do with Senate rules, but partly I think, also, there’s emphasis. Like, all this stuff —
Kate Shaw: Yeah.
Chris Hayes: — to your point, you know, it’s like trying to get a jar open. Like, the force doesn’t necessarily pay the dividends right away. But eventually, like, it does, or you have to believe that or you really lose your mind.
Kate Shaw: And you know, can I say (ph), there was a really nice op-ed in “The Times” that Greer Donley, and Rachel Rebouche, and David Cohen had a few weeks ago on the anniversary of Dobbs, which is just a reminder that, you know, they got to Dobbs through a 50-year effort to overturn —
Chris Hayes: Yeah.
Kate Shaw: — Roe. And opinions of the Supreme Court can be overturned in both directions. And so —
Chris Hayes: Yep.
Kate Shaw: — overturning Dobbs cannot be the entirety of the court reform agenda by any means. But reminding everyone that, you know, this is a long-term effort, both with respect to individual decisions but also with respect to the court institutionally, I think is actually critical because, you know, as you know and you’re obviously thinking and writing about all the time now, Chris, like, attention spans are short, news cycles move fast. Like, it can be particularly —
Chris Hayes: Yeah.
Kate Shaw: — you know, June now ebbs into July and the Supreme Court is, like, no longer front of mind and people can move on. But it’s really important for this to be a topic of sustained focus and attention.
Chris Hayes: Yeah, my historical press (ph) analog, I think, about abortion, the hopeful one I have, is prohibition because they worked at it for 100 years. 100 years, there were temperance movements and temperance groups, and they went state by state by state and they finally got their way, and they amended the Constitution. And like, within two decades, it was like absolutely not. And it was rolled back in a tiny fraction of the time they worked to get it because it was such a catastrophic success in that way because the policy was so unworkable.
And then that removed it. I mean, temperance and alcohol were defining political debates for a century of American life until those folks won. And the only thing that removed it from debate in American life was that they won this catastrophic victory that demonstrated the unworkability of their idea. So, that’s like my hopeful way of thinking about abortion rights in this country, although we’ll see.
Final question, is there a case next year or this next term that you are most looking at? It seems like the gun domestic violence one is the biggest one, but is there anything particularly that (ph) —
Melissa Murray: I think there will likely be a cert petition around Thomas Jefferson High School, which is a —
Chris Hayes: Oh.
Melissa Murray: — selective high school.
Chris Hayes: Yes.
Melissa Murray: I think it’s a harbinger of, like, what the post-Students for Fair Admissions landscape is going to look like. Thomas Jefferson High School has been one of the top-performing high schools in Virginia. It’s a selective school. They send their kids on to the University of Virginia, for example, as well as other top schools.
And in recent years, they changed their admissions policy in order to address a lack of diversity among the student body. And so, one of the things that they did was that they adopted some of the measures that a lot of states have adopted in the post-affirmative action landscape.
So, you know, like Texas, for example, they implemented —
Chris Hayes: Yup.
Melissa Murray: — something like a top 10 percentage plan where they called the best students from a range of schools across various ZIP Codes. And so, you know, those students would have a preference, for example, in getting into Thomas Jefferson. And so, they’re ostensibly race-neutral criteria, but they’re done for the purpose of cultivating a diverse student body.
And I think what we’re getting in, I think, what is happening in the litigation is the sense that there are those who argue that it’s not just a question of race consciousness in the means, but also a question of race consciousness in the ends. If there are any sort of interests in cultivating a diverse student body or a racially diverse student body as the output, then it doesn’t matter how race neutral the means are. It’s just presumptively unconstitutional.
And this will be a petition before the court and I think whether or not they take it, I think they’re certainly four people who’d be excited to take it.
Chris Hayes: Yeah.
Melissa Murray: But (ph) it will have real consequences in lots of places, including —
Chris Hayes: Yeah.
Melissa Murray: — in New York City where the question of selective schools —
Chris Hayes: Lots of places, yeah.
Melissa Murray: — has been such a dominant question in the local market.
Kate Shaw: A couple of big administrative law cases, one called Loper Bright Enterprises, which is about the future of the Chevron doctrine, which for 30 years has told courts to basically defer to agencies if they’re interpreting statutes. And as we’ve just been talking about, there’s tons of statutes, Congress writes (ph), give agencies lots of power. And this could be the end of this era in which the rule, which has been, you know, basically sort of only honored in the breach in recent years anyway but could formally be overruled this term. That’s the question in the cert petition.
And another administrative law case called Jarkesy with a bunch of different independent challenges to various aspects of the administrative state. So, it could be very, very big. And these are always challenging cases to get people interested in, but they matter so much.
Leah Litman: Yeah. Another admin one is about whether the funding structure for the CFPB is constitutional.
Chris Hayes: Right.
Leah Litman: Melissa mentioned a case that could make its way to the Supreme Court in the Thomas Jefferson one. It’s possible the mifepristone case could go back to the Supreme Court at some point next year.
Chris Hayes: I mean —
Leah Litman: And a case that’s already on the court’s docket is about tester standing. You know, like Chevron, this sounds kind of wonky and technical, but it is basically how a bunch of our foundational civil rights statutes are enforced because testers go out and try to determine whether, let’s say, landlords are refusing to rent to some people but not others. And you can only establish those violations if you have testers actually going out to see. Are you —
Chris Hayes: Right. Right.
Leah Litman: — renting to some people but not others? And the court might say you don’t have standing to sue to enforce the statute in those circumstances, which could really, again, gut the enforcement of major civil rights statutes. So, a bunch of things are on the docket.
Chris Hayes: What they should do is they should say they’re going to be a landlord.
(LAUGHTER)
And going to maybe rent to people —
Melissa Murray (ph): Maybe.
Chris Hayes: — in the future and they just need to know what the ground rules are going to be from the court if it could happen.
Leah Litman: They should have a website submission, right? And then —
Chris Hayes: Yeah, that’s right.
Leah Litman: — they would have standing (ph).
(LAUGHTER)
Chris Hayes: Right.
Leah Litman: So, it’ll all be good.
Chris Hayes: “Strict Scrutiny” comes out weekly, well, weekly and then more when things are going crazy on the court. It can be found wherever you get your podcasts. It is produced by the folks over at Crooked Media. The hosts are my fantastic guests today, Melissa Murray, who’s at NYU Law School; Leah Litman, who’s at University of Michigan; and the love of my life, Kate Shaw, who is at Cardozo. And we’re apart for this week, so this was wonderful. We got a little bit of (ph) —
Kate Shaw: This is the most face time we’ve gotten this week, Chris. This has been really fun.
Chris Hayes: It’s the most face time. This is great.
Melissa Murray: Are you not going to say that you’re separated and send the entire podverse into a frenzy?
(LAUGHTER)
Chris Hayes: Oh my God.
Kate Shaw: We are in different states at the moment.
Melissa Murray: They told us they had separated —
Kate Shaw: But —
Melissa Murray: — this week and we were like, whoa, that’s the (ph) —
Kate Shaw: — we are still in the state —
Melissa Murray: — way to drop a bomb.
Kate Shaw: — of conjugal bliss.
(LAUGHTER)
Chris Hayes: Yes, for always. Thank you, guys. That was awesome.
Kate Shaw: Thank you so much.
Leah Litman: Thank you.
Melissa Murray: Thank you.
Chris Hayes: Once again, great thanks to the fantastic “Strict Scrutiny” crew, Melissa Murray; Leah Litman; and, the love of my life, Kate Shaw. It’s always so great to talk to them. Their podcast really is incredible, and I suggest you check it out.
It is that time of year when we usually do a summer mailbag episode. As I said before, talking to you, hearing from you is one of our favorite things. We’d love to know what’s on your mind. So, send us your questions, your thoughts, your feedback, things you like, things you didn’t like. Send it to WITHPod@gmail.com, we’ll try to answer as many as we can, or tweet us with the hashtag #WITHPod.
As always, you can follow us on TikTok by searching for WITHPod, and you can find me now on Threads, @chrislhayes. Oh, too much.
“Why Is This Happening?” is presented by MSNBC and NBC News, produced by Doni Holloway and Brendan O’Melia, engineered by Bob Mallory, and featuring music by Eddie Cooper. You can see more of our work, including links to things we mentioned here, by going to nbcnews.com/whyisthishappening.
“Why Is This Happening?” is presented by MSNBC and NBC News, produced by Doni Holloway and Brendan O’Melia, engineered by Bob Mallory and featuring music by Eddie Cooper. You can see more of our work, including links to things we mentioned here by going to NBCNews.com/whyisthishappening?