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today. Hi

1:04

and welcome back to Amicus. This is

1:06

Slate's podcast about the courts and the

1:09

law and the Supreme Court and democracy.

1:11

I'm Dahlia Lithwick, that's what I cover

1:13

here at Slate. And on Friday, the

1:16

high court handed down four cases

1:19

and announced that the last few

1:21

decisions of the term are coming

1:23

Monday, July 1st, including the long-awaited

1:25

question of whether former President Donald

1:28

Trump is immune from

1:30

criminal prosecution and the term

1:32

will wrap after that. Friday's

1:35

cases included a major decision

1:37

about whether cities can criminalize

1:39

sleeping in parks, AKA homelessness,

1:41

answer yes indeed they can.

1:44

Also a decision to overturn

1:46

the long-standing Chevron deference dealing

1:48

a real body blow to

1:51

the administrative state. And

1:54

finally a decision in Fisher to

1:56

narrow the federal obstruction statute that

1:58

lies at the heart. of

2:00

hundreds of prosecutions connected to the

2:02

January 6th attack on the Capitol.

2:05

All in all, a really big,

2:08

big power grab day for the

2:10

Supreme Court and an ominous sign

2:12

that presidential candidates may win debates

2:15

or lose debates and that these

2:17

performative network moments is not

2:19

what we should focus on because the real

2:22

revolution is happening across the street.

2:25

Joining us today to discuss the penultimate

2:27

day of the SCOTUS 2023 term is

2:29

Professor Pam Carlin,

2:32

co-director of Stanford Law School's Supreme

2:34

Court Litigation Clinic. Pam has

2:36

served among many other places as

2:38

assistant counsel and cooperating attorney

2:40

for the NAACP Legal Defense Fund

2:43

and twice as a deputy assistant

2:45

attorney general in the Civil

2:47

Rights Division of the

2:49

Department of Justice. And Pam and I

2:51

are joined, of course, by the indispensable

2:54

Mark Joseph Stern here at Slate to

2:56

help unpack what has just happened

2:59

and what is to come. Welcome

3:02

Pam. Thank you for having me. Welcome

3:04

Mark. Hi Dahlia. This

3:07

is a subduedist, subduedist

3:10

dude. This

3:12

is a day. So

3:14

listen, go ahead Mark. I'm

3:17

just so sad, Dahlia, that

3:19

the court is doing all this in

3:21

a way that makes it maximally difficult

3:23

for the public to understand and

3:26

that it's doing so stretching

3:29

into July holding the

3:31

immunity decision in a way that seems

3:33

designed to mute its impact. I just

3:35

feel like the court is up to

3:37

so much bad stuff right now and

3:39

we try to cover it like

3:41

it's like a not totally corrupted institution and I'm

3:44

just telling you now I'm going to struggle

3:46

to, I'm going to struggle to strike that pose

3:48

in today's episode. That's all I'm saying. Pam,

3:51

do you have any sad

3:53

feelings that you would like to express

3:55

to go along? To therapist, Dahlia. To

3:57

go, to caller, how

3:59

can I? help. It is

4:01

amazing what the court wants to criminalize and

4:04

what it doesn't. I

4:06

mean, that's one of the striking things about

4:08

the court right now is

4:10

they want to allow the criminalization of

4:13

homelessness while making it harder,

4:15

for example, earlier in the

4:17

week to criminalize somebody getting $13,000

4:21

as a public official for

4:23

services rendered and

4:26

by narrowing the scope of

4:28

the federal obstruction statute. I

4:30

mean, it's bad

4:33

in both directions. Dr.

4:35

Mary Jo Biese So our last show,

4:37

which came out all of 36 hours

4:40

ago, came out

4:42

after jarcosy and came out

4:45

after the EPA was hobbled.

4:48

And this sort of stood

4:50

as a bedside vigil for

4:52

the administrative state. But

4:55

holy cow, the decision in the

4:57

pair of Chevron cases takes this

4:59

to a new level. Now we're

5:01

not at bedside vigil. Now we're

5:03

at requiem with full black

5:07

veils and Latin humming. Dr.

5:10

Michael C. Biese I've covered my mirrors and I'm

5:13

renting my garment stallion. I don't know about you.

5:15

Dr. Mary Jo Biese Is

5:17

there any smoked fish on the

5:19

horizon? Dr. Mary Jo Biese Yes, yes. There is a

5:21

table with veils. Dr. Michael C. Biese It's ironic that

5:23

they did this in a case involving fish. Dr.

5:26

Mary Jo Biese It's so interesting

5:28

that I go right to Catholic

5:30

Mass and you all properly go

5:33

straight to the sable and the

5:35

locks and the chive cream cheese.

5:37

So listen, this is

5:40

hard to explain. And I want

5:42

to just be really clear Pam

5:44

wasn't here. We talked to Lisa

5:46

Heinzerling at Georgetown, but it's so

5:48

hard to take the abstraction of

5:50

what happened in Jarkasy, what happened

5:52

in the EPA case, the Good

5:54

Neighbor case, and put meat

5:56

on the bone so that folks understand. But

5:58

Mark, can you just- start by

6:00

telling us what Loperbrite, aka the

6:03

Chevron case, was about, and

6:05

how what was like a pokey little

6:07

dispute over like fishing monitors

6:10

on boats turns into today's missile

6:12

that strikes at the very heart

6:14

of the administrative state. Yeah, I

6:16

mean, this case should not even

6:18

exist because the controversy that's ostensibly

6:21

in dispute is over. The Trump

6:23

administration had imposed this rule that

6:25

required the fishing industry to help

6:27

cover some of the costs of

6:29

the federal compliance monitors who sometimes

6:32

go on the fishing vessels.

6:35

The Biden administration came in and

6:37

repealed that rule and refunded all

6:40

of the money back to the

6:42

fishing industry. So there's no live

6:44

case here, but the Supreme Court

6:46

spotted this as a great

6:49

vehicle to overturn Chevron deference,

6:51

which we'll talk about in full

6:53

very soon. And so the court

6:56

grabbed this case, Loperbrite, and a

6:58

companion case that's been

7:00

folded in called Relentless, in

7:02

order to, I think, finally once

7:05

and for all overturn Chevron deference,

7:07

amass a bunch more power within

7:10

the federal judiciary and strip

7:12

a lot of power from Congress and the

7:15

executive branch. And it did so ostensibly on

7:17

behalf of these fishermen who say, we don't

7:19

want to pay for compliance monitors. Federal statute

7:21

doesn't allow the government to make us pay

7:23

for this, even though they've already been made

7:25

whole, they've got all their money back, and

7:28

there's nothing for the court to

7:30

decide. It decides nonetheless. What the

7:33

Supreme Court held in Loperbrite was

7:35

that the Chevron doctrine, which essentially

7:37

said that when a statute is

7:39

unclear, federal courts

7:41

should defer to a reasonable

7:44

interpretation by administrative agencies, is

7:46

no more. That courts do not need

7:49

to defer at all to agencies. They

7:51

can simply decide from the get-go what

7:53

a statute means, regardless of what the

7:55

agency thinks. And Pam,

7:57

let me ask you a version of the same question.

16:00

Kagan dissenting in

16:02

the Chevron case, not simply

16:05

saying that this is a

16:07

massive power grab, never before

16:09

anticipated and shocking in its

16:11

magnitude. I also read this

16:13

as an elegy for

16:15

stare decisis again. This feels like

16:17

the Dobbs dissent again. This is

16:20

the saying to the court, not

16:22

only are you doing something that

16:24

is unbounded in the damage it

16:27

can do, you are also reversing

16:29

precedent willy-nilly because you feel like

16:31

it. Either of you have some

16:33

thoughts on the ways in which sometimes

16:35

I feel like when Justice

16:38

Kagan is angriest, the thing she's

16:40

angriest about is how recklessly

16:42

the court does the thing that it's

16:44

doing that is so damaging. I actually

16:46

don't think this is reckless. I think

16:48

this is purposeful. I don't think

16:50

this is that they don't understand what

16:53

they're overturning. And then

16:55

of course, you know, in Justice Gorsuch's opinion,

16:57

he kind of says, well, we'd

17:00

already gotten rid of Chevron and it

17:02

was dead man walking. So I don't

17:05

know what everybody's so upset about. And

17:07

the answer is that most cases don't

17:09

go to the Supreme Court. Most cases

17:11

are decided by district courts or courts

17:13

of appeals and they were still applying

17:16

Chevron. They were taking it

17:18

seriously and they were giving deference to reasonable

17:20

interpretations by agencies rather than saying, well, I

17:22

recognize, and this goes back to what Mark

17:24

was saying, I recognize reasonable people could differ

17:27

on this, but I just don't like your

17:29

position, so I'm going to impose my own.

17:32

That's what's so troubling about this is

17:34

these are all cases where the agency

17:36

is offering a reasonable definition. Can

17:39

I just add one point that I

17:41

think is so interesting in Justice Kagan's

17:43

dissent, which is she's really candid and

17:45

injects some real politic into this. And

17:48

she calls out the majority for engaging

17:50

in a years long strategy to undermine

17:52

Chevron, right? She says it's true that

17:54

this court has not applied Chevron since

17:57

2016, but that is because it has

18:00

has been preparing to overrule Chevron

18:02

since around that time. That kind

18:04

of self-help on the way to

18:06

reversing precedent has become almost routine

18:08

at this court. Stop applying

18:11

a decision where one should. Throw

18:13

some gratuitous criticisms into a couple

18:15

of opinions. Issue a few separate

18:17

writings like concurrences or dissents, questioning

18:19

a decision's premises. Give the whole

18:21

process a few years, and voila,

18:23

you have a justification for overruling

18:25

the decision. She cites Janice, overruling

18:27

a Bood, she cites Kennedy versus

18:29

Bremerton, overruling Lemon, she cites Shelby

18:31

County. It feels like

18:33

she's sort of pulling back the curtain to invite

18:35

all of us to see what her colleagues are

18:37

up to. And in the

18:39

process, not pretending as though this is

18:42

all purely organic law

18:44

that simply develops through the

18:46

collective genius of nine justices,

18:49

this is a fundamentally political

18:51

endeavor to plant the seeds

18:53

of undermining a decision so that a

18:55

few years down the road, you can

18:57

make it look like it's actually rooted

18:59

in precedent to overturn precedent when that

19:01

is all smoke and mirrors. And

19:04

can I just add something to this, which is, you

19:06

know, you mentioned this earlier, Dahlia, that

19:09

it used to be Justice Scalia was

19:11

the major proponent of

19:13

Chevron deference. And what you're now seeing is

19:15

because of a change in the politics and

19:19

the view that maybe they won't always

19:21

hold the executive branch, but they're going

19:23

to hold the judiciary for a good

19:25

long time, they don't want to defer

19:27

to the executive branch anymore because the

19:29

executive branch may have a Democratic president.

19:33

The courts, at least the Supreme Court, is going

19:35

to be a Republican court for quite a while,

19:37

and they can dismantle a lot of stuff at

19:40

the court that they wouldn't be able to

19:42

dismantle through the political process.

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21:39

want to turn to Grant's past just for

21:41

a minute, because it's going to get lost

21:43

in the blizzard of what

21:46

came Friday and what's coming

21:48

Monday. And yet it

21:50

seems like an incredibly important case

21:52

for some of the reasons that

21:54

Pam started with up top. You

21:57

know who won big again this term is

21:59

the billionaire punish

24:00

homeless people for being homeless. He claims

24:02

that what they're really being punished for

24:04

is sleeping outside, which is a kind

24:06

of conduct that can be punished. And

24:09

he pretends to be empathetic towards the

24:11

unhoused, but in reality just leaves them

24:13

at the whims of a majority that

24:15

despises them and doesn't want them nearby

24:18

or doesn't want to have to see

24:20

or deal with them. I

24:22

think, again, it's a really unfortunate

24:24

decision. The effect that

24:26

it will have immediately on homelessness won't

24:28

be huge because all these decisions were

24:31

tinkering around the edges, but it does

24:33

strip homeless people of the one constitutional

24:35

protection that they had from being targeted

24:37

and fined and jailed as the residents

24:39

of Grant's Pass were just because they

24:42

could not afford to have a roof

24:44

over their heads. And

24:46

speaking of stare decisis, Justice

24:48

Thomas has a concurrence

24:51

in which he says that

24:53

the court should reverse its

24:55

1962 decision in Robinson against

24:57

California because he doesn't think

24:59

it's cruel and unusual punishment

25:01

to punish somebody for their

25:03

status. That is, at

25:05

least the majority understands you can't simply

25:07

make it a crime to be homeless

25:09

standing alone. Under Justice Thomas's

25:11

version of things, you could make it a

25:13

crime to be homeless, even

25:16

if you weren't asleep, just being homeless could

25:18

be a crime. And, you know,

25:20

the kind of gratuitous cruelty of that

25:22

coming from somebody who has an RV

25:24

he can sleep in in a Walmart

25:26

parking lot if he doesn't have a

25:28

place to put a roof over his

25:30

head. Not everybody has an RV

25:32

given to them by their friends. AMT.

25:35

Or a mega yacht or, you

25:37

know, all the fun good times

25:39

on planes to go salmon fishing.

25:42

I did think about you, Pam,

25:45

as I read Justice Gorsuch's opinion,

25:47

because there's so much, they're good

25:49

Marshall, they're good Marshall, they're good

25:51

Marshall in there. And again, I

25:53

think Mark's point is that Justice

25:55

Gorsuch, in addition to being Western

25:57

guy, really wants to be. sensitive

26:00

to the needs of the

26:03

unhoused guy. And so there

26:05

he is, pages and pages

26:07

devoted to Justice Marshall. And

26:10

it's such an interesting move

26:12

to do what feels to me as

26:15

well like gratuitous cruelty, and then to

26:17

dress it up as I'm just like

26:19

in a long line of people who

26:22

are worried about civil rights. Yeah,

26:25

this reminds me so much of that

26:27

amazing Sarah Vowell piece about

26:29

people who compare themselves to Rosa

26:31

Parks. And the

26:34

idea that upholding a law that

26:36

makes it a crime for homeless

26:38

people to fall asleep puts

26:40

you in league with Justice Marshall is

26:43

just amazing. You know, I still remember

26:45

Justice Marshall's very powerful dissent in the

26:48

bankruptcy case that you may remember where

26:50

the court said if you didn't have

26:52

the money to pay the

26:54

filing fee in bankruptcy court, you

26:56

couldn't go bankrupt. And Justice

26:58

Marshall said, like, be real, understand how

27:01

people actually live out there in the

27:03

world. You know, what are homeless people

27:05

supposed to do, especially the

27:07

ones who are homeless because of a

27:09

disability or because of mental health issues

27:11

that we're not treating, or

27:13

because of domestic violence? What are these people

27:15

supposed to be doing? You know, the court

27:17

gives you no understanding of that at all.

27:19

Pam, can I ask you what you made

27:21

of the majority's treatment of Robinson? You mentioned

27:23

that Justice Thomas and his concurrence said the

27:26

court should overturn Robinson. That was the case

27:28

that said it was unconstitutional to

27:30

punish people for their status rather than

27:32

their conduct. It seems like Justice Gorsuch

27:34

and his majority throws a lot of shade

27:36

at it, but then doesn't officially overturn

27:38

it, maybe because a few other justices like

27:40

Barrett said it, oral arguments, in fact,

27:42

we don't want to go that far.

27:44

But it seems like this is an example

27:47

of what Justice Kagan was talking about

27:49

in her dissent in the Chevron case, right?

27:52

In this instance, the court just talks about

27:54

how Robinson was weird and poorly reasoned and

27:56

not built on the original meaning. In a

27:59

few and it seems

28:01

like they've teed it up for reversal.

28:03

And what flows from that, I don't

28:05

know, but do you agree that it's

28:07

at least like pretty ominous how the

28:09

majority treated that precedent? Well, they're not

28:11

super respectful of it, but even Robinson

28:13

was narrowed pretty quickly by the Powell

28:15

decision, which said, you know, being drunk

28:17

in public is not a status. Being

28:20

an addict is a status.

28:23

You know, so Robinson is a case

28:25

about being an addict as opposed

28:27

to using drugs. Powell was a

28:29

case about public drunkenness, and the

28:31

court said, even if you can't

28:33

help being drunk because you're an

28:35

alcoholic, you can be

28:37

prohibited from being drunk in public, and that might be

28:40

true even if you have no place else to go.

28:42

And so Robinson is

28:44

not the most expansive of

28:47

statuses. But

28:49

if you get rid of Robinson, then what's

28:51

to stop some jurisdiction from making it a

28:54

crime to be a gay person in the

28:56

jurisdiction, or being somebody

28:58

with particular, you know,

29:00

particular other traits that

29:03

are connected to your status. And

29:05

Mark, I think you are making the good

29:07

point that this is the one-two punch, where

29:09

the court says, we're gonna

29:11

all but hollow something out, but we're

29:14

not gonna overturn it. And then there's

29:16

Clarence Thomas saying, oh, but I would,

29:19

which is of a piece with the

29:21

move to say, in five years, oh

29:23

my God, this was wholly discredited. We

29:25

just let this husk limp along. So

29:27

I think you're right that that's the

29:29

play. We're gonna link to

29:32

a recent episode of What Next? in

29:34

the show notes, where Mary Harris spoke

29:36

to a doctor who takes care of

29:39

the unhoused community in Grants Pass. But

29:42

I wanna listen for one minute

29:44

to Justice Sotomayor at oral argument

29:46

in Grants Pass. She's talking

29:48

to Thane Evangelis, Council for

29:50

the City, and let's just

29:52

listen to her for one minute. We

29:54

think that it is harmful for

29:57

people to be living in public

29:59

spaces on streets and in. parks,

30:01

whatever bedding materials when humans are

30:03

living in those conditions. We think

30:05

that that's not

30:07

compassionate and that there's no dignity

30:09

in that. Oh, it's not, but

30:11

neither is providing them with nothing

30:13

to alleviate that situation. This is

30:15

a difficult policy question, Justice Sotomayor.

30:17

It is. Where do we put

30:20

them if every city, every village,

30:22

every town lacks

30:25

compassion and passes a

30:27

law identical to this? Where

30:30

are they supposed to sleep? Are they supposed

30:32

to kill themselves, not sleeping? And

30:35

I think I want to say that

30:37

Justice Sotomayor, you know, there's lots of

30:39

talk, you know, she's the people's justice.

30:41

She's constantly giving voice to

30:44

those who have no power. But

30:46

I just want to point out

30:48

one of the things that I

30:50

found incredibly striking in her dissent

30:54

is she's not just talking about,

30:56

you know, the homeless as real

30:58

people. She is also

31:00

saying, I think, that

31:04

people become homeless because of decisions

31:06

taken by government. And she says

31:08

this, people become homeless for many

31:10

reasons, including some beyond their control,

31:12

stagnant wages and the lack of

31:15

affordable housing can mean people are

31:17

one unexpected medical bill away from being

31:19

unable to pay rent. She says, you

31:22

know, individuals with disabilities,

31:24

immigrants, veterans face policies that

31:26

increase housing instability, natural disasters

31:28

play a role. She talks

31:30

about people who've lost housing

31:32

because of climate events such

31:35

as extreme wildfires across the

31:37

state, floods in coastal areas,

31:39

heavy snowstorms, mental and

31:41

physical health challenges. I almost read her

31:43

dissent. Tell me if I'm over reading

31:45

it as sort of

31:47

like you dismantle the administrative state.

31:50

You disable the government from

31:53

dealing with climate and housing

31:55

and mental health and health

31:57

generally, you put a. thumb

32:00

on the scale against the regulatory

32:02

state, you are going to have

32:05

more of this, not less. And

32:07

in some ways it feels like

32:09

this is almost a callback to

32:12

the entire attack on the administrative

32:14

state and government and also the

32:16

attack on efforts to do away

32:19

with rich people who win

32:21

all the time. And it's all bundled

32:23

up in this kind of very, very

32:26

deeply physicalized recitation

32:29

of what it is to be homeless and

32:31

why you get there. Absolutely. I

32:34

mean, these things are all connected with

32:36

each other, right? If

32:38

you don't have social services, think

32:41

about the case that didn't go

32:43

awry, the Moore case from a

32:45

couple of weeks back, where they

32:47

wanted to essentially prevent taxation on

32:49

wealth, right? That was what the

32:51

attempt was in that case, it

32:53

failed. But this is an attack

32:55

on the modern social welfare state

32:57

across the board. And

32:59

it's no coincidence that Justice Sotomayor is the

33:01

only justice who has a disability, right? Who

33:03

understands what it means to

33:05

have to try to deal with a

33:08

physical issue while not having shelter. And

33:10

she goes out of her way to

33:12

cite a really wonderful brief by the

33:14

Disability Rights Education and Defense

33:16

Fund that talks about how only a tiny,

33:19

tiny percentage of shelters in this country have

33:21

accommodations for people with disabilities. Depending on how

33:23

you count, less than 1% are

33:26

accessible for wheelchair use. And so for many

33:28

of these people, they just cannot stay in

33:30

the few shelters that may or may not

33:32

be available on any given day. And I'll

33:35

just note, she mentions the climate crisis. She

33:37

puts out the foreground. She says, some of

33:39

these people are homeless because of the climate

33:41

crisis hitting Oregon and creating wildfires and flooding

33:43

and other anomalous weather events.

33:45

Well, what is causing the climate crisis,

33:48

right? It's emissions that the Supreme Court

33:50

is preventing the government from limiting. So

33:52

I absolutely agree. It's all woven together

33:54

in a really masterful way. And I

33:56

saw a lot of conservative commentators pouncing

33:59

on Sotomayor saying, you know, how dare she

34:01

bring all of this stuff into this opinion that's

34:03

not about law. It very much is about law

34:05

when it's the majority that's enabling the dismantlement of

34:07

all of the legal structures that are supposed to

34:09

protect us, all of us from those harms.

34:12

I mean, it's really as if Justice

34:15

McScrooge has become the justice. Are there

34:17

no workhouses for these people? You

34:19

know, it just, we're

34:21

going back to the 19th century as fast

34:23

as the Supreme Court's feet

34:25

will take us there. Right. And Justice

34:28

Gorsuch with a little nod

34:30

to private charity and the

34:32

place of religious private charity

34:34

because that's always the

34:36

answer to all things. Where you may

34:39

not be able to get accommodations if

34:41

you don't support that religion, subscribe to

34:43

that religion, and attend religious services. Not

34:45

so beneficent when you look at the

34:47

rules that those private charities actually impose

34:50

on people. Let's talk

34:52

about Fisher for a minute

34:54

because this coupled together with

34:56

the immunity case becomes the

34:58

sort of last gasp of

35:00

will there be accountability for

35:02

January 6th. And

35:04

the court certainly narrowed the federal obstruction

35:07

statute that had been used to charge

35:09

at least 350 January

35:11

6th defendants. It's

35:14

formed a piece of special counsel,

35:16

Jack Smith's indictment of Donald Trump

35:19

in the election subversion case.

35:22

Mark, the statutory question here is

35:25

eye-crossingly complicated, but I'm

35:27

going to ask you to unpack it for a minute

35:29

because this does seem

35:31

at minimum like if you

35:33

read the obstruction statute, the

35:35

way the majority does, a

35:39

pretty qualified win for

35:41

the January 6th enthusiastic

35:43

adjacent community. So the court

35:45

here is dealing with a statute that's been used to charge some 350

35:47

January 6 defendants and

35:50

it's an obstruction statute that was enacted in

35:52

the wake of the Enron scandal. And

35:55

it targets anyone who corruptly

35:57

obstructs an official proceeding. or

35:59

attempts to do so. And

36:02

that language seems pretty sweeping, and the

36:04

Justice Department has interpreted it that way

36:06

to secure convictions of many, many J6ers

36:10

who interrupted the counting of electoral votes

36:12

on that day, or who attempted to

36:14

do so by invading the Capitol. What

36:16

the Supreme Court did on Friday was

36:19

significantly narrow the statute, but it did

36:21

so in a way that I don't

36:23

think will undermine a huge number of

36:26

convictions or prosecutions. What the court did

36:28

was say, look, before it talks about

36:30

obstruction, this statute is

36:32

talking about the crime of altering,

36:34

destroying, mutilating, or concealing records, documents,

36:37

or other objects, with the intent

36:39

to impair their integrity or availability.

36:41

And so Roberts sort of graphs

36:43

that first provision onto the second

36:45

one, kind of Frankenstein's them together,

36:48

and says, we have to look

36:50

at this statute as one unified

36:52

whole, even though these are really

36:54

two separate provisions within the same

36:57

law. There's the part about official

36:59

records, and then there's the part

37:01

about the official proceeding. But he

37:03

says they're connected, so this law

37:05

only permits conviction if the individual

37:08

obstructed the official proceeding or attempted

37:10

to, because they were trying to

37:12

limit or impair or alter some

37:16

kind of official object or

37:18

item or paperwork or thing,

37:21

and as Justice Jackson points out in

37:23

a concurrence, that could mean the actual

37:25

certificates of electoral votes here. So it's

37:27

bad because it means that this guy's

37:30

conviction has to be subject

37:32

to review, and I think some other

37:34

folks who were charged under the statute

37:36

are gonna have a second bite at

37:38

the apple, but it's not, I think,

37:40

a nightmare because it does leave open

37:42

the possibility that they could still be

37:44

found guilty of trying to impair the

37:46

counting of those electoral certificates. You

37:49

just have to tie this more closely

37:51

to the physical presence of the certificates

37:53

and the defendant's alleged effort to make

37:55

them unavailable. It's very technical. I'm a

37:58

little baffled. as to why Justice Jackson

38:00

joined the majority, where Justice Barrett wrote

38:02

the dissent joined by Justices Sotomayor and

38:04

Kagan. It kind of fractured the court,

38:07

but I feel like it does take

38:09

a middle ground that ultimately won't be

38:11

fatal to a lot of these cases

38:14

setting Trump aside. Pam, I am curious

38:16

what you think. There's been a lot,

38:18

a lot of efforts on Friday morning

38:20

to say this is in no way

38:23

a harbinger of what the court is

38:25

thinking about Donald Trump. And there's in

38:28

no way is this signaling

38:30

that Donald Trump is off the

38:33

hook. Do you read it as

38:35

good news for Donald Trump? Or

38:37

do you read it as qualified,

38:40

uncertain, we have no idea

38:42

how this implicates Donald Trump?

38:45

Well, it's good news for Donald Trump

38:47

in that as Mark was saying, in

38:49

order to keep those two counts in

38:51

the four count indictment, the

38:54

special counsel is going to have

38:56

to tie much more closely together

38:59

Donald Trump's activities and the

39:01

attempt to impair the availability

39:04

of various records. Now, I think

39:06

that can be done because among

39:09

other things, he's saying use these

39:11

certificates, not these certificates. And that

39:13

is talking about a document and

39:16

trying to impair the document's integrity

39:19

or its availability. If you say don't

39:21

count these, that seems to fall both within

39:23

1512 C1, which

39:26

is the initial provision and within the 1512

39:28

C2, otherwise

39:30

obstruct, influence or impede. So I don't

39:33

think it's an off the hook for

39:35

him. But what it does mean is

39:37

it's going to take more time. There's

39:40

going to have to be more time spent

39:42

on this. And we already know that the

39:44

Supreme Court has slow walked the Donald Trump

39:46

immunity to the point where there's not going

39:48

to be a trial before the election. We're

39:51

taking a short break. This

39:53

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40:29

much legal news is coming at us

40:31

right now, whether it's Donald Trump or

40:34

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40:36

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40:38

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40:40

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40:47

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40:49

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40:51

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40:53

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40:56

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40:58

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41:00

reverberate all around America. And What Next

41:03

is going right to those who are

41:05

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41:07

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41:11

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41:14

need life saving abortion care. What

41:16

Next is asking how will these rulings

41:18

change lives and whose lives are

41:21

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41:23

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41:25

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41:27

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41:30

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41:40

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41:54

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41:56

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41:58

out what's next. follow

42:00

what next now and listen wherever

42:02

you get your podcasts. We're

42:11

back with Mark Stern and Professor Pam

42:13

Carlin of Stanford Law School. Do

42:16

either of you want to opine on

42:18

Mark's open question, which is why we

42:21

see Justice Jackson throw in

42:23

with the Chief Justice and why Justice

42:25

Barrett throws in with liberals

42:27

in this split? I mean, Justice

42:29

Jackson is kind of interesting, has

42:31

come down on the government side

42:33

rather than the criminal defendant side

42:35

in several cases this year. This

42:37

is not one of them. I

42:39

mean, interestingly, she's been on both

42:41

sides on criminal cases, which I

42:43

think people might not have expected

42:46

given her background as a federal defender.

42:48

First of all, I think that for Justice

42:51

Barrett, this was an easy textual question and

42:53

I think she's absolutely right. You know, the

42:55

majority's decision is really animated by this fear

42:57

of, well, if we interpret the law this

43:00

broadly, then what will happen next? And we

43:02

heard that during oral arguments, right? With Justice

43:04

Sam Alito, for instance, saying, but what about

43:06

protesters at the Supreme Court? But what about

43:09

climate protesters blocking the roads? Are you going

43:11

to charge them under this statute? I read

43:13

a lot about it. What about anti-abortion protesters?

43:16

We have to protect them. Exactly. I

43:18

read a lot of that fear

43:20

is animating the Chief's opinion. I

43:22

think that what Justice Jackson ended

43:24

up doing was imposing not necessarily

43:26

like a limit, but a perspective

43:28

on the majority that will prove

43:30

helpful for the government below. I

43:32

think you'll see the government citing

43:34

her concurrence a lot because she

43:37

winds up saying, you know,

43:39

yes, it can't just be obstruction.

43:41

It has to tie back to

43:44

some records, documents, or objects, but

43:46

those could be related to the electoral

43:48

votes themselves. And she goes out of her

43:50

way to say, Mr. Fisher's

43:52

conduct may well have involved the

43:54

impairment of those things. And so

43:56

he could still be tried

43:59

and convicted. on this particular charge.

44:01

It just hasn't been proved to her

44:03

satisfaction yet. So I feel like she's

44:06

kind of splitting the baby here a

44:08

little bit, and I don't hate that

44:10

she did it, but I do think

44:12

that if she wanted to take the

44:15

textualist perspective and wanted to embrace her,

44:17

you know, criminal defense background, Justice Barrett's

44:19

dissent was right there, and it's a

44:21

really persuasive dissent just on the plain

44:24

text of the statute. You have to

44:26

bring in these policy concerns, I think,

44:28

in order to get where the majority

44:30

lands. I want to ask

44:32

both of you a question that is

44:36

sort of gnawing on me, and there's

44:38

not much of me left on

44:41

NodUpon today, but there is one

44:43

thing that is sitting

44:45

funny with me, and that is, not

44:47

so very long ago we talked about

44:49

Fisher and the Trump

44:52

immunity case as an opportunity to

44:54

have a full-throated renunciation from the

44:56

Chief Justice and the Supreme Court

44:59

of the actions of

45:01

January 6th. And not

45:03

very long ago, I think a lot of us

45:05

thought that whatever it is that the

45:08

Supreme Court thinks about politics and

45:10

Trump and policy and what's going

45:12

on in democracy, blah, blah, blah,

45:14

at minimum activities

45:16

that happened across the street

45:19

from the court that were

45:21

really chillingly violent and lawless,

45:24

warranted some kind of statement from

45:27

the court that this is too

45:29

much and this is too far.

45:31

And I read the Chief Justice's

45:34

pretty bloodless recitation of what happened

45:36

on January 6th as some

45:38

kind of signal that the

45:41

thing that I thought was

45:43

determinative for most,

45:45

if not all, of the justices

45:47

on the court may just be

45:49

determinative for me. What

45:52

do you make of John Roberts

45:54

seeming to be like, meh? As you

45:56

say, Pam, more worried about old ladies

45:58

handing out an anti-abortion pamphlets

46:02

than he is about January 6th. They are

46:04

avoiding talking about January 6th to the

46:06

extent they can. I mean, there was

46:08

no discussion of January 6th at all

46:10

in Trump against Anderson. I mean, there

46:12

was in the dissent, which came

46:15

out pretty strongly in favor of saying, yeah, there

46:17

was an insurrection. The only question is really whether

46:19

Donald Trump should be disqualified as

46:21

a result of it. I

46:24

think, you know, I just think they

46:26

do not care. I think it's interesting

46:28

to bring up Anderson and look at

46:30

the split in that case, which was

46:32

5-4 in part with Barrett ultimately voting

46:34

on the same side as the liberals,

46:36

not to go as far as the

46:38

majority did to shield Trump from getting

46:40

disqualified, right? And Barrett didn't explain a

46:42

lot of her reasoning. But

46:45

if you look at her dissent in

46:47

Fisher, I certainly sense more discomfort about

46:49

January 6th from her dissent than I

46:51

do from the Chief Justice's majority opinion.

46:53

And I wonder if we can tie

46:55

these two votes together and that when

46:57

January 6th comes to the court, perhaps

47:00

Barrett is a little bit more icked

47:02

out by the, oh, you know, violent

47:04

attempted insurrection than her male colleagues to

47:06

her rights. I don't want to give

47:09

her too much credit. This is just

47:11

a hypothesis. We'll see what happens in

47:13

the immunity case. But it

47:15

does seem like the men are

47:17

willing to just blaze past that

47:19

and do whatever is necessary to

47:21

help Trump and the number of

47:23

J6 defendants. Barrett's not been there

47:25

with them, not in Anderson about

47:27

Trump, not here about some of

47:29

the lower level January 6th defendants.

47:31

So like we'll see, but I

47:33

don't sense that same agnosticism toward

47:35

January 6th from Justice Barrett that

47:37

I do from the guys. I

47:40

want to leave us all

47:43

with this lingering question of

47:46

all the ways that we are

47:48

going to talk this weekend about

47:50

Thursday night's presidential debate, which Pam

47:52

blissfully didn't subject herself to, Mark

47:54

and I did. It sort

47:57

of misleads and I think misdirects

47:59

the conversation. about how government actually

48:01

works. And then you

48:03

get into like which of these

48:05

two guys is in fact

48:08

like setting policy for veterans and

48:10

setting climate policy and immigration policy.

48:13

And of course, that completely obscures

48:15

the fact that the long march

48:18

toward deregulation, doing away with meaningful

48:20

voting rights, threats to the separation

48:22

of powers really is the story,

48:25

I think much more so than

48:27

the presidential debate of what happens

48:29

to democracy when everybody's screaming at

48:32

Jake Tapper. So Mark, I wonder

48:34

if, can you just help me

48:38

reframe for people who are

48:40

very, very, very consumed with

48:42

the theater of the CNN

48:44

presidential debates, the enormity of

48:46

what is happening between jerkacy

48:49

and as Pam says,

48:51

bump stocks and the decision

48:53

on Friday in Loper

48:55

Bright and how that

48:58

is in fact how government is

49:00

done. I think it's so illuminating to

49:03

have had Loper Bright come down the

49:05

morning after that debate, because

49:07

Joe Biden did not

49:09

perform well in that debate. And

49:11

the reaction, especially on the left,

49:13

was terror, a lot of

49:16

fear about whether this guy could

49:18

still serve as the chief executive of

49:20

the United States. And

49:23

I understand those

49:25

concerns obviously. And

49:28

yet, I think that this

49:30

pop vision of the president as

49:32

essentially running the country is

49:35

so far removed from how government

49:37

actually works that at a certain

49:39

point it is actively misleading us

49:42

into putting too much stock in,

49:44

say, the performance of a candidate

49:46

on a debate stage. The government

49:49

is vast. It is largely run

49:51

by a bunch of agencies, which

49:53

you probably haven't heard of, that

49:56

are staffed with experts with deep

49:58

knowledge and experience in a particular

50:00

subject matter, with lawyers who affirmatively

50:02

want to make government work, and

50:05

with political appointees who, yes, may

50:07

be ambitious, may have, you know,

50:09

their own partisan aims, but are

50:12

in charge of a really important

50:14

functioning part of government and are

50:16

accountable to the president who's accountable

50:19

to the people. We never talk

50:21

about them except when there's some

50:23

ridiculous scandal by some secretary and

50:25

he or she has to resign.

50:28

And yet they are the ones

50:30

who are interpreting and executing the

50:32

laws day in and day out.

50:35

They are the ones approving or

50:37

rejecting applications for new drugs. They

50:39

are the ones targeting and limiting

50:42

pollution from some dirty factory in

50:44

West Virginia that's creating a cancer

50:46

cluster in a majority black community.

50:48

They are the ones who are

50:51

making sure that we are given

50:53

the full scope of protections that

50:55

Congress aimed to give us when

50:58

enacting broadly worded laws. That's

51:00

how government works. And all of

51:02

that is anathema to the Republican

51:05

party and Donald Trump. Donald Trump's

51:07

key goal was dismantlement of the

51:09

administrative state. Steve Bannon said it

51:11

himself, and it's a fundamental part

51:13

of project 2025. They want to

51:16

stop government from working because everything

51:18

I just described, it's bad for

51:20

billionaires. It's bad for polluters. It's

51:22

bad for industry that wants to

51:25

get away with dumping pollution into

51:27

our waters, with selling drugs that

51:29

aren't safe, with making a ton

51:31

of money and taking those ill-gotten

51:33

gains and sheltering them from taxation.

51:36

And we are still

51:39

talking about Biden stuttering on a

51:41

debate stage instead of how each

51:43

of these men would staff and

51:45

run the sprawling government

51:47

that they would ostensibly be at the

51:49

head of. If we had

51:51

a healthier conversation about this, we

51:53

would be talking so much more

51:56

about Loperbrite than we would about

51:58

the debate on Thursday night. But

52:00

because most Americans, I fear, still

52:03

fundamentally misunderstand how the wheels of

52:05

government truly turn, we're obsessing about

52:08

Biden's sore throat and not talking

52:10

about one of the biggest power

52:12

grabs that the judiciary has ever

52:15

undertaken. And just to highlight

52:17

something that Mark said, what

52:19

Mark is actually saying in a

52:22

way is, whichever candidate wins this

52:24

election, the Supreme Court is going

52:26

to be there to dismantle the

52:28

regulatory state. And that's what the

52:30

real story of this is, which

52:33

is, underneath, even

52:35

if a Democratic president, even

52:37

if a vigorous Democratic president,

52:39

even if a 39-year-old Democratic

52:42

president were elected, the Supreme

52:44

Court might be there to

52:46

kneecap, attempts to

52:48

deal with climate change, attempts

52:51

to deal with securities fraud

52:53

and frauds that affect people's

52:55

pension plans, with attempts to

52:57

deal with medical emergencies and

52:59

MTALA. The Supreme Court can

53:02

dismantle all of that without

53:04

regard to who's in the

53:06

White House. And that's

53:08

what the big story of this

53:10

last week at the Supreme Court

53:13

has been. Professor Pam Carlin is

53:15

co-director of Stanford Law School Supreme

53:17

Court Litigation Clinic, and she has

53:19

served among other places as assistant

53:21

counsel and cooperating attorney for the

53:23

NAACP Legal Defense Fund, and twice

53:25

as a deputy assistant attorney general

53:27

in the Civil Rights Division at

53:30

the Department of Justice. And Mark

53:33

Joseph Stern covers the courts, the

53:35

law, elections, the

53:37

end of democracy, and thankfully not a

53:39

president who has a sore throat. That

53:41

is not your beat, Mark. Thank God.

53:43

Thank you both for being here. I

53:45

guess we are going to put

53:48

on our crash helmets and wait for whatever

53:50

comes on Monday and the end of the

53:52

term. But until then, I am so grateful

53:54

for both of your big brains and your

53:57

voices. Thanks for being here. There's no one

53:59

else I drive. I'd rather sit Shiva with

54:01

Dahlia. Yeah, some sable, some

54:03

sturgeon, maybe a little sturgeon, maybe

54:05

a little cream cheese. And

54:14

that is a wrap for this episode of

54:17

Amicus. Thank you so much for listening in,

54:19

and thank you so much for your letters

54:21

and your questions. You can keep in touch

54:23

at amicus at slate.com, or

54:26

you can find us at

54:28

facebook.com/Amicus podcast. Sara

54:30

Burningham is Amicus's senior producer. Our

54:33

producer is Patrick Fort. Alicia Montgomery

54:35

is vice president of audio at

54:38

Slate. Susan Matthews is Slate's executive

54:40

editor. And Ben Richmond is

54:42

our senior director of operations. We'll

54:45

be back with another episode of

54:47

Amicus next week, probably something on

54:50

Monday for our plus members. Please

54:52

join if you don't want to

54:54

miss out, slate.com/Amicus plus, or

54:56

try free at the

54:59

top of our show page if you're

55:01

listening in Apple podcasts. Until then, let's

55:03

all hang on in there.