The future of our courts will be decided in the 2020 election. While the Trump administration grabs headlines with scandal after scandal, gaffe after gaffe, behind the scenes they are quietly chipping away at their central agenda of reshaping the courts. It’s a transformation happening at a historic rate, where one in four circuit judges is now a Trump appointee. They’ve already flipped the balance of the Supreme Court to a 5-4 conservative majority.
If given another four years, Trump would lock down the federal judiciary for decades to come. Senior legal correspondent for Slate Dahlia Lithwick has reported on all of this. From the president’s affinity for using the courts as a weapon to the changed dynamic of the Supreme Court in the wake of Judge Brett Kavanaugh’s confirmation, Lithwick documents what the rule of law looks like in the Trump years. Listen as we discuss exactly what’s at stake this November.
Note: This is a rough transcript — please forgive any typos.
DAHLIA LITHWICK: I don't think that generally I've seen a lot of resistance at the Supreme Court level to the way that this Jeff Sessions and Bill Barr Justice Department have been sort of careening through history trying to break stuff.
CHRIS HAYES: Hello and welcome to “Why Is This Happening?” with me, your host, Chris Hayes.
I just got a chance to see an amazing documentary. I'm hoping we have the directors on at some point. It's called “The Fight,” and it's about the first several years of the Trump administration and the ACLU. It's a dear friend of mine, Elyse Steinberg is one of the filmmakers. She also was one of the filmmakers on “Wiener.”
The film follows a bunch of ACLU lawyers through the first few years of the Trump administration, including early footage of Lee Gelernt, who's their immigration attorney and who's been on this podcast, coming out of the Brooklyn courthouse to get an injunction on the Muslim ban that first weekend it was instituted. In the background of the shot is your humble podcaster, Chris Hayes, who had gone there to report on it. I'm actually calling into MSNBC at that moment.
It's a really great movie. The conceit of the work that they do in the ACLU, and Chase Strangio is another figure in it who's been on this podcast, is that the courts mean something in America. One means of preserving rights for people is struggle through the courts. I think there's been a lot to credit that view in the Trump years, and a lot of things the Trump administration has tried to do that the courts have been like, "No, you can't do this. This doesn't pass muster."
But something worrying has been happening as time has gone on, which is that the further up the chain they've gotten, the more license they've been granted by the courts, including the Supreme Court, which has given them a whole lot of green lights to do a whole lot of terrible stuff. Not only that, the courts are not a static entity. They are a group of judges who are constantly being replaced by the most ambitious pipeline of judicial confirmation basically in the nation's history.
They smashed all kinds of records in terms of the amount of judges they've put on district courts and in appellate courts. They obviously already have two Supreme Court justices that have sort of definitively kind of flipped the balance of the court or at least cemented a five, four conservative majority. If Donald Trump is reelected, they will lock down the federal judiciary for the next 20 years. The Supreme Court, the appellate courts, it's all basically gone.
There is so much horrible wrong that a court can do. I think that there's something that happened to liberals, which is that because of the rights revolution that happens in the Warren court because of decisions like Brown v. Board and Roe v. Wade, I think liberals generally have come to see the courts as favorable as allies in a fight for progress as protectors of minority rights. But that has not been what the federal courts have been throughout history.
The federal courts have been largely a bastion of reaction through most of federal history. I don't think it's an overstatement to say that. I mean, Plessy versus Ferguson is a good example. Korematsu is another. There are tons.
We now arrive at a point where this fundamental question of what the courts are. Are the courts just another political player? Are they just another political entity in the Hobbesian struggle for power that is America in the 21st century in this polarized electorate? Are they something more elevated? Do we lose something if we see them as these kind of political actors? Are we losing the thing that makes them special? Are we doing what Donald Trump does when he calls it an Obama judge? Or are we being realistic about the actual political machinations that produced the court, and the court is a political player?
All of these questions weigh very heavily on my mind, and I wanted to talk about them with someone I've known forever and admired forever. The great writer and podcaster, Dahlia Lithwick. She's senior legal correspondent for Slate. She's hosted a Slate podcast, “Amicus.” As you will see in this conversation, I've known Dahlia for a long time. She knows my wife very well. We end up talking about Kate for like half the podcast.
Dahlia is so fascinating because I think if you've listened to the podcast I've done with Kate, we've done two of them... And I talk about Kate a lot on the podcast, because obviously she's probably more influential I think than any other single person. But Kate really is very clear-eyed about the law, but has a real genuine faith in it that I find inspiring and invigorating. Dahlia I think has reached a little bit more of a crisis of faith, a little more broken about her faith in the courts and the law. So she's an interesting voice to be in dialogue with around these questions.
Because as we go through this election, I just cannot stress enough that when you want to come down to what is the clearest thing, the difference between Donald Trump and whoever runs against Donald Trump is that the Supreme Court will be gone for a very long time. It feels remote or abstract to talk about that, but that means Roe is probably gone. It means a lot of the basic fundamental civil rights and voting rights protections we have are probably gone. The modern administrative state is probably gone in its current form. I mean really, that sounds alarmist, but I honestly think that's what's on the agenda. So this is an extremely important moment to have this conversation.
I've known you for a long time. I've been a fan of yours forever. You're my second favorite legal writer in the world.
DAHLIA LITHWICK: To be clear, I demanded that introduction. I wanted the Kate Shaw-
CHRIS HAYES: That's right.
DAHLIA LITHWICK: ... minus the wife of mine and mother of my children.
CHRIS HAYES: Don't say you're the mother of my children, because that would be weird as hell.
DAHLIA LITHWICK: Very destabilizing.
CHRIS HAYES: No, I mean, Kate and I... It's funny. Kate and I, even when she was in law school, we would read your columns on the court and talk about them and trade them back and forth and be like, "Did you see this Dahlia line? Did you see what she said?" So I'm a huge admirer of yours.
There's a lot to talk about. I guess I want to start on impeachment. Kate actually wrote this op-ed in the Times about how much it mattered. I thought it was just a really insightful piece about how much it mattered, what kinds of arguments they made. Even if you assume acquittal is essentially foreordained. To be clear, removals never happened in the history of the country, so it's not like something crazy cork right now. It's a very high threshold. She said it matters if they're making essentially legal arguments or if they're making any sort of crass political ones, and what kind of arguments they're making.
CHRIS HAYES: Then you had a piece in Slate being like, "The arguments they're making are dangerous, are genuinely dangerous to the country." Why do you find them so dangerous?
DAHLIA LITHWICK: Well, I mean, I guess we should be clear that we're taping shortly after Alan Dershowitz said his... I think the legal term is bats---. I don't know if I'm allowed to swear. But I mean, really stood in the well of the Senate and said it can't be a corrupt motive. It can't be an impeachable offense if the president did the thing he did, because he just really wanted to get reelected, because that's for the good of the nation.
CHRIS HAYES: Right. He views his reelection in the national interest.
DAHLIA LITHWICK: Again, to be clear, he seems to have sort of walked that back and now is demanding Lincoln-Douglas style debates with every journalist who has misinterpreted.
CHRIS HAYES: Who accurately characterized his argument.
DAHLIA LITHWICK: The words he said with his mouth. But okay. But and a little bit, that article was in reaction to... I think there are just two things that he did that I found very scary. One, and many, many people called this out when it happened, was you just can't say that as long as there's mixed motives, as long as 99 percent of this was a corrupt motive, when one percent was for the good of America, then he can't be impeached. Because it really does open the floodgates for presidents to suppress the vote, and have people assassinated, and launch foreign wars. I mean, anything is off the table and obviously, that's very scary.
The other thing that he did, and this I actually remember talking to Kate about back when she was writing about presidential tweets and motive. Because the other thing that Dershowitz did that I find very destabilizing, Chris, is he took mens rea out of the picture, right? Intent is no longer something that is subject to scrutiny.
You may remember some of the times that I talked to Kate from my show were when we were talking about whether the tweets, whether the statements that the president made before the travel ban, whether his antipathy toward Muslims on the campaign trail, whether any of that mattered in establishing a sort of anti-Muslim animus for purposes of the travel ban.
The argument that his lawyers were making even then, two years ago in court, were very familiar to what Dershowitz is doing, which is it is not ours to probe the mind that we... Who are we to psychologize and try to understand the deep, ineffable complexity of Donald Trump. Right? Who is basically lizard brain with a Twitter-
CHRIS HAYES: The least complex, yes.
DAHLIA LITHWICK: Right. With a Twitter feed. So I'm worried about-
CHRIS HAYES: Yeah, that's a great point.
DAHLIA LITHWICK: ... those two things acting in tandem. Because first he's saying there can be no corrupt motive if he's just trying to get reelected. Then going further and saying, "But really, who are we in this jury to even ask what the president's motives were?" I just really, really worry that that is... Kind of the phrase I use was sort of constitutionalizing narcissism.
But we're all trapped in Donald Trump's brain. We're careening back and forth in his world of like, "I want this, I don't want this. I like this. This makes me grumpy." The idea that all of that cannot be subject to a check because we can't ask ourselves what his motives are, what his mens rea is, I find very scary, Chris.
CHRIS HAYES: It's scary and it's crazy making too. I think the Muslim ban example, and Kate wrote this great Law Review article about presidential speech precisely on this question about using it as evidence of intent.
I remember someone, it was some law professor who said something like, "Look, if you're running a municipality and you pass a law that says you have to put your garbage out on Saturdays or face a fine, that's obviously fine. If you do it because there's been an big influx of Orthodox Jews into your municipality, and you want to send the message to them, 'We don't want you here, and we're going to start racking up fines on you because you're observing the Sabbath and won't put your garbage out,' that's obviously not fine."
But the thing that makes it not fine is the intent of the thing. There's just no way around it. So if you say, "Well, who's to say intent?" then you're just opening up this crazy floodgates for all sorts of persecution, and oppression, and misuse of government authority.
DAHLIA LITHWICK: What's so funny is for the past two weeks I've been saying, "Why are we even listening to Alan Dershowitz? He's not a constitutional law scholar. He's a criminal law scholar." But that makes this even more annoying because the predicate for white collar crime for so much of criminal law is understanding that mens rea, that your mental intent is one of the elements.
You can't just say, "And for the crime of the thing that I say has to be criminal, there can be no mens rea. Or at least the president somehow floats above the mental state. We can't even ask ourselves, because that is wrong." I just think it's really crazy coming from a criminal lawyer. Because if you can't ask yourself, "did this person want to be part of this corrupt conspiracy or not?" you can never prove conspiracy. It's nuts. So it's particularly galling coming from him.
CHRIS HAYES: It's more than that too, right? Because there's the problem of all this proving too much. If the president were say... Not this president, but let's say a president had a crazed fan assassinate his rival who was serving the Senate on the steps of US Capitol.
DAHLIA LITHWICK: Well, that went dark.
CHRIS HAYES: And that president... Well, I'm in a dark place right now. That president were to the next... The person's arrested by the Capitol Hill police. He's put in jail under the federal system, right? Because he's on Capitol Hill. And the president issues a pardon the next day.
Now, clearly, the pardon powers is absolute in the Constitution. If you're going to come to me and say, "That's not impeachable," well then we've got a real problem. What are we doing? It seems to me the logical entailments of all the arguments they're making is that that wouldn't be impeachable.
DAHLIA LITHWICK: Maybe this goes to... I mean, I think the reason that you and I are sitting in a studio and our eyes or googling around in our head is because we're about to see the majority of Republicans in the Senate all sign off on this.
I think that the thing that happened this week that is also kind of crazy making is we went from John Bolton has to testify, there is new evidence, there is no question. This is the one person that we didn't have, right? The center of the doughnut, which was the guy who was in the room and knows what was said. That guy's got to be allowed to testify.
Somehow the way we've made ourselves okay with, "We don't need new evidence," is in just the span of a couple short days, we've moved to this really terrifying place of, "We don't need new evidence. We know what Bolton's going to say. Let's stipulate. He's probably going to say that Donald Trump was part of this-
CHRIS HAYES: Exactly.
DAHLIA LITHWICK: ... completely corrupt conspiracy that was only done to serve his own interests. And that's fine."
There's been a lot of good writing by people who are sort of watching the degradation of the rule of law. The idea that we went from, it didn't happen, it happened, but it doesn't matter. That's just a really profound shift.
The sentence I used trying to describe this to someone is they always say, if you can't win on the facts, argue the law. Here they can't change the facts, so oh my God, they're going to change the law.
CHRIS HAYES: Right.
DAHLIA LITHWICK: They are changing the notion of what intent is. They are changing the notion of what an impeachable offense is. They are now going to say a president cannot be impeached as long as he says he was serving the national interest by corruptly promoting his electoral fortune. They're changing the law.
CHRIS HAYES: The upsetting thing about this to me is that it gets at this sort of fundamental question about what we mean when we say the rule of law. Because I think there's some sort of aspirational aspect to that, and there's also a lived reality.
I mean, when you interview people who live in places in which the rule of law really doesn't function. Egypt under Hosni Mubarak. Thinking of this, because I remember having a long conversation once with a Egyptian dissident about Jarir. There really is a difference between that system and ours.
But the worry here, right, is that the aspirational idea of the rule of law is that it's a restraint, it's a binding restraint on power. The worst use of law is essentially a weapon for powerful to wield. Those two things are true simultaneously in America, sit side by side.
Donald Trump has spent 40 years using the law as a weapon. I mean, literally, guys who installed his pianos in the Taj Mahal in Atlantic City who didn't get paid, and then they sued him. Then he just ran out the clock in court and then he countersued.
He's doing that now to the whole country, to the Constitution. I mean, you had his lawyers up being like, "Well, if you call one witness, there's going to be a million. Then it's going to get tied up at the courts. We're going to make all these-
DAHLIA LITHWICK: Right. Gum up the Senate-
CHRIS HAYES: Exactly.
DAHLIA LITHWICK: ... that's working so hard to do nothing. Yeah.
CHRIS HAYES: Then that part of it, we've seen it with Harvey Weinstein, we've seen it a lot of the Me Too stuff where it's like you're armed with lawyers, you're armed with NDAs, you're armed with these very powerful people that know how to work the courts. Sucked that they turned the courts, they turned the law into a tool of shutting you up or to keeping you in your place. That, to me, always exists. So I don't want to be overly sort of optimistic about what the rule of law in America means. But it just seems like this is taking it to a new level.
DAHLIA LITHWICK: You went super dark, so I'm going there too. I will say one of the things that I've been reading compulsively in the last two years, at the suggestion, by the way, of a judge who said, "You should read this," is the Nuremberg Judges' Trials. Because you really realize what happens when you have a form, right? An institution, a formal structure of judges judging and using their power for really evil ends.
It's just a useful corrective for me, because I have been such a Patty Hearst fan girl of the courts. My entire career, the courts are good and they're just. They were a little off in the South if you were an African American defendant and an all-white jury, stipulated. But by and large, this is a machine that brings about justice. It's really helpful to go back and see what judges, qua judges, acting under the color of law were doing.
CHRIS HAYES: I just want to make sure I understand this. You're saying the records of the Nuremberg trials against Nazi judges-
DAHLIA LITHWICK: The judges, yes.
CHRIS HAYES: ... who sat in the Nazi legal system and issued rulings under the law of Germany.
DAHLIA LITHWICK: And they were perfectly within the four corners, you know? And then when they go on trial, they are just like, "I was just applying the law," and for me it's useful. All the Nuremberg stuff is useful, but it's just really useful to be in my lane looking at what judges ... how they justify what they did. And I think if you were-
CHRIS HAYES: Wow. I've never even ... You know what? Until you said that, I did not know that judges were prosecuted at Nuremberg.
DAHLIA LITHWICK: Yeah, I know. It's quite amazing and it's a really good reminder because if you were black in the South in the 1930s-
CHRIS HAYES: That's what you faced.
DAHLIA LITHWICK: ... that's what your life was like, and you have no illusions that the kinds of illusions I bring to the table. And I say it all, A, to just depress us further. But also I think to make this point that if you read ... I mean, the best book on this is James Zyron's book about the law of Trump. Like, 1,400 lawsuits that he has done exactly what you're describing; just using the law to crush and destroy people who complain about him, to get what he wants, to get himself out of any kind of creditor situation that he doesn't like. I mean, it's just this is a pattern. He's been doing it his whole life. This is a Roy Cohn special, and he has just ... All of those plays are in evidence in his defense. You know? You trash the other side, you belittle and besmirch their motives. I cannot believe we're talking about Hunter Biden day after day on in the well of the Senate. It's just all of these techniques that have to do with running out the clock, making sure that whatever judicial process might avail justice is just not going to work in a timely way. And this has been his whole life. We just didn't expect the courts to accede to it.
CHRIS HAYES: That really is to me the question. You just talked about being kind of a believer in this aspirational vision of the rule of law, and Kate who we've now mentioned a bunch is that, and I draw tremendous inspiration from her belief because it's not naive in any way. It's very complicated and profound. She has really thought about this and really does believe in it truly and deeply in a way that I find inspiring and draw personal solace and inspiration from. But it also feels we're at a test case of it in some ways. And you wrote this piece that was about Kavanaugh that really stuck with me, about why you hadn't been to the Supreme Court since Kavanaugh was put on the court, which was kind of cri de coeur of a kind of something in you breaking about your faith in this, this institution that you've devoted a lot of your adult life to writing about.
DAHLIA LITHWICK: A couple things. I mean, one thing is I'm not sure I've had a public conversation about it, so it's arresting to think about it a little bit. I class myself with Kate, with my law school colleagues, with the people that I cover on the courts, as one of these really small seat conservative liberals, because we just believe in institutions, and no one feels weirder when courts are under attack than I do because from day one of Trump and Trumpism, I was the one who said, "Two things are going to save us, journalism and the courts," and I really believed that. I've had to reckon with the fact ... I mean, we can talk about this till the cows come home, but you know, Donald Trump has seceded a fifth of the federal appeals courts, maybe closer to a quarter at this point. If he has four more years, half of the federal appeals courts will be Trump appointees, and they're young and the ABA says they're activists and not qualified, and they're already week after week issuing rulings that are anathema in all sorts of places that you and I care about. And so then I have felt for some time like I was weirdly in this foot race, right? Because I want to believe in the courts, I need to believe in the courts. It is still statistically true that Donald Trump has lost 70%.
CHRIS HAYES: Yeah, you should be clear on that. He really had gotten his ass handed to him a ton in federal court.
DAHLIA LITHWICK: He is the losing-est president in modern history, right? And it's largely because everything is done sloppy and they can't seem to comply with just the basic how you do procedures in order to change laws. So he loses all the time, even with a massive shift in the federal bench. But that's going to end. I feel like a lot of people are looking for the marker of at what point ... He's flipped two circuits, I think about to flip three circuits. At what point are the markers the indicia of, oh, now the courts are not going to be the bulwark against Trumpism. They're going to be actually the handmaids of Trumpism, and are we going to know when that happens? And so I've been kind of feeling like I was patrolling that border as a journalist and as a court lover for a long time. And I think Kavanaugh really accelerated that for me because I just was in the room during his Senate hearing. I was not far from Dr. Ford. I was not far from him. I think I described in that piece what it was when he started shouting, and my kid who was watching in school in New York texted me and was like, "Are you perfectly safe in there? Because I think this guy is dangerous."
CHRIS HAYES: Wow.
DAHLIA LITHWICK: And how that kind of blanked me for a minute as a parent. Like, my kid thinks that I am in physical peril because Brett Kavanaugh is spit screaming. All of that was really disarming, and in addition to which the part of me that believes that justice cures things knew that that FBI investigation was bogus; that Debbie Ramirez was never even interviewed. So I think that the process was so broken and then I just had to sit with the fact that, am I going to go and sit in the court with my notepad and my pen and write, "Justice Kavanaugh asked a witty question about X, Y or Z"? Or as you said, is something just irreparably damaged in my view? And then it goes to this thing that I've really struggled with, Chris, which is at what point are you complicit? Right? At what point are you covering for and normalizing something that you just think in your bones is wrong? I think that that has been ... I'm sure you have a million versions of this, where I'm asked to be on stages with people that I think-
CHRIS HAYES: Well, I work in cable news, so I'm totally pure and never had that feeling.
DAHLIA LITHWICK: Exactly. But it's really hard. Not a day goes by where I don't have somebody pick up the phone and say, "Should I be on a panel with person X?" Ken Starr, somebody called this summer and said, "I just don't know if I need to be on a panel with Ken Starr." So, I think that there is a really deeply personal set of questions here about how you find your line about giving cover to something that you think is broken. That was my answer for me, and maybe I would just add parenthetically that the worst possible outcome of that particular piece, which I wrote this fall, was the number of constitutional law professors and people who teach Supreme Court seminars in law school who wrote me notes saying, "Thank you for giving voice to that. That's why I gave up teaching constitutional law this year." And I wanted to-
CHRIS HAYES: That's really upsetting.
DAHLIA LITHWICK: ... stab my ears out because I don't want them to quit. We can't all say, "Well, the court's not a court and the law is not the law and I'm not teaching it anymore." That's got to be wrong. So if I gave cover to those people to do what I'm doing, then I am full of regret.
CHRIS HAYES: And I think there's a very deeply personal thing, I think, as people wrestle with this period. Particularly I think people that are institutionalists, people that have worked in federal appeals clerks, as you have, have worked in administrations, have been in situations in which they're making very difficult calls about what the right thing to do, what the legal thing to do is, which is that admiration, respect for how valuable that is, a system that has those things, while watching it be kind of gutted and also being a little ... I find myself a little tempted. I think, "Okay, well, if there's a democratic president in 2021, they just need a bunch of people ... They need to do the same thing." Just plow ahead with your climate agenda, throw a million things at the courts. Some of them are going to get struck down, but some of them you might win or you might delay enough to get it done. If you got to break some eggs making the omelet, don't be overly worried about what the lawyers say. And I feel that temptation right now, which seems to me obviously natural and almost crazy not to do that, but also dangerous.
DAHLIA LITHWICK: Right, right. No, I mean, this is easy, right? You pack the courts on the first day, you add a kajilion new seats to the federal circuit courts voting in D.C. and Puerto Rico, you could fix this. And I feel the same way as you, which is the small C conservative in me says that's mutually assured destruction. Norms matter. This is the conversation about the filibuster. This is a conversation about blue slips and all ... Do we reinstate blue slips?
CHRIS HAYES: Blue slips are ... Will you explain what blue slips are?
DAHLIA LITHWICK: No, blue slips are just a very, very old Senate tradition that allowed home state senators essentially a veto over a judge. The blue slips are the reason, by the way, that there were judicial vacancies that piled up in Texas and in South Carolina and North Carolina. There were districts where you hadn't seen a judicial vacancy filed in years-
CHRIS HAYES: Because Republican senators said-
DAHLIA LITHWICK: No.
CHRIS HAYES: ... blue slipped all of the Obama-
DAHLIA LITHWICK: No Obama judge.
CHRIS HAYES: ... nominations and the blue slip procedure, which isn't written to law, it was just tradition, was upheld during that period of time.
DAHLIA LITHWICK: Yeah, this was preserved, and the minute Mitch McConnell got what he wanted in Donald Trump, he just gutted it. And so there were a lot of vacancies to fill and they were quickly filled, again, some of them with 35 year old bloggers. And you know, we have to figure out what the antidote to that is. It's worth remembering this was an Obama problem, right? When Obama was asked when he was on the campaign trail, he was asked, "What do you think of Brendan or Marshall, putting them on the Supreme Court as a tonic to the Scalias and the Thomases?" And Barack Obama said to the Cleveland Plain Dealer at some open mic thing with them, he said, "No, the time for that kind of judge is over and I will put centrists on the court because change shouldn't come from the judicial branch; it should come from the political branches." And he made good on that. He put a lot of centrist old guys on the courts. He didn't want to go nuclear having seen what Bush judges did and were.
And so I think it is just, there is a by temperament asymmetry to just breaking stuff. And you and I are sitting here, we're not nihilists. We're not going to pack the courts and we're not going to change the vote. But I think that one of the things we all have to reckon with in this moment is how we extract ourselves from this if one side as we're watching the impeachment is going forward saying, "I am sure as hell going to impeach the next president probably just for wearing a tan suit," and the other side that has said, "This was catastrophic and how do we retreat from this kind of brinkmanship?" And that for me is a question that I absolutely can’t answer.
CHRIS HAYES: Well, and I want to talk a little about what the courts have looked under the Trump years. One thing that I think is been a theme in Trump litigation and has meant they've lost a lot, but the scary thing is when they don't lose, is just all this bad faith. I mean, the census case of the most famous where they're just lying, straight up lying to the court and the district court judge there, Furman, is in his own understated way livid, like, "You guys came in here and lied to me left and right." And then they discovered a thousand new documents by the way, as they're trying to escape formal sanction from the courts. But there's all this stuff they're doing all the time, like these judgments before cert that they're constantly trying to get where they're skipping appeals courts. Like, explain their legal method and how it shows a certain kind of cynicism in terms of how they think of the courts, which is that we've got a 5-4 majority on the Supreme Court. Let's get there as fast as possible.
DAHLIA LITHWICK: Yeah. I mean, probably the most emblematic trend is these abortion regulations, right? Which is, this is beyond the trap laws. This is beyond what we have in Louisiana that's going to the Supreme Court in March, in June Medical. This is all the States who are just like, "Dude, we have five. Let's just pass an all out-"
CHRIS HAYES: Abortion ban.
DAHLIA LITHWICK: "... heartbeat law. Let's pass crazy stuff that is deliberately nullifying Roe v. Wade and Casey." And so I think that there has been this zeitgeist that says, "We have five. We may not always have five. Let's get it done." And so you see it really acutely there. But I think your question is also the Justice Department is really enabling that, right?
CHRIS HAYES: Yes.
DAHLIA LITHWICK: The Justice Department, which keeps leapfrogging cases. "Oh, you don't need to go through the intermediate courts. Let's go straight to the Supreme Court, and we don't even need a trial record. Let's just get it done." We're seeing it time and time again. We're also seeing, for what it's worth, this justice department in addition to rushing cases to the court without letting it play out and percolate through the system, we're also seeing ... and this is shocking if you live in Kate's world or my world, the Justice Department flipping sides on a record number of cases. We have a Justice Department that was for DACA, is now against DACA. For the Affordable Care Act, now aggressively litigating against it. There's just a longstanding norm, Chris, that it doesn't matter who the president is; the Justice Department doesn't flip sides in cases because it's unseemly, and it's not that president's justice department. It's supposed to be consistent across-
CHRIS HAYES: That's interesting.
DAHLIA LITHWICK: ... different administrations. It was a huge, huge thing when the Obama Justice Department started to go hinky on gay rights, because that felt it was a massive shift away from what DOJ policy had been. And here we have the Barr Justice Department just throwing it all up in the air and saying, "Yeah, we don't care what. In fact, if the Obama Justice Department was for it, we hate it." And that's a big norm violation that we've seen. But I think just generally there is this kind of recklessness, this sense that we want to do as much as we can. We want to do it fast. The census case was a really good example of John Roberts finally balking, and I think you're quite right. The only reason John Roberts switched his vote in that case was pretty clear at oral argument. He was going to be fine with adding the citizenship question to the census, is that the court just got pantsed. I mean, really as that litigation was pending, all these secret Hofeller files come out, it becomes clear that Wilbur Ross just materially lied about the purpose of the question. And John Roberts, it turns out, has a breaking point, and it's being pantsed. It's just being utterly humiliated and lied to.
But I don't think that generally, I've seen a lot of resistance at the Supreme Court level to the way that this Jeff Sessions and Bill Barr Justice Department have been sort of careening through history trying to break stuff. And in fact, you know, it's interesting because when I look at the DACA case, when I look at the cases on the docket this year, the Title VII protections for gay and transgender workers, the court seems to just have very little problem with how things are done. You know? "Yeah, it was erratic. Yeah, Trump did it in a tweet, but all's well that ends well." This court does not seem to be in any way bothered by the sort of sniff test problem that some of the lower courts have contended with.
CHRIS HAYES: What do you mean by sniff test?
DAHLIA LITHWICK: Well, I think that in a lot of this litigation, the lower court said if you're going to rescind something, don't do it by a tweet. If you're going to rescind something, don't have Kirstjen Nielsen cough up a hairball of a rationale for why we're rescinding DACA. Make it look you care. And the lower courts still sort of have at least some sense that looking you care is the thing that maybe the justice department should do. But it's really been interesting at the Supreme Court level, and again, maybe the best example of that is, "Oh my God, they have taken cert in a case that literally will overturn Whole Woman's Health that was decided three years ago."
CHRIS HAYES: And Whole Woman's Health, just for folks that are not clear, is a set of abortion restrictions that were passed in Texas. They were extremely onerous, would have I think put all of the clinics out of business.
DAHLIA LITHWICK: I think all but four were going to be-
CHRIS HAYES: All but be.
DAHLIA LITHWICK: I mean, it was going to be for ... The vast majority of women in Texas would not have been able to-
CHRIS HAYES: Access abortion.
DAHLIA LITHWICK: ... get to a clinic.
CHRIS HAYES: And the Supreme Court struck it down as a violation of Roe and then Casey, right? That there's a continuity of the jurisprudence that said ... I think the term is undue burden is the standard that is articulated in Casey, that this violated that. This was an undue burden. Basically what's happened is Louisiana has passed-
DAHLIA LITHWICK: Identical.
CHRIS HAYES: ... identical law and the courts granted cert because now we have the votes, essentially.
DAHLIA LITHWICK: Mark Stern at Slate put it this way on my podcast; he said the only legal question that really exists in this due medical abortion case is whether the substitution of Anthony Kennedy with Brett Kavanaugh makes a difference in the undue burden standard. I mean, that's the only question, but it's a really good example of this is a court that was thinking about, "Huh, optics matter. Maybe wouldn't take a case to overrule it three years later."
CHRIS HAYES: Right.
DAHLIA LITHWICK: Same with the New York guns ban, right? The Second Amendment case. It was mooted by subsequent events. Court heard it anyway. And so I think there is just this slightly frothy at the mouthy eagerness to get this stuff done.
CHRIS HAYES: Except this is my favorite example of bad faith, which ... And this drives me nuts. I've tried to sort of articulate on the show, but because involves ... Civil procedure is a little hard, but there's been a bunch of cases where the Trump administration is lost at the district court level. There's the appeals circuit courts, which is the intermediate level, and then the Supreme Court. Usually what happens is you lose the district court, you appeal to the appellate court, and then if you lose there, then you appeal to the Supreme Court. And in a bunch of cases, they've lost at the district level and just have been like, "We don't need the appellate court. We're going straight to SCOTUS, because that's where we can count to five."
And then there's the ACA case where it's like everything else, they've been like, "We've got to get to the Supreme Court. Come on, we're doing this, we're doing this." And the ACA case where they are backing incredibly politically nuclearly unpopular litigation to destroy the ACA, the entirety of it, all 2,200 pages, all the things you about it, including the thing you might not like, but things you do like, they wanted the district court level. The circuit court sort of remanded it back to the district court-
DAHLIA LITHWICK: For no reason.
CHRIS HAYES: ... for no reason. Mostly to just tarry, so it's not an election year problem.
DAHLIA LITHWICK: Yeah. Essentially said, "Yeah, you should have another look at this-"
CHRIS HAYES: Because it's an election year.
DAHLIA LITHWICK: "... after the election." Yeah, no, there was no-
CHRIS HAYES: And then DOJ says, "We don't need the Supreme Court to step in." The blue states, the attorneys general said, "No, no, no let's get the Supreme Court on the record in the election year about whether they're going to destroy the whole f------ ACA," excuse my language. And this justice department, which has been rushing to the Supreme Court for everything, was like, "Oh no, no rush, no rush. It's just the ACA that we want to get rid of. No rush this year." And it's just like, give me a break. Give me a break.
DAHLIA LITHWICK: The story I tell, and I only tell it because Erwin Chemerinsky, who's the wonderful dean at Berkeley Law School, told it on my podcast at the beginning of this year, is that the only thing you need to know about this insane docket, we've got Title VII, we've got DACA, we've got abortion, we've got guns. There's nothing that isn't on the docket this year.
CHRIS HAYES: Arguments being heard by the Supreme Court this year, when you say the docket. Yeah.
DAHLIA LITHWICK: Yes, this term. Erwin said, and I did not really clock this at the time, every single one of the cases could have been heard last January, a year ago this month. They were all calendared for discussion. They were debating all of them. The Supreme Court did not take any of these last year. Why?
CHRIS HAYES: Why?
DAHLIA LITHWICK: Why? Because Brett Kavanaugh. Because they had-
CHRIS HAYES: Oh, it was too soon.
DAHLIA LITHWICK: Too soon. Look, do I know that for a fact? No, but I think I'm pretty confident that when you're ... you know, got these 31% popularity ratings-
CHRIS HAYES: Oh my god-
DAHLIA LITHWICK: ... and because women were in the streets in their “Handmaid's Tale” outfits. John Roberts, very savvy guy, was like, "You know what? Let's just hold all these over."
CHRIS HAYES: Let's take the heat off Brett.
DAHLIA LITHWICK: "Let's hold all these over." The two big ticket cases they took where the gerrymandering case they had to and the census case that we talked about. Everything else waited until October. That tells a bunch of stories that maybe dovetail with some of what we're talking about, but the big story it tells is that John Roberts is really, really savvy about optics and that he didn't want in the weeks after Brett Kavanaugh the most, even including Clarence Thomas, I think contested seat in our lifetimes. He didn't want to have the court take a big honking abortion case in a big honking DACA case and a big honking guns case, and so they just went dark.
CHRIS HAYES: Although the flip side of that is they're going to decide all these in election year.
DAHLIA LITHWICK: Well, that was the bad part of the thinking because-
CHRIS HAYES: Right? Whole woman's health, I ... Just purely on the politics, not on the law and the substantive attack on women's reproductive autonomy, but purely on the politics, I think it is bad for the Republican Party and the anti-abortion movement to win a big legal victory this in an election year. Maybe I'm wrong, but I do think there will be backlash. What do you think?
DAHLIA LITHWICK: There will be that and to boot, then the court went and took the follow on to Hobby Lobby and the Little Sisters case. They're taking a huge contraception case. It seems to me that if women are watching, this will be an absolutely massive year at the Supreme Court. Now, I say if women are watching because there's so much going on that it's hard to believe that anything can break through. I do think, and this is where, again, I've heard your wife talk about this more than I've talked about it, but I do think there is reason to believe that John Roberts on some of these issues knows what's going on. I also think there is reason to believe that Elena Kagan, who is the only other super high EQ savvy justice of the nine is working the levers a little bit to say, "Really? Really, you want to do all of this plus Don McGahn, plus the law of Trump, plus the tax returns, plus preside over an impeachment trial six months before-
CHRIS HAYES: Right. They're also going to get the president's tax returns and compelled testimony. They're going to get that too, right?
DAHLIA LITHWICK: I think so. I think that the court docketed those for the very end, by the way. Those again could have been faster. Could have done ... Right?
CHRIS HAYES: Could've been faster.
DAHLIA LITHWICK: Judge Sirica, like all of the Nixon tapes case happened in a couple of weeks, but the court was like, "Yeah, this seems it's really urgent. Let's hear it in April." So it's again up to the court to decide whether they want to do something expeditiously. But I do think all of these cases are piling up, and I'm quite sure that Clarence Thomas doesn't care what the electorate thinks about the court. But I'm also quite sure that John Roberts cares a lot.
CHRIS HAYES: Well, let's talk about Roberts because he ends up being in the Roberts court now with the departure of Anthony Kennedy and with Kavanaugh replacing him. He is now the median ... He's the middle of the court, I think it's fair to say-
DAHLIA LITHWICK: Yes, he is.
CHRIS HAYES: ... in most big cases. He was the crucial fifth vote on the census case, which he appeared to switch over, which by the way, just taking a step back, the fact that four of them voted to say, "This is fine, what you've done. You've lied to the court, you've lied to Congress, you've materially misrepresented what you were doing to hide essentially a nefarious motive."
DAHLIA LITHWICK: And just little sidebar that Clarence Thomas does a little weird “Homeland” string wall thing. He's actually mocking Judge Furman in his dissent, talking about judges and fanciful ... going after an Article III judge perfectly comfortably. Not just that four of them signed on, but that it's now cool to go after the trial judge who painstakingly laid out the conspiracy he just described.
CHRIS HAYES: So, Roberts who is right now as we're talking on the TV screen, presiding over the impeachment trial, is a crucial figure, one of those crucial fingers in American life right now, and I want to talk about him right after we take this quick break.
So, Chief Justice John Roberts is now the kind of swing vote, which means the court is much more conservative and people on the court always hate it when you map it onto this because they point out that 90% of the cases are-
DAHLIA LITHWICK: 8-1, 9-0…
CHRIS HAYES: 8-1, the Marisa question or railroad law, and that's true. But the ones on the sort of most salient along the lines that America polarized on, they tend to be very close. How do you see Robert seeing his own role in this? You just talked about how savvy he is.
DAHLIA LITHWICK: Whenever anybody says he's a swing vote, I have to stop and say, "He has won three times." Right?
CHRIS HAYES: Yeah, right, right.
DAHLIA LITHWICK: Once the census case, and the two Affordable Care Act cases. So he's not ... I mean, I think occasionally he is to the slightly left of the conservative block. But I think the famous study that was done by Judge Posner and Landis that laid out the most conservative judges since the new deal, and Roberts is solidly in the top 10. So let's ... I think we have to be clear-
CHRIS HAYES: Yes. Yes, no, he's ... Yeah.
DAHLIA LITHWICK: ... that he is not-
CHRIS HAYES: He's also a life ... He's a made man. If things hadn't worked out the way they did, he could be up there with Philbin arguing for the president. They're all of the same ... Josh Hawley, Ted Cruz, Roberts, Philbin; they're all products of the exact same pipeline-
DAHLIA LITHWICK: Yes.
CHRIS HAYES: ... of right-wing legal stars.
DAHLIA LITHWICK: Right. Federalist Society, Reagan administration. I don't think anybody should have any illusions that he is Anthony Kennedy. Anthony Kennedy was legitimately ... And I say this laughing because five years ago I would've said to you, "Anthony Kennedy is an incredibly conservative guy who has swung to the left in a handful of cases."
CHRIS HAYES: Which is true.
DAHLIA LITHWICK: And we have this fantasy of him being in play all the time. And we used to say that about O'Connor too, by the way. She was legitimately, I think, a swing voter. So Roberts is just stipulated one of the most conservative jurists in this country in the last hundred years, but he has changed a lot because he is chief, and he takes being chief unbelievably seriously, Chris. He sees it as it's sort of a direct handoff from Chief Justice Marshall to Chief Justice Rehnquist to him. And people think that it doesn't mean anything to be chief, it's just who gets to assign opinions. But he really does feel that in his hands lies the dignity and the esteem and the estimation and the public regard for the court. And if you read his sort of “State of the Judiciary” speech that he does right before new year's Eve, he was at pains. That was a speech-
CHRIS HAYES: Yeah, it was a fascinating document.
DAHLIA LITHWICK: ... that really was I think seven pages of special pleading. Like, America, don't hate judges. We're people too. We have soft, silky fur. We're not scary. Let me just call out a really cool, awesome judge who reads with poor children in D.C., Merrick Garland, but I won't name him. Merrick Garland. It was a really amazing sort of tour de force of judges are people too. And the judiciary, all it has is public regard. He really lives and breathes that. He worries about that. I think that's my short answer to why all that stuff was not on the docket last year. So, I think it's complicated because he's getting everything he wants, right? It's Christmas in July. Everything he wants, he's getting.
CHRIS HAYES: That he's worked his whole life and career for. I mean, these are things he ... Particular on abortion, I think.
DAHLIA LITHWICK: And race.
CHRIS HAYES: And race, yeah.
DAHLIA LITHWICK: Really, more than almost anything-
CHRIS HAYES: Yeah, he's a race man.
DAHLIA LITHWICK: ... I think that he feels like the way to get beyond race is get beyond race. Right? That's what he wrote. But I think it's fair to say these are his lodestars and he's getting everything he wants. That said, maybe this goes to the question we almost opened with, which is, when does it go so far that it breaks? I think that as worried as I am about that, when does the judiciary get so corrupted that it's broken? I think John Roberts lies awake at night asking himself the same question. And I think it's not an accident ... Mark Stern and I wrote about this, that it's not necessarily John Roberts' clerks who are all over the Trump administration. It's Clarence Thomas clerks.
This is not how John Roberts wanted it to roll. I don't think he has great affection for this president. I think he punched back really hard when the president started saying, "Obama judges bad, Bush and Trump judges good." It's the only time that John Roberts kind of got into it with this president. I think that somewhere in the hippocampus, he knows that destroying the judiciary is real. It's possible. Destroying rule of law, destroying norms is real, and he worries about that.
CHRIS HAYES: Although I will say that we all lived through Bush v. Gore, which I think would have done it, and it didn't. To me that that was the most ... It was so naked. There's the infamous line in Bush v. Gore, which is a finding about the extreme burden of the 14th amendment that they then write in the opinion should not be applied as precedent anywhere else. I mean, it's preposterous in my humble and amateur and non-legal opinion, a ridiculous show of wields power. And the reason I think about Bush v. Gore in my mind a lot is to me, that is where the rubber is going to hit the mother effing road, because I feel like this is going to be a 50-50 coin flip election. I think the odds of us ending up in a situation where Wisconsin's decided by a thousand votes and maybe Arizona is too, or maybe Pennsylvania is too, I think about that all the time, and I bet you he thinks about that all the time too.
DAHLIA LITHWICK: I'm sure he does and I'm sure he also thinks when I ... Again, I'll go one further. When I think about disastrous scenarios, I think about Professor Josh Geltzer who wrote a year ago, even if he loses, Donald Trump is not going to step down. There is going to be some kind of mega constitutional crisis where he just says no matter what the election was, now I think it was ... You know? People-
CHRIS HAYES: Yeah, or he'll tie it up in the courts. Right? We've already know what the play will be like. I'm going to file a million lawsuits, I'm going to sue the electors, I'm going to sue the states, I'm going to sue the state's secretary of state, I'm going to ... Blah, blah, blah, blah, blah.
DAHLIA LITHWICK: Right. Which by the way, that was the Brooks Brothers revolution in Bush v. Gore, right? Once side just decided we were going to go in here and lawyer the crap out of this, and the other side, I don't know, crocheted things. I don't know.
CHRIS HAYES: Well, they lawyered it too; they just lost.
DAHLIA LITHWICK: Yeah, no, but I think that there wasn't that, "We will win at all costs." I'm not sure that was ... The zeal was there and I think that that is really redoubled now. And so when I think about what John Roberts worries about, it's whether it's a contested election or whether it's Trump refusing to step down. The court saying, "You will turn over your Mazars records," and Donald Trump just saying no. One of those things I think is going to land in his lap sooner rather than later.
CHRIS HAYES: I think that's exactly right, and I think we are careening towards that, I think right now. A lot will ride on how that shakes out. Dahlia Lithwick, senior legal correspondent for Slate. She's host of a fantastic podcast herself. It's called “Amicus,” which you can find wherever you're listening to this podcast, and I would urge you to check it out. She's got a great episode with Kate Shaw, for instance, just to pick a guest at random. Dahlia, it was so great to have you. Thank you.
DAHLIA LITHWICK: Thank you. Chris, I love this podcast. I'm so super, super happy to be part of this I think amazing endeavor.
CHRIS HAYES: Once again, my great thanks to Dahlia Lithwick, senior legal corresponded for Slate. You should check out her great podcast, “Amicus.” You can always tweet us, the hashtag #WITHpod. Email us, WITHpod@gmail.com. We love to hear your feedback.
“Why Is This Happening?” is presented by MSNBC and NBC News, produced by the “All In” team, and features 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 I Haven't Gone Back to SCOTUS Since Kavanaugh," by Dahlia Lithwick
"Why Trump's Lawyers Should Talk Like Lawyers" by Kate Shaw
"Speech, Intent, and the President," by Kate Shaw
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