CHUCK TODD:
This Sunday, crisis in the Court. Trust in the Supreme Court has been declining for years and is now at a record-low after the overturning of Roe v. Wade, a stunning reversal ending 50 years of precedent. How much confidence do you have in this Supreme Court?
VICE PRES. KAMALA HARRIS:
I think this is an activist court.
FORMER PRES. DONALD TRUMP:
Getting rid of Roe v. Wade was an incredible thing for pro-life.
CHIEF JUSTICE ROBERTS:
Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the Court.
CHUCK TODD:
Is the U.S. Senate confirmation process to blame for polarizing the entire judicial branch?
SEN. LINDSEY GRAHAM:
What you want to do is destroy this guy’s life, hold this seat open and hope you win in 2020.
SEN. ELIZABETH WARREN:
Donald Trump, Mitch McConnell and their Republican buddies are shoving aside the wishes of the American people in order to steal this Supreme Court seat.
CHUCK TODD:
Is the Court now out of sync with the American public?
SEN. CHRIS MURPHY:
A Court that’s already pretty illegitimate is going to be in full crisis mode.
CHUCK TODD:
And now new questions of ethical standards. Have the justices damaged the Court's reputation further by failing to disclose financial relationships and gifts from wealthy donors?
SEN. THOM TILLIS:
The perception of the American people is important to me.
SEN. DICK DURBIN:
The highest court in the land should not have the lowest ethical standards.
CHUCK TODD:
My guests this morning: Former Republican Senator Roy Blunt of Missouri, Democratic Senator Sheldon White House of Rhode Island. I'll also speak with two former Supreme Court clerks, Andrew Crespo and Jennifer Mascott. And a special panel of reporters who cover the Court: NBC News Senior Legal Correspondent Laura Jarrett NPR Legal Affairs Correspondent Nina Totenberg CNN Senior Supreme Court Analyst Joan Biskupic and Dahlia Lithwick, Senior Legal Correspondent for Slate. Welcome to Sunday and a special edition of Meet the Press.
ANNOUNCER:
From NBC News in Washington, the longest-running show in television history, this is a special edition of Meet the Press with Chuck Todd.
CHUCK TODD:
Good Sunday morning. And while official Washington is still consumed by the debt ceiling talks, we’re going to take a step back this Sunday and look at a larger issue: The Supreme Court. It's never been more powerful in our lives or more broken when it comes to public trust. Just a quarter of Americans have a "great deal" or "quite a lot" of confidence in this court, a 50 year low. In the eyes of the American public, the justices’ robes, they’re no longer black; they're red and blue. And the political destruction of the Court lies at the feet of another institution — the United States Senate. It has broken the judiciary and the Supreme Court. The role of the Senate in confirming federal judges, including Supreme Court justices, is technically, of course "advise and consent." And between 1789 and 1965, more than half of the nominees that went to Senate confirmation votes, 65 of 110, were confirmed on voice votes, i.e. “the ayes have it.” Just three justices in that period were confirmed with a margin of fewer than 10 votes. But since 1965, of the 22 successful nominees of the Court, six were confirmed with less than 60 votes. All six of them are currently sitting on this current Court — a nod to polarization. Of the six Republican-appointed justices on the Court, just one, John Roberts, a Bush-appointee, was confirmed with more than 60 votes. All six, by the way, were members of the Federalist Society, which is now the gatekeeper for Republican-appointed nominees. You cannot be nominated for any judgeship if you are not a member of this institution. The goal: to get justices on the Court, and judges on the bench, who are as conservative as possible. They’re not looking for umpires. The legitimacy of the Supreme Court depends on a public belief that justices, though, are impartial referees in the political battles that break out between the branches of government or ideologists — left and right. Just listen to what Chief Justice John Roberts promised during his confirmation hearing and what Clarence Thomas said the day after Bush v. Gore was decided:
[START TAPE]
JUDGE JOHN ROBERTS:
It's my job to call balls and strikes, and not to pitch or bat.
SUPREME COURT JUSTICE CLARENCE THOMAS:
Whatever you do, don't try to apply the rules of the political world to this institution. They do not apply.
[END TAPE]
CHUCK TODD:
But those are soundbites from another era, aren’t they? Now neither party wants a referee calling balls and strikes, or even to pretend that's the goal. Both parties want an activist judiciary in what has become a race to the bottom. Since the Bork nomination in the ‘80s, every move has been a tit for tat and each party has rationalized its escalation in the judicial wars by claiming the other side did it first. Here's a stunning fact: the last time a Republican-controlled United States Senate confirmed a Democratic president's Supreme Court nominee? Grover Cleveland administration, nearly 130 years ago. In 2013, pushed by the obstruction of Obama's nominees to the federal courts in that moment, as well as the executive branch, Democratic Senate Majority Leader Harry Reid decided to “go nuclear,” in his words, ending the filibuster, the 60 vote requirement, for judicial nominees below the Supreme Court:
[START TAPE]
REPORTER:
Aren't you worried Republicans will just get rid of the filibuster on the Supreme Court anyway?
SEN. HARRY REID:
Let ‘em do it. Why in the world would we care? We were trying to protect everybody. I mean, they want a simple majority? Fine. I mean, all these threats about, we're going to change the rules more. What is the choice? Continue like we are or have democracy?
[END TAPE]
CHUCK TODD:
Well, Democrats did learn to care. President Donald Trump worked with Senate Republican Leader Mitch McConnell to reshape the federal judiciary, appointing 54 federal appellate judges in four years, just one short of the 55 appointed in eight years. In February of 2016, less than two hours after the death of Justice Antonin Scalia, nine months before the election, 11 months before the end of Obama’s term, McConnell made it clear that he would not even confirm a replacement before a new president had taken office. Republican-controlled Senate went further and even refused to have a hearing on Merrick Garland, Obama's nominee for that seat.
[START TAPE]
SEN. MITCH McCONNELL:
One of my proudest moments was when I looked at Barack Obama in the eye and I said, “Mr. President, you will not fill this Supreme Court vacancy.”
[END TAPE]
CHUCK TODD:
And in 2017, when Democrats filibustered Trump-nominee Neil Gorsuch for that Scalia seat, McConnell went further and he ended the filibuster for Supreme Court nominees as well, so changing the rules and allowing now one party to muscle through its nominees on all levels of the judiciary, and able to reshape all the justices into partisan actors. And of course, paving the way for Trump to put three justices on the Supreme Court, the most by any one-term President since Herbert Hoover. Now, unhappy with the ideological make-up of this Court, some Democrats are arguing to change the rules again by expanding the number of justices on the Court, or so-called court-packing. The political destruction of the Court has created opportunities for ethical failures as well - the justices have little accountability because their own partisans protect them, as in the case of Clarence Thomas. And as long as 50 votes is the threshold, more presidential candidates are comfortable dropping the pretense that justices should be impartial referees, calling balls and strikes.
[START TAPE]
GOV. RON DeSANTIS:
If you replace a Clarence Thomas with somebody like a Roberts or somebody like that, then you're going to actually see the Court move to the left. And you can't do that.
[END TAPE]
CHUCK TODD:
And joining me now is Democratic Senator Sheldon Whitehouse, who chairs the Judiciary Committee's subcommittee on the Federal Courts. Senator Whitehouse, welcome back to Meet the Press.
SEN. SHELDON WHITEHOUSE:
Thank you.
CHUCK TODD:
I want to start with – Let me go back to 2013. You voted for, you praised Harry Reid's decision at the time to end the filibuster for the lower courts. It was – I, I say this, I get it at the time, but looking back, considering where we are with the 50-vote threshold, is that, is that good governance?
SEN. SHELDON WHITEHOUSE:
I think it would be better for the country if the Supreme Court and the nominations process had not been so heavily politicized, and we were operating under what more looks like a regular order. But we saw back then that there was no amount of persuasion that could convince Republicans to vote for D.C. circuit Democratic nominees. And that's why Harry had to do what he had to do, with the clear understanding – the clear bipartisan understanding at the time that this would not move the Supreme Court. We carved out the Supreme Court on purpose. It was one of the reassurances that the Republicans wanted. So when Mitch McConnell then broke through that, that was a second problem.
CHUCK TODD:
You know how this goes, and I – is that each side blames the other for the escalation. And I can sit here and rationalize like, "Yeah, okay, no, it starts here. It starts here." How do we deescalate this? Because it does feel like this – what we, what we have now is judicial activists. All – most people think the courts are red and blue robes. There are no more black robes. So we've created this. How do we deescalate from this? Because somebody has to be willing to say, "Hey, this is – this shouldn’t – this doesn't work."
SEN. SHELDON WHITEHOUSE:
It is not going to be easy. The work that we're doing on ethics in the Court ought to be easy. And yet it's not. It's partisan also. So I think that the first step is going to be for the judicial conference, the other judges, to put some constraints around the Supreme Court's behavior and treat the Supreme Court the way all other federal judges are treated. And that happens inside the judiciary. So it doesn't get into the –
CHUCK TODD:
The Chief Justice has to make this decision, though, right? Separation of powers, whether – I mean, it's pretty established Congress can't make a law that does that, right?
SEN. SHELDON WHITEHOUSE:
No, it absolutely can.
CHUCK TODD:
Well, it doesn't mean it's constitutional.
SEN. SHELDON WHITEHOUSE:
Yes, it does. It means it's constitutional because the laws that we're talking about right now are actually laws passed by Congress. The ethics reporting law that is at the heart of the Clarence Thomas ethics reporting scandal is a law passed by Congress.
CHUCK TODD:
I understand that. But in the executive branch, what cabinet secretaries have to do, the president and the vice president don't have to do, due to separation of powers. So with – on the executive branch –
SEN. SHELDON WHITEHOUSE:
That's an argument that has been made on behalf of the president. I'm not sure that that actually stands –
CHUCK TODD:
Well, but –
SEN. SHELDON WHITEHOUSE:
– but certainly we can do the administrative side of judicial. You can't get into cases. I'll be the first one to concede, if there's a case in the judicial branch of government, we in the Congress have nothing to say about it. But in terms of administering how the internal ethics of the judicial branch are done – heck, the judicial conference which does that is a creation of Congress.
CHUCK TODD:
Is there something you can do in the – it seems like the separation of powers issue would be taken off the table if you had a – if you had some ethics demands and disclosure demands during the confirmation process that were over and above this. Is there a way to do that? Is there a way to do this on the front end that sort of erases any constitutional question?
SEN. SHELDON WHITEHOUSE:
No, because if you try to do it on the front end and get a pledge of some sort in the confirmation process, well, we saw how the pledges on Roe v. Wade went in the confirmation process. And then second, you get onto the Court, and there you are, and there's no process for determining what the facts are. That's part of the problem here. When Justice Thomas failed to recuse himself from the January 6th investigation that turned up his wife's communications, he made the case that that was okay because he had no idea that she was involved in insurrection activities. That is a question of fact. That's something that could have, and should have, been determined by a neutral examination, and then we'd all know. And so the problem with the Supreme Court is that they're in a fact-free zone as well as an ethics-free zone.
CHUCK TODD:
You have spent a lot of time focused on the Federalist Society. And sort of – you don’t, you don't call this a “conservative court,” you call it a “captured court.” That's a strong charge. I mean, you basically said that this court is bought and paid for by the Federalist Society. That's a strong charge. What – how do you – how do you defend it?
SEN. SHELDON WHITEHOUSE:
Well, first of all, I don't think the Federalist Society was exactly the institution that did this. If you go down the hall from the Federalist Society, you see the Judicial Crisis Network, which is the group that put up the ads for these judges. Leonard Leo, who is a common operative between the two, runs another dozen or so front groups. And the whole thing together has been estimated to be about a $580-million-spend by a bunch of right-wing billionaires. So in the same sense that in the old days railroad barons used to capture the railroad commissions that would do the decisions, I think there's a very strong case to be made that that is exactly what has happened to the Court right now.
CHUCK TODD:
You have said there – you have gone down this issue of dark money.
SEN. SHELDON WHITEHOUSE:
Yeah.
And you – and there's no doubt that this is a big part of this. But now the left is using dark money. And you yourself said, I think I had the quote up when you were saying it earlier –
SEN. SHELDON WHITEHOUSE:
Yeah, no, we knew.
CHUCK TODD:
You yourself said that you don't want to tie your hands behind your back. So this gets at that whole issue. So, “Yes, progressive groups receive anonymous donations because Democrats have to play by the rules Republicans set, or else we unilaterally disarm. We came late to the game, but now we're there.”
SEN. SHELDON WHITEHOUSE:
Here's the difference –
CHUCK TODD:
The problem with this, you see where this goes. We just – I take your point, except you know where this heads. It just escalates, escalates and escalates.
SEN. SHELDON WHITEHOUSE:
Unless we change the law so that dark money is no longer accepted.
CHUCK TODD:
To be fully transparent everywhere.
SEN. SHELDON WHITEHOUSE:
Absolutely. And Democrats, to a person, vote for that every time we bring it up. Republicans, to a person, oppose it every time because I think they're very dependent on dark money. And more to the point, I think this operation that has surrounded the Court – Judicial Crisis Network, funded by dark money. Federalist Society, funded by dark money. The groups that come in, the little flotillas of amicus curiae to file briefs, funded by dark money. There is a shadow of dark money influence around the Court that is very unhealthy for the institution.
CHUCK TODD:
Let me close this to where we began, which is how do we restore some faith in the institution? Because there is some court reformers on the left, let me play what Ed Markey and others would like to see happen to the Court.
[START TAPE]
SEN. ED MARKEY:
So let's start with undoing the Republicans' thievery and adding four seats to the Court. Congress can do it by passing the Judiciary Act. Expanding the Court is constitutional. Congress has done it before and Congress must do it again now.
[END TAPE]
CHUCK TODD:
So there's various ideas. There's expanding the Court; there's age limits.
SEN. SHELDON WHITEHOUSE:
Term – term limits, also.
CHUCK TODD:
Where, where are you? What's reasonable and, and what's doable? And, and I – putting four seats on the Court feels like a pie in the sky.
SEN. SHELDON WHITEHOUSE:
I have a term limits bill, so I'm obviously for that. There's an enormous amount of transparency and ethics work that can be done. I have a bill that would do that.
CHUCK TODD:
What would the term limits be? Twenty-five years?
SEN. SHELDON WHITEHOUSE:
Eighteen years.
CHUCK TODD:
Oh, okay.
SEN. SHELDON WHITEHOUSE:
And ultimately, I think, in, in real life and in real time what's going to make a difference here is going to be the other federal judges on the Judicial Conference, as they did recently with respect to the Scalia personal invitation hospitality scheme he was running, shutting it down and telling the Chief Justice who presides over the Judicial Conference, "Look, you've had your fun. We know what you're doing isn't right. Let's clean this up for once and for all. Let's do this ourselves."
CHUCK TODD:
Bottom line, do you trust our federal court system right now to be fair and impartial?
SEN. SHELDON WHITEHOUSE:
Usually, I think the trial courts are very strong. I think over and over again we've seen honest courtrooms make amazing differences with Dominion vs. Fox, with the folks at – the parents at Sandy Hook against the creep who was pretending that their childrens’ murder wasn't real. And now recently with the judgment against Donald Trump. So honest courtrooms are really important to cut through to the truth. When you get to the Supreme Court, if it's an interest in which the big right-wing billionaires are concerned, very hard to count on getting a fair shot.
CHUCK TODD:
So you think sometimes you can get a fair shot in the Court, but not if it's on something that donors want?
SEN. SHELDON WHITEHOUSE:
That would be what the evidence suggests. I think the statistics are pretty stunning at how often the judges who came out of the Federalist Society do what they're told by the amicus groups that come in on behalf of the right wing.
CHUCK TODD:
Senator Sheldon Whitehouse, Democrat from Rhode Island. Like I said, this has been an issue you've been working on for years. Thanks for coming in and sharing your perspective.
SEN. SHELDON WHITEHOUSE:
Good to be with you.
CHUCK TODD:
Thank you, sir.
CHUCK TODD:
And joining me now is a long-time veteran of Washington, D.C., former Republican Senator Roy Blunt of Missouri. He was a member of leadership during his time in the House and Senate, by the way. In the Senate, he led the Republican Policy Committee. Senator Blunt, welcome back to Meet the Press.
FMR. SEN. ROY BLUNT:
Chuck, great to be with you.
CHUCK TODD:
Let me start with a conversation you and I had ten years ago after Harry Reid changed the rules on judicial confirmations the first time. Take a listen.
[START TAPE]
FMR. SEN. ROY BLUNT:
They decided to change the rules. I suspect that changes the Senate in fundamental ways forever. The Senate in our system was the example to the world that there was a way in a democracy to protect minority rights. To a great extent, that's now lost on these nominations.
[END TAPE]
CHUCK TODD:
Why when Republicans got control of the Senate next did they not restore minority rights? Why, why did Republicans go a step further and get rid of the filibuster for Supreme Court justices as well?
FMR. SEN. ROY BLUNT:
Yeah. Well, I think, I think my prediction was exactly right. Once these things happen, it’s – I can't think of an example where they're rolled back. And I think that week Senator McConnell said to Senator Reid on the floor, "You're going to be sorry you did this, and you may be sorry you did this sooner than you think." And that's, that’s exactly what happened. I, I just – there's almost no instances where you could change the rules in one way and hope –
CHUCK TODD:
Why not?
FMR. SEN. ROY BLUNT:
– that the next Senate will say, "Oh, now it's up to us."
CHUCK TODD:
Well, let's speak of a momentary advantage, the Garland decision. The decision not to give Garland a committee hearing. You were in the Senate then. This is not necessarily your decision, Mitch McConnell's in leadership to do that. In hindsight, was that the right call?
FMR. SEN. ROY BLUNT:
You know, I think so. Again, and you've already made this point today, it's all, "Well, they started it." But in both –
CHUCK TODD:
As you said to me earlier –
FMR. SEN. ROY BLUNT:
– Senator Schumer –
CHUCK TODD:
– it's always them, right? It's always them.
FMR. SEN. ROY BLUNT:
It's always them. It's always them. Senator Schumer and Senator Biden both at different times in the Bush administrations had said the year before the election, "If there's a vacancy, we won't fill it." And there wasn't even a vacancy. This was just kind of a preemptive shot to let that happen. And even if we weren't going to approve Garland, and you could argue maybe we should have had a hearing, I, I think the way these hearings go, that would in many ways have been unfair to him to put him through a hearing, to know – to not be approved. I actually supported the majority leader's decision at the time and still think in the politics of the country and the way these confirmations have happened, when you have the majority and the president's from the other party, there's just a long history of not filling an election year vacancy.
CHUCK TODD:
Yeah, but they – does it – don't you look at the Amy Coney Barrett thing? I mean, it looked like it was rammed through at the last minute, right? It was exactly – let’s, let's take Joe Biden at his word of what he was worried about back then. That was exactly the, the picture that I don't think anybody was comfortable with. We're in the midst of a presidential election. You throw that in there, we're, you know, depending on the – depending on, on when somebody might pass away, depends on, on how that works. Given what happened with Garland, do you see how so many people look at that and think, "Come on. The rule's for thee, but not for me?”
FMR. SEN. ROY BLUNT:
Well, I will say in, in that year, I had more people at the airport and other places mention that, that single thing to me than I've ever had of any other thing. "Why don't you give Garland a hearing?" And I think I probably gave them the same answer I just gave you. “He won't be confirmed. Having a hearing would be a mistake for him and for the country.” But I, I get it. Now, the difference, of course, the next year before a presidential change is that the president's party has the majority. And that's a different circumstance in a substantial way. If you don't do that, let's say you don't do that, two months before the election, you've always got the sense that your side will just collapse on Election Day because they wonder why they sent you there if you could've done this and didn't. And so that's, that’s a big difference.
CHUCK TODD:
You’re a – you're a student of history. We had to go back. So George H. W. Bush had two Supreme Court justices confirmed by Democratic Senates. Do you know that the last time a Democratic president had a Republican Senate confirm a Supreme Court nominee?
FMR. SEN. ROY BLUNT:
No, I don't. But I do know –
CHUCK TODD:
It's Grover Cleve –
FMR. SEN. ROY BLUNT:
– the numbers have not worked good.
CHUCK TODD:
Yeah, it's —
FMR. SEN. ROY BLUNT:
Grover Cleveland –
CHUCK TODD:
– Grover Cleveland, Senator. Grover Cleveland. I – this is why I think you have so much distrust between the two parties on this inside the Senate, right?
FMR. SEN. ROY BLUNT:
Well, yes. Yes, Chuck. But you do have to remember that you've got this long period of time from, like, 1932 until the '60s, where there is no Republican – into the '80s, where there's no Republican Senate, so –
CHUCK TODD:
There were sort of two Democratic parties that control –
FMR. SEN. ROY BLUNT:
Yes, that's right –
CHUCK TODD:
– the Senate. I hear you –
FMR. SEN. ROY BLUNT:
The Democrat presidents got a lot of presidents – got a lot of nominees confirmed. But there was no Republican senate to really – I hear your example, but I think it’s – it has –
CHUCK TODD:
Look –
FMR. SEN. ROY BLUNT:
– that one big flaw to it.
CHUCK TODD:
I hear you. But it is an astonishing situation when you think about it. Let me play one more quote from the late Senator John McCain after the 2017 decision on, on Supreme Court filibusters. Take a listen.
[START TAPE]
SEN. JOHN MCCAIN:
Now that we're entering into an era where a simple majority decides all judicial nominations, we will see more and more nominees from the extremes of both left and right. I do not see how that that that will ensure a fair and impartial judiciary.
[END TAPE]
CHUCK TODD:
And it's that last line. Look, I should point out Senator McCain said what he said and also supported Mitch McConnell's decision.
FMR. SEN. ROY BLUNT:Right.
CHUCK TODD:
But is this any way to get an umpire, right? If that is the goal – and look, you didn't vote for Judge Jackson because of judicial philosophy. But should that be the requirement? Are we just looking for qualified umpires, or are you looking for partisans?
FMR. SEN. ROY BLUNT:
Well, I, I – I do think in the last 40 years, the country changed a view on this, and even maybe less than that. You know, the, the, the Thomas confirmation was 50 – 48-52. Nobody even considered the 60 votes structure –
CHUCK TODD:
Democratic Senate –
FMR. SEN. ROY BLUNT:
– as a structure –
CHUCK TODD:
– by the way.
FMR. SEN. ROY BLUNT:
– that was reasonable. A Democratic Senate, 58 – 48-52. The whole idea that it would take 60 to confirm is a reasonably new thing. And, and again, it happened when Chuck Schumer went to the Senate. And suddenly, well, you have to have 60 now instead of 50. There was great deference given generally to presidents until that became a standard. And, and then, you know, I also think if Democrats at the time of the Gorsuch nomination – which replacing Scalia, didn't change the balance of the Court – if they would've produced enough votes to get to 60 for Gorsuch, who knows if the rule would have – if the atmosphere would've – the atmosphere still been there –
CHUCK TODD:
You think it would've helped –
FMR. SEN. ROY BLUNT:
– to change –
CHUCK TODD:
– for Kavanaugh?
FMR. SEN. ROY BLUNT:
– the rule to –
CHUCK TODD:
You really think –
FMR. SEN. ROY BLUNT:
I don't know. I think – I think it would've been harder later in that Congress than it was at that moment. And I even said to a couple of Democrats at the time, "The smartest thing you could do right now is let, let your members who will actually be helped by this not hurt by this –”
CHUCK TODD:
Let me go back –
FMR. SEN. ROY BLUNT:
“– vote for this guy that's perfectly acceptable."
CHUCK TODD:
Yeah. Let me go back to the last question that I asked Senator Whitehouse, and I'm going to ask it to you –
FMR. SEN. ROY BLUNT:
Okay.
FMR. SEN. ROY BLUNT:
– in a different way. Look, we know the Supreme Court's approval ratings essentially have fallen, and fallen badly. How – what would be your recommendation to help the perception of the Court?
FMR. SEN. ROY BLUNT:
Well, I, I certainly think that the Court is still a – is such a critically important part to our structure. The Court does bring finality to things that sometimes I don't agree with, sometimes others don't agree with. But what we don't want to do is to bring the Court down the rest of us.
CHUCK TODD:
Senator Roy Blunt, it's good to see you. Thanks for coming on –
FMR. SEN. ROY BLUNT:
Good to see you.
CHUCK TODD:
– sharing your perspective. And I look forward to seeing you again soon.
FMR. SEN. ROY BLUNT:
You bet.
CHUCK TODD:
When we come back, has the Supreme Court damaged its reputation by having no official ethical standards? I'll talk to two former Supreme Court clerks, Andrew Crespo and Jennifer Mascott.
CHUCK TODD:
Welcome back. It is a tradition for Supreme Court justices with sharply different legal views to be dinner party friends, opera companions, in other words to get along. But after the leak of the Dobbs decision last year, tensions on the Court have broken out into the open. According to reporters, including Nina Totenberg, who will join us later this hour, the atmosphere behind the scenes is so ugly that is one source put it “the place sounds like it's imploding.” Justice Samuel Alito recently told to partisan defenders of the Wall Street Journal, the leak, quote, “made us targets of assassination,” saying “I personally have a pretty good idea who is responsible.” Justice Clarence Thomas complained “you begin to look over your shoulder.” And Justice Sonia Sotomayor said she felt “shell-shocked” after the overturning of Roe and has a quote “sense of despair” about the direction of the court. On Tuesday, Chief Justice John Roberts addressed public questions about the acrimony and concerns about the Court’s ethics while accepting an award.
[START TAPE]
CHIEF JUSTICE JOHN ROBERTS:
I want to assure people that I am committed to making certain that we, as a court, adhere to the highest standards of conduct. We are continuing to look at things we can do to give practical effect to that commitment and I am confident there are ways to do that that are consistent with our status as an independent branch of government under the constitution’s separation of powers.
[END TAPE]
CHUCK TODD:
And joining me now are two former Supreme Court Clerks. Jennifer Mascott an assistant law professor at George Mason University. She clerked for Justice Kavanaugh while he was on the D.C. Circuit and for Justice Thomas on the Supreme Court, and Andrew Crespo is a professor at Harvard Law School. He has clerked for Justices Kagan and Breyer. Jennifer and Andrew, welcome to Meet the Press. Let me start with the leak and how Bush v. Gore Andrew didn't seem to create personal divisions on the Court the way the leak of Dobbs did. What's your sense of what's going on behind the scenes?
ANDREW CRESPO:
You know what, Chuck? We have to remember, there was an investigation into this leak. Right? And I think that investigation – I’m pretty sure it was a 20 page report – told us three pretty important things. First, the report seems to make clear that this leak did not come from a law clerk or a court employee. Right? This is an investigation done by experienced criminal investigators. It was reviewed by the Secretary – former Secretary of Homeland Security, looked at forensic cell phone records and it asked every employee and law clerk who had access to that opinion to swear under oath, exposing themselves to a potential prison term for penalty of perjury that they didn't do – that they were not the leaker, and they didn't know who it was. It basically ruled out Court employees and law clerks. But crucially, and this is, I think, the second really important thing that this investigation highlights for us. The report was not able to rule out whether or not the leak came from the justices themselves because the only people who had access to the opinion and who were not investigated within the, within the leak investigation were the justices, because the Court didn't look at the justices themselves in that investigation. And I think that shows us the really the third most important thing that we learned from this. The leak investigation is one example now, in a string of many, where we're seeing the Supreme Court justices basically view themselves as above the law, not subject to the same rules as everyone else, whether that's the leak investigation, whether it's accepting potentially millions of dollars in gifts without having to disclose it, whether it's refusing to adopt an ethics code, refusing to even engage with Congress on that question. This is a court that tells everyone else what they can and cannot do, tells Congress you can't regulate guns, tells the president you can't do anything about climate change, tells women what they have to do with their own bodies, but says to everyone else, “Don't you dare try and suggest that we have to follow rules for ourselves.”
CHUCK TODD:
Jennifer, what's your sense of what the leak has done to trust between the nine?
JENNIFER MASCOTT:
Well, I have to tell you last year at this time, we were talking right after the leak, and from my standpoint, over the last year, it's actually reconfirmed my faith in the Supreme Court as an institution, because I think here we have nine justices who have taken an incredible amount of attack and vitriol from the outside. We've had assassination attempts, and quite frankly, the Dobbs opinion, when it was handed down, was almost precisely the same as it was when the leak was made. And that –
CHUCK TODD:
Why does that matter?
JENNIFER MASCOTT:
Well, I think because it shows that the justices have fidelity to the principle. That they didn't let the attacks, the threats of the attempt to change the outcome have any impact at all –
CHUCK TODD:
So had it changed –
JENNIFER MASCOTT:
– from them doing their job.
CHUCK TODD:
– had the ruling had been different from the leak, you think this would have been a far more explosive thing inside the institution?
JENNIFER MASCOTT:
Well, I think clearly that would have depended what the change was. Obviously, if there had been a vote change of some kind that would have certainly communicated that those kinds of tactics work. But I think it's really astounding that it’s the jjustices who are facing the attacks from the outside and here, you know, we are questioning the institution. The institution’s strong. They're continuing to do their jobs. Just this week, as the clip you played shows, Chief Justice Roberts and Justice Kagan were together, with Justice Roberts receiving an award, talking about the collegiality of the institution, despite all of the buffeting on the outside that’s continuing to go on.
CHUCK TODD:
Let me talk about ethics, when you guys are brought in as clerks, do you sign anything? Is there an eth – What – is there a bat? What, what do you pledge? Is there anything you've put into writing pledging some sort of fidelity to the Court?
JENNIFER MASCOTT:
Well, nobody's asking anybody to pledge fidelity, I don't think, that any institution. I think all law clerks, just like government employees across the board, are trying to be hired. We want people of integrity who are there to serve the institution and the principle of the law and the Constitution. And so like all federal officials, clerks, obviously, are supposed to take an oath to uphold the Constitution and try to do that and serve the jjustices as they apply principles of law.
CHUCK TODD:
But is there any look – is there anything about your personal financial situation and –
ANDREW CRESPO:
A background check?
CHUCK TODD:
Yeah, at least is there a background check –
ANDREW CRESPO:
No, there like back when I was there, this was, you know, 10 years ago or so now. I don't remember having to sign anything. But I do remember very early in the year the chief justice – I didn't clerk for the chief justice – but the chief justice would get all of the law clerks, 30 plus of us, into a room. And it was the ethics talk. And it was almost entirely “Don't talk outside of this building about what happens in this building.” This was well before Dobbs, it was really impressed on law clerks –
CHUCK TODD:
Are you violating this right now?
ANDREW CRESPO:
No, I don't think so. I think the chief has made clear that he wants that – you know that that was something impressed upon law clerks. You're not supposed to talk outside of the Court about the opinions and work of the Court. So there wasn't like a, as I recall, a signing, but it was very much impressed on law clerks that you're not supposed to disclose what happens inside the building then, or ever.
CHUCK TODD:
Do – Jennifer, do you remember political debates?
JENNIFER MASCOTT:
Political debates within – ?
Chuck Todd
– within the institution. Not legal debates, not constitutional debates, but just good old fashioned political debates?
JENNIFER MASCOTT:
To be honest, not really that much. I mean, I feel, I feel like there was a striking amount of collegiality. And actually, if you look at the most recent terms, the last 10 terms of the court, I think, there were at least 40% or more of the merits-based decisions that are issued unanimously. So a lot of times on the outside, we talk about the handful of decisions that seem to be, quote unquote, “political” or “controversial,” but the Court has got really challenging issues coming to it. A lot of times they're issues that are not necessarily the topic of dinnertime conversation. And I really love the opportunity to be able to meet clerks from across the spectrum and still keep up with many of them today in my practice as a law professor.
CHUCK TODD:
Let me move to the issue of what's deemed the “shadow docket,” and maybe you guys can explain this. Let me put up a statistic up here. And this is about sort of administration – when, when the Department of Justice on behalf of an executive branch is looking for emergency relief. During the, the eight – the four terms of Bush and Obama, eight times the Supreme Court was asked for emergency relief. In the one term of Donald Trump, 41 times. It appears that this is no longer emergency relief. This is political disputes. And we never know what the rationale is. Is this gotten overused, Andrew?
ANDREW CRESPO:
I think we're seeing a greater sort of frequency of folks turning to the judiciary, and one of the biggest challenges now is that parties can pick their judges in the lower courts, right? You can file a lawsuit in Texas, pick the location where you're going to file the lawsuit, and there will be one judge who's going to hear that case. And you know the political party who appointed that judge, and you know the political valence of that judge. When you see parties rushing to the judiciary, getting to pick the lower court judges, it’s an accelerant that forces everything up faster to the Supreme Court. And it’s making the Supreme Court, which is now a very conservative court, basically sitting in the driver's seat on all of these issues as they get shot up to the Court and is using that shadow docket to act faster on these issues.
CHUCK TODD:
And Jennifer, one of the complaints is that we don't know the rationale behind it. It's what – look, we can have a debate whether these should be ruled on, but then, then we don't even get a rationale. How do we change that?
JENNIFER MASCOTT:
Well, I think to Andrew's point, it is true that the Court is responding to these cases as they find them. And so it's often the lower courts or outside parties that are bringing these cases to the Court’s emergency docket. One, I mean, obviously unique circumstance in the Trump administration was the pandemic and so that caused a lot of state orders that were not necessarily happening as rapidly in years previous to that, and so that increased the use of the orders docket. But I think the Court has been attentive to people wanting to understand its reasoning. And so some of these cases actually have resulted in written decisions, perhaps not as lengthy as the merits ones. In fact, there have even been oral arguments issued more rapidly, sometimes in cases when the courts wanted to rule on issues of big importance. So I think the Court is trying to issue its reasoning for the American public, and quite frankly, in some ways, is one of the most transparent institutions in the sense that, at least with the merits cases, we're getting dozens and dozens of pages –
CHUCK TODD:
As a reporter –
JENNIFER MASOCTT:
– lengthy reasoning from justices.
CHUCK TODD:
– looking for transparency, that is no transparent institution. But I understand within the legal community your argument there. Jennifer Mascott, Andrew Crespo, thank you both for being on here. Appreciate it.
JENNIFER MASCOTT:
Thank you for having us.
CHUCK TODD:
Up next, the public now sees the Court as more partisan. Is the Court actually behaving that way? Data Download is next.
CHUCK TODD:
Welcome back, Data Download time. As we discuss the Supreme Court’s evolution, particularly how its standing among the public has deteriorated, as they perceive it to be more and more partisan, we’re here to provide a reality check on exactly what is driving this shift. There’s one simple way to describe this, and that’s just simply the number of appointments. Since LBJ, Republican presidents have been in office for 32 years and have gotten 16 Supreme Court justices. Democratic presidents have been in office 22 years and have only gotten five justices. Some of that is actuary tables -- you have the -- Jimmy Carter, who served four years, got zero appointments. George H. W. Bush served for four years, got two. Donald Trump, four years, got three. So, you see how that happens. Now let’s look at the views, the polling views, of whether this Court is too liberal or too conservative. Going back to the start of the century, as you can see here, it has fluctuated between too liberal and too conservative, narrowly. You know, during the Bush years and the War on Terror, it was seen as too conservative. During the Obama years, Obama Care ruling, same sex marriage, it was seen as too liberal. But look at this -- it has skyrocketed now. Forty-two percent currently think it is too conservative and, in fact, what makes that number unique -- it’s above the -- there’s a third punch we ask here: Is the Court too liberal, too conservative, or about right -- about right led throughout the entire century, until these last couple of years. Now, let’s move to the issue of whether they’re right about this -- is the public right? Has the Court shifted its views to the right? Well, the National Academy of Sciences sort of compared key Supreme Court rulings with public opinion for different decades. In 2010, versus where Democrats wanted rulings and Republicans want rulings, the Court basically came down in the middle. In 2020, essentially the same thing. The Court shifted dramatically in 2021, between Ruth Bader Ginsburg dying, Amy Coney Barrett making Brett Kavanaugh the center. And what has happened? Not only has the perception of the Court as too conservative, the rulings are actually not just right of where the average would be between the two parties, but to the right of where even Republicans thought the Court would rule. So, the perception in this case, that it’s too conservative, may play out in reality. When we come back, it was the only Supreme Court case to decide who would win the White House. We’re going to look back at the moment a divided Court ended a disputed election.
CHUCK TODD:
Welcome back, the public crisis of confidence in the Supreme Court didn’t start with its overturning of Roe v. Wade. In 2000, the Court ended the Florida vote recount in the election between George W. Bush and Al Gore, clearing the way to certify Bush's win. The controversial five-four ruling hurt the Court's legitimacy among Democrats and further divided an already fiercely polarized nation. Just five days after that decision, the House Democratic Leader, Dick Gephardt, appeared on this program and refused to call George W. Bush the legitimate next president.
[BEGIN TAPE]
TIM RUSSERT:
The Supreme Court decision, was that based on law or politics?
REP. DICK GEPHARDT:
Well, we have to accept that decision. I criticized the decision. I didn't think it was the right decision. I wish we could've counted all the votes. But the Court made its decision.
TIM RUSSERT:
So George W. Bush is the legitimate 43rd president of the United States?
REP. DICK GEPHARDT:
George W. Bush is the next president of the United States.
TIM RUSSERT:
But, whoa, whoa. But is he legitimate? Is he --
REP. DICK GEPHARDT:
We have -- we have to respect the presidency. We have to respect the law. And we have to work with him to try to solve the people's problems. That's the task in front of us now.
TIM RUSSERT:
But why can't a leading Democrat say he is a legitimate president of the United States?
REP. DICK GEPHARDT:
He is the president of the United States.
[END TAPE]
CHUCK TODD:
When we come back, can the Court fix itself? Our special panel of Court reporters is next.
CHUCK TODD:
Welcome back, panel is here. NBC News senior legal correspondent Laura Jarrett, Nina Totenberg, NPR legal affairs correspondent and author of Dinners with Ruth. Joan Biskupic, CNN senior Supreme Court analyst and author of Nine Black Robes and Dahlia Lithwick, Slate senior legal correspondent and author of Lady Justice. Nina Totenberg, let me start with you. Is the court in crisis?
NINA TOTENBERG:
Well, it's in a very bad and dysfunctional situation, I think. And I've covered the court for a long, long time, and I don't think I've ever seen a court so at odds. And the best example is they had a fairly minor, in the greater scheme of things, decision a couple weeks ago. And there were five opinions. There was no opinion for the Court. There were three opinions on, on one side and two opinions in dissent.
CHUCK TODD:
What does that tell you?
NINA TOTENBERG:
It tells me that they don't like and trust each other. That the china's broken and they're not getting along. And when you can't get along, you can't reach some sort of consensus on most things.
CHUCK TODD:
Laura, what does it look like to you?
LAURA JARRETT:
Well, it's interesting because that's what's going on internally. And what's going on externally is another sort of crisis of its own sort of devising on public legitimacy, and the idea of whether it's an institution that the public can trust and, and feel that the decisions are being made even-handedly. Most recently because of all the ethics issues that have emerged, that, in many ways, are not new, but there is a different level of heightened attention to them now, I think, which is a good thing. But there's no meaningful check on them because they are not treated like all other federal judges.
CHUCK TODD:
Joan, I want to pull something from your book.
JOAN BISKUPIC:
Sure.
CHUCK TODD:
I'm sure you're happy about that.
JOAN BISKUPIC:
Yes, thank you.
CHUCK TODD:
It's about John Roberts. “Some of Chief Justice John Roberts' colleagues were suspicious of his maneuverings and cases, and what they saw as an exalted sense of his authority as Chief justice. He exerted a strong hand on internal operations of the court building and, in various public communications, separated himself from the eight associate justices.” And I highlight this quote because, to go with what Nina said and to go with what Laura said, we have to look to the chief justice. Does he have – if he leads, does he have any followers?
JOAN BISKUPIC:
Well, and that was written capturing a time when he was more in control. When he had –
CHUCK TODD:
This was pre-Barrett.
JOAN BISKUPIC:
Yes, this was pre-Barrett –
CHUCK TODD:
Okay.
JOAN BISKUPIC:
– when he was the key vote. So he could do a lot of maneuvering behind the scenes.
CHUCK TODD:
He was the fulcrum, right?
JOAN BISKUPIC:
That's exactly right.
CHUCK TODD:
He was right there.
JOAN BISKUPIC:
And some of that behavior, frankly, has come back to haunt him because the other justices to his right, now they have Justice Amy Coney Barrett. They don't need him. They don't need him on big important cases like the Dobbs. And they might not respond to him. And I think we've seen they are not responding to him on issues of ethics. So his problem right now is twofold. One has to do – one having to do with consequential opinions, like the Dobbs opinion that rolled back Roe v. Wade, and also what kind of formal ethics policy they will even adopt. He does not have a team with him right now.
CHUCK TODD:
Dahlia, I was actually talking off camera with Jennifer Mascott, and she just sort of implied, she goes – she thought that it is now clear Justice Alito doesn't necessarily follow Justice Roberts' lead anymore. And that in the first few years, he did. That he re – that Clarence Thomas is almost the conservative leader these days. Is that, is that your read?
DAHLIA LITHWICK:
I think there is a block on the Court that is Justice Alito and Thomas, and sometimes Justice Gorsuch, that are very much doing their own thing, that is very separate from what the more centrist block of Roberts and Kavanaugh, and sometimes Barrett are doing. I think that that, to the extent you can call it a centrist block –
CHUCK TODD:
I was just going to say that some people are listening going, "That's a centrist block?"
DAHLIA LITHWICK:
Right. And it's important to say.
CHUCK TODD:
That for the three, three, and three, this kind of is.
DAHLIA LITHWICK:
“Ish.” And it's important to say –
CHUCK TODD:
Yeah, “ish.”
DAHLIA LITHWICK:
To Joan's point, Justice Kavanaugh is now the median justice on the Court. There's no – nothing that will tell you where this Court is more than that statistic. But I think it's interesting that at least sometimes you have the sense that on that center, there are votes in play. I don't think there are votes in play in Justice Alito and Justice Thomas's world.
CHUCK TODD:
So let's talk about this ethics situation. I mean, do we expect, Nina, anything from justice – let me put up these headlines. These are – the perception of the Court is just the – being politicized here with a big donor. We've got these headlines: “Clarence Thomas failed to report his wife's income,” “Clarence Thomas's wife Ginni told the January 6th Committee she didn't discuss the election with her husband” – I don't know what married couple didn't discuss the election, apparently they're the only ones that didn't – “Judicial activists directed fees to Clarence Thomas's wife, urged ‘no mention –.’” What, in theory, could Chief Justice Roberts do to create a better ethical picture of the Court?
NINA TOTENBERG:
Well, part of the problem here is, as Joan said, he doesn't have a team with him. And you don't need to lose much. So let's just say he were to sit down and say, "Look, we've got to do something. Let's do what a lot of the ethics professors say they could do in – in a half of a day. Write a code for ourselves." If two of his members say, "Well, I'm not going to abide by it. I don't know we ought to have that." He doesn't have a Court then.
CHUCK TODD:
He has no recourse.
NINA TOTENBERG:
There's no recourse. It's not even a question of a majority. He has no recourse. And I would argue that the, the kinds of potential conflicts of interest raised by Justice Thomas' friendship with Harlan Crow and his refusal to recuse himself in January 6th matters are materially different from the kinds of potential conflicts that might be raised by, you know, justices, for example, who don't recuse themselves in cases involving publishing companies –
CHUCK TODD:
Sure, right, book deals.
NINA TOTENBERG:
– which they have – where they've written a book. It's just different. It's materially different and it's understandable by the public.
CHUCK TODD:
It does look like this is going to get worse before it gets better and that we're going to have a basically more like the 19th-century Supreme Court, where it's overtly political. I want to play something again that Ron DeSantis said about his philosophy of Supreme Court justices.
[START TAPE]
GOV. RON DESANTIS:
If you replace a Clarence Thomas with somebody like a Roberts or somebody like that, then you're going to actually see the Court move to the left. And you can't do that.
[END TAPE]
CHUCK TODD:
I want to remind viewers, Laura, Justice Roberts said, "I am an umpire. I call balls and strikes." He wants – he does not like to be viewed as a partisan. Potentially the next president of the United States is saying, "Oh no. I'm nominating partisans."
LAURA JARRETT:
But part of what's interesting about that, is he's playing to the crowd, and you didn't hear it there, but after he says all of the things about how he's going to make the Court even further to the right, everybody's applauding. Everybody's enthusiastic about the Court and packing the Court in a way that, I think, would, would be interesting to people who think of it as sort of an apolitical branch. He's playing to an audience that cares deeply about this.
JOAN BISKUPIC:
Well, and look who did it in 2016. And I would argue that Donald Trump won the election in part because Justice Scalia had just died.
CHUCK TODD:
If he'd been alive, I don't know if Trump wins.
JOAN BISKUPIC:
I seriously believe that, Chuck.
CHUCK TODD:
I agree.
JOAN BISKUPIC:
I seriously believe that.
CHUCK TODD:
I'm with you.
JOAN BISKUPIC:
Because remember, he did – Donald Trump did something very unprecedented. In May of 2016, he relisted – released a list of his potential candidates and kept adding to it, adding to it, and then fulfilled that.
CHUCK TODD:
Dahlia, last word?
DAHLIA LITHWICK:
Well, just remember in that same election, we have three octogenarians on the Court and an empty seat for months and months. And we have one side campaigning on the issue that we will pack the Court. And we have Democrats who are saying like, "Screen save. Screen save. Nothing to see here."
CHUCK TODD:
I don't think they'll do that again. Before we go, every Memorial Day weekend, we here at Meet the Press remember the American service members who have died in the line of duty in the past year. This year, we're going to remember 32-year-old Marine Staff Sergeant Samuel D. Lecce, who died from a non-combat-related incident in Iraq. He was from Jefferson, Tennessee. But we'd be remiss if we didn't draw attention to a growing problem, both in our society, which is more acute in our active duty military. Last year alone, at least 328 active duty service members died by suicide. If you or a loved one are struggling with mental health, you can dial 9-8-8 and you can press 1 right now to be connected to the Veterans Crisis Line. You can find a local VA Vet Center to access free counseling. Or you can visit the Military OneSource website to get connected to the best available resources to fit your needs. And spend some time this Memorial Day weekend thinking about those who serve and defend us. That's all for today. Thanks for watching. We'll be back next week, because if it's Sunday, it's Meet the Press.