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Like a good neighbor, State Farm is there. It's

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on! Hi,

1:27

everyone from New York Magazine and the Vox Media

1:29

Podcast Network. This is on with Kara Swisher and

1:32

I'm Kara Swisher. This time of

1:34

year is always big for the Supreme Court, but

1:36

usually the news is focused on the cases the

1:38

justices are deciding. This year,

1:40

the justices themselves have been in the

1:42

limelight for perceived ethics violations. Personally,

1:46

I don't think they're perceived. They're right there.

1:48

Justices accepting lavish gifts and trips worth hundreds

1:50

of thousands of dollars and in some cases

1:53

millions. Flying flags associated

1:55

with January 6 sympathizers outside

1:57

their homes and agreeing with the

1:59

idea that America should return to

2:02

a quote, place of godliness on

2:04

secret recordings. But the

2:06

Supreme Court doesn't have an enforceable

2:08

ethics code, just a self-determined code

2:10

of conduct. Democrats have tried to

2:12

get the Supreme Court Ethics, Refusal

2:14

and Transparency Act passed, but last

2:16

week Republicans shot it down in

2:18

the Senate. So today I

2:20

want to talk about ethical lapses and also

2:23

the cases and what it means for the

2:25

future of the highest court in our democracy.

2:28

I'm joined today by a panel of experts with deep

2:30

ties and knowledge of the judicial system.

2:33

Nancy Gertner, a lecturer at Harvard

2:35

Law and a former US District

2:37

Court Judge for the District of

2:39

Massachusetts. Kedric Payne, Director of Ethics

2:41

at the Campaign Legal Center, a

2:43

nonpartisan organization that advocates for voters

2:45

rights. And David Taitl, a former

2:48

DC Circuit Court Judge and the

2:50

author of a new book titled

2:52

Vision, a memoir of blindness and

2:54

justice. Our question for this

2:56

episode comes from Roberta Kaplan, one of the

2:58

most accomplished lawyers in the country and

3:00

one of its most famous these days.

3:02

She's argued before the Supreme Court in

3:05

the landmark United States v. Windsor case

3:07

that established the right to gay marriage.

3:09

Thanks, Robbie. And more recently, she led

3:12

the legal team representing E. Jean Carroll

3:14

in her successful lawsuits against Donald Trump.

3:17

This interview was recorded on Tuesday,

3:19

June 18th. It publishes on Thursday

3:22

morning, June 20th. Only a few

3:24

hours after its release, the Supreme

3:26

Court is likely to announce decisions

3:28

on some cases, including ones we

3:31

discuss in this episode. Judge

3:45

Gertner, Mr. Payne, Judge Taitl, thank you

3:47

for joining me today. The Supreme

3:50

Court heard 61 cases this term, and

3:52

while we don't have time to go through all of them,

3:54

I do want to hit the big ones. We'll start with

3:56

the social media cases and with the Trump case, we'll have

3:58

plenty of others to get having cases to talk about

4:01

in between. And we'll talk a little bit

4:03

about Judge Taitel's new book, which talks

4:05

a lot about cases. So

4:07

what is the most consequential case before

4:09

the Supreme Court this term, in your

4:11

opinion, and why? Let's start with you,

4:13

Judge Gertner, then Kedric, and

4:15

then Judge Taitel. There's no

4:18

question that the most consequential one for

4:21

our current politics is the question of

4:23

whether or not former President Trump is

4:26

immune from these prosecutions and what the

4:28

scope of that is. In

4:31

the ordinary case, a judge might

4:33

say, what judging would be about would be to

4:35

say, I don't know what the meets and bounds

4:37

of immunity are in

4:39

every situation, but it doesn't apply

4:41

to January 6

4:44

accusations. And instead, it

4:46

appears that the Supreme Court is interested.

4:49

Judge Gorsuch said he was writing an opinion for

4:51

the ages, which sounds more

4:53

legislative than judicial to me. You're

4:57

writing an opinion about this case.

5:00

And this case suggests overturning

5:02

an election, allegations with respect

5:04

to false electors, et cetera,

5:06

which is not every

5:10

conceivable situation which a president would

5:12

be immune. But certainly, this situation,

5:14

a president shouldn't be immune. All

5:17

right, so this is the immunity case. Kedric? I

5:19

agree completely. I think the immunity case will

5:21

be the most consequential. And it will be

5:23

consequential even for people who don't understand the

5:25

nuts and bolts and complicated

5:27

legal issues. It's simply because it's going

5:30

to be a divisive determination.

5:32

And people are questioning

5:35

whether or not this court is a

5:37

legitimate court or court that is bound

5:40

by ethics rules. And therefore, that lack of

5:42

confidence in their decision is going to cause

5:44

even more problems, no matter what they decide.

5:47

Judge Taitl? I actually think

5:49

there are many consequential cases. And it's

5:51

hard for me to rank them. Just

5:55

to name three that I think

5:57

are equally consequential. I

6:00

think the South Carolina racial

6:02

gerrymandering case is important because it

6:04

makes it virtually impossible to bring

6:06

such cases. I think last

6:08

week's bump stock cases is

6:11

deeply consequential for the country. And

6:13

the forthcoming case involving Chevron

6:16

deference and administrative agencies is

6:19

also consequential. And these are consequential not

6:21

just for the impact they have on

6:24

the people, but for the role of the

6:26

Supreme Court in our society. Judge

6:28

Taitel, you just came out with a wonderful book about your

6:30

long career in law and the bent. It's

6:33

called Vision, a Memoir of Blindness and Justice.

6:35

You write extensively about the Internet and the

6:38

FCC net neutrality cases you presided over. It's

6:40

interesting that you differentiate between what you would do as

6:43

a policymaker versus what you had to do as

6:45

a judge. Talk about that a minute

6:47

because it's a great example of your thoughts on the

6:49

judicial system overall. Yes. I

6:52

say in my book, and I've always thought this is

6:54

true, and I suspect Judge Gertner would

6:56

say exactly the same thing. One

6:58

of the hardest things to do as a judge,

7:01

and I think the sign of a judge, is

7:03

to be able to produce an opinion that

7:05

produces a result that's different than

7:07

you would have if you were a member of Congress. And

7:10

that's because judges and members of

7:12

Congress have different jobs. Judges

7:15

are not policymakers. Judges apply the law

7:17

to the facts. You

7:19

mentioned the net neutrality cases. Just

7:21

by the luck of the draw, I was on all

7:24

three for

7:26

the DC circuit. Had

7:28

I been a member of the FCC, I

7:31

would have voted for, just as a

7:33

matter of policy, for maximum open

7:35

Internet. That's what I believe is the

7:38

best for our country. Yet, in the

7:40

first two opinions, I wrote

7:42

opinions striking down the FCC's

7:44

efforts to ensure net neutrality

7:46

because the FCC, in

7:49

both cases, had not complied with the

7:51

statute. So you're judging the

7:53

law, not what you would have thought? Yeah.

7:56

Yes. The difference between

7:58

judging and being a policymaker. All

8:00

right, let's start with the social media cases,

8:02

which I'd like to focus on. Texas and

8:04

Florida have both passed laws that limit social

8:06

media companies' ability to moderate content on their

8:08

platforms. The Supreme Court is looking at their

8:10

constitutionality in what could be one of the

8:12

most important rulings of the case on the

8:14

intersection of the internet and the First Amendment.

8:16

But a majority of the justices seem inclined

8:18

to strike down the Texas and Florida laws

8:20

just from the case itself when

8:22

it was being argued that bar social media platforms

8:25

were monitoring their own content. Talk

8:27

about how the justice system, again, is

8:29

not a legislator. The problem is

8:31

the problem of the internet from the

8:33

beginning, which is to say, is the

8:36

internet like a public platform?

8:38

Is it like the public

8:40

square? And it

8:43

should be regulated or not regulated as

8:45

a public square is. Is

8:48

it a public utility?

8:50

Or is it

8:52

essentially a private platform which

8:54

enables them to moderate in

8:56

the ways that they want?

8:58

So it involves sort of

9:00

fundamental characterizations of this extraordinary

9:02

technology. Yeah. So

9:05

let's move to guns then. The court has two

9:07

gun cases this term. It already rejected the Trump

9:09

ban on bump stocks. And now it will decide

9:12

whether or not the federal government can

9:14

ban someone who has a domestic violence

9:17

restraining order against them from owning guns.

9:19

Judge Gertner, the Roberts Court has already

9:21

severely limited legislators' ability to pass gun

9:23

control laws, but letting domestic abusers own

9:25

guns might be a bridge too far

9:27

even for them. How come? Well,

9:30

I mean, aside from the fact

9:32

that it is, in fact, categorically a bridge too

9:35

far. I love

9:37

the way you put that, a bridge too far even for them. There's

9:41

arguably a difference between status

9:43

issues and actual conduct. And

9:45

so this is someone with

9:47

a record of actual conduct.

9:49

It seems to me that

9:53

should be disqualifying. Do I think that they will

9:55

do that? I actually think that they will because

9:57

they have to come up with at least a

9:59

standard. that allows for some

10:01

limits to their otherwise extraordinarily broad jurisprudence

10:03

about guns. In other words, they have

10:06

to say, you put it really best

10:08

about a bridge too far, they have

10:10

to say that this doesn't make sense.

10:14

The status issues that I was talking

10:16

about, going up through the courts

10:18

now, are challenges to felon

10:21

in possession of a firearm

10:23

cases, where the status of

10:25

having been convicted of a

10:27

felony before is disqualifying, and

10:29

courts are all over the map

10:31

on that. Again, I would distinguish

10:33

between status issues and conduct

10:36

issues. You

10:38

are this individual is under a restraining

10:41

order, as I recall. And

10:43

that's a different issue. Arguably,

10:46

it's cabined and restricted so that

10:48

if they are concerned about the

10:50

Second Amendment, I might add that

10:53

I'm not, that they will have

10:55

at least a roadmap

10:57

for limiting this

11:00

doctrine. So it applies to people with prior conduct

11:02

like this. How does that

11:05

square with the precedent conservatives created with the,

11:07

I think it's the Bruin case in 2022,

11:09

where they decided that gun control regulations have

11:11

to be, quote, consistent with the nation's historical tradition

11:14

of firearm regulation? I'm not sure

11:16

that it does, but that's actually the

11:18

core issue with

11:20

originalism, which is that the original

11:22

intent of the Constitution in the

11:24

1700s was decidedly anti-woman. Women were

11:26

not part of the discussion. Women

11:29

were not part of the issues.

11:31

And at the time of the

11:33

Constitution, women were property. So

11:37

they have to come to grips with enforcing

11:40

the original intent of the Constitution

11:42

on the one hand, and modern

11:45

concepts of women's rights.

11:48

And I suspect they won't want to go

11:50

that far. All

11:52

right. Judge Taitel, in another gun case,

11:54

a recent 6-3 decision by the conservative

11:57

majority found that automatic rifles outfitted bump

11:59

stocks don't qualify. as machine guns,

12:01

even though they can fire 400 to

12:03

800 rounds per minute. Justice Sotomayor read

12:05

a blistering dissent from

12:07

the bench where she basically called the conservative

12:10

justices hypocrites. She said, quote, every member of

12:12

the majority has previously emphasized that the best

12:14

way to respect congressional intent is to adhere

12:16

to the ordinary understanding of the terms Congress

12:19

uses. Can you explain what she

12:21

was getting at? And do you agree? Yes.

12:25

First of all, you know, this case is

12:27

different from the other case you were talking

12:29

about because this is not a Second Amendment

12:31

case. This is a

12:33

straight question of interpreting the statute. And

12:36

the question in the case was whether

12:39

a semi-automatic weapon equipped with a

12:41

bump stock was essentially

12:43

a machine gun. And the

12:46

key language in the statute

12:48

was single function of the trigger.

12:50

Those were the words. A

12:52

machine gun is something that fires multiple shots with,

12:54

quote, a single function of the trigger. And

12:57

the majority and the dissenters argued about

12:59

that. Now, my own view about this

13:01

case is that it's a

13:03

little different. I

13:06

agree with the dissent, but my

13:08

view is slightly different. To me, the

13:10

reason why the case is easy, which is

13:12

what Justice Sotomayor said, is that

13:15

congressional purpose was so obvious.

13:18

Congress intended to ban machine

13:20

guns and machine gun-like weapons

13:23

that fire hundreds and hundreds of

13:25

shots per minute. This court adopted

13:27

a cramped view

13:30

of the language of the statute

13:32

that produced a result directly contrary

13:34

to congressional intent. To

13:37

me, that's one of the things that

13:40

it's this court's disrespect for

13:42

Congress and its purpose

13:46

that lies at the heart of many

13:48

of the decisions. The other aspect of

13:50

this case, it hasn't received much public

13:52

attention so far, is the

13:54

courts. This is another example of the court's

13:57

hostility to administrative agencies. Here

13:59

we have. a federal

14:01

agency that has been trying to

14:05

adapt its regulations

14:07

to changing technology. It was clear when

14:09

Congress passed this bill that

14:11

it wanted not just

14:14

existing machine guns banned but anything

14:16

that was adapted or adjusted to function like

14:18

one. And

14:20

the agency here has

14:22

been trying over the years to adjust

14:25

its regulations to changing technology. And

14:27

this court paid no attention to that. So

14:30

here you have the court substituting

14:33

its judgment for that of Congress

14:36

and for the expert administrative agencies.

14:38

And that's characteristic of many of

14:40

this court's decisions. All right, we're

14:42

going to get to that in a second. But,

14:44

Kendrick, let's talk about voting rights. You're a director

14:46

of ethics at the Campaign Legal Center, a nonpartisan

14:49

organization that advocates for voter rights. Let's talk about

14:51

the gerrymandering case that Judge Taitel

14:53

mentioned from South Carolina. Federal District Court

14:55

had found that South Carolina violated the

14:57

Constitution by making race the predominant factor

14:59

when it moved 62% of

15:03

black voters out of a congressional district. South

15:05

Carolina appealed and in a 6-3 decision, the

15:07

conservatives on the court sent the case back

15:09

to the lower courts. And even more importantly,

15:12

it establishes a new precedent for proving

15:14

an illegal racial gerrymander. Kendrick, can you

15:16

explain what happened and what the long-term

15:18

implications are? I mean,

15:20

the long-term implications is that it is clear that

15:22

it is so much harder now to

15:25

have the Voting Rights Act that

15:27

was established so many years ago fulfill its

15:29

purpose, which is we're trying to make sure

15:32

that people are able to

15:34

represent, able to elect the

15:36

representatives of their choice. And

15:38

the regulations that are put in

15:40

place to allow that to

15:42

happen have been solely chipped away by the

15:45

Supreme Court. Chief Justice Roberts

15:48

had a long history of striking down

15:50

voter protections. The Campaign Legal Center even

15:52

published an analysis titled The Supreme Court's

15:54

Role in Undermining Democracy. Judge Taitel

15:56

paced this decision within the context of that

15:58

analysis so we understand larger dynamics at

16:01

play? This case does fit

16:04

into two patterns about

16:06

this court. The first is, you know,

16:09

the extent to which it's chipped away

16:11

at voting rights. It began with Shelby

16:13

County where it invalidated the pre-clearance provisions

16:15

of the Voting Rights Act. That was

16:17

a terrible strike

16:19

against access to the ballot.

16:23

And we know that extensive

16:26

restrictions have resulted from it.

16:29

Then in the Arizona

16:31

case, Brunovich, the court

16:33

made it even harder to bring a section

16:35

two case. That's not pre-clearance, but just a

16:37

straight case. And now we have

16:39

the South Carolina case where

16:42

it made it virtually impossible now to

16:44

bring a racial gerrymandering case. So

16:47

what's characteristic of all these cases is

16:49

limiting the right to vote, but

16:51

also in terms of the judging of the

16:53

court. In all of these

16:55

cases, you have the court

16:58

disrespecting, and I use that word carefully,

17:00

but it's true, disrespecting

17:02

its own precedent. In

17:05

the South Carolina case, the court held

17:07

that the district court's decision was flawed because

17:10

it had not given a presumption

17:12

of good faith to

17:14

the legislature and because the plaintiffs hadn't

17:17

submitted an alternative plan. The

17:19

problem with that is that years earlier,

17:21

the court had ruled just the opposite, that

17:25

there was no presumption of

17:27

good faith. In fact, the court

17:29

owed its deference to the district

17:31

court's finding, not the legislative finding,

17:33

and that plaintiffs did not have

17:36

to file an alternative plan. Justice

17:38

Alito dissented there. He

17:40

wrote the majority opinion here. The only

17:42

difference, the only difference is

17:45

the election and the appointment of three new

17:48

justices to the court. Yeah, that's

17:50

the only difference. Go ahead. Just like

17:52

Dobbs. Just like Dobbs. There's

17:54

your segue. There's my segue. So the court heard two abortion

17:56

reliefs. and

20:01

different tests than the kinds

20:03

of tests that Alito, Thomas,

20:05

Gorsuch, and Kavanaugh are implementing.

20:08

So Justice Barrett may

20:10

well be the key, and Justice Barrett's

20:12

views on abortion are well known, but

20:14

her views on federalism

20:16

may be different. So who

20:19

knows is the issue. But

20:21

I just want to sort of, one larger issue, which is

20:23

I don't

20:25

think that the public fully understands

20:27

what happens when a Supreme Court

20:29

is as disruptive as the Supreme

20:31

Court is. And it's exactly this

20:33

conversation that reflects that. Right,

20:36

absolutely. And I'm going to get to the ethics

20:38

in seven seconds, but the power of the federal

20:40

agencies is what you're talking about, Judge Taitel. You

20:42

mentioned the Chevron case, and the court will decide

20:44

whether or not to overturn a precedent set in

20:46

Chevron. A 1984 case, it

20:49

says courts have to defer to federal agencies

20:51

when they make reasonable interpretations of ambiguously written

20:53

laws. This is one of the most cited

20:55

precedents, but it's fallen out of favor with

20:57

the Roberts Court. Judge Taitel,

20:59

you've dealt with questions around the power

21:01

of federal agencies. Give us examples how the

21:04

ruling that overturns Chevron could affect federal agencies.

21:06

This is beyond disrespect. It's

21:09

hollowing out power, correct? Yes.

21:12

So with the administrative agencies, I do

21:15

have a whole chapter about this in my book. Yes,

21:18

you do. Judicial restraint is what you think.

21:20

Yeah, I believe that we have

21:22

over 400 administrative agencies. I

21:26

think the administrative agencies have been critical to the

21:28

health and safety of the American people. This

21:31

court believes, at least a majority

21:33

of its members seems to believe

21:35

that federal agencies are out of

21:38

control, that they're taking

21:41

actions that are illegal, and that

21:43

they're depriving the people of their

21:46

right to be involved in their government.

21:48

I couldn't disagree more. I've served

21:50

on the D.C. Circuit for 30 years,

21:53

and a majority of my

21:55

cases involved reviewing federal agencies.

21:57

I saw no evidence, none.

22:00

And the Supreme Court hasn't cited any

22:02

that federal agencies are out of control

22:04

when they make a mistake as they

22:07

did in The in net neutrality cases

22:09

we reverse them but

22:11

this court believes They

22:14

believe they need to rein in the agencies

22:17

and the major questions doctrine was the

22:19

first step Agencies don't

22:21

get deference when a when they're dealing

22:23

with an issue that has a major

22:25

impact on the nation or the economy

22:28

And now I suspect that they will take

22:30

the next step and either

22:32

eliminate Chevron deference completely or or

22:35

carve it back Substantially the

22:37

result of this the court says well

22:40

We're doing this because we want to ensure

22:42

that the people are involved in their government,

22:45

right? We want the Congress to do this

22:47

the result of this is that Supreme Court

22:49

is empowering itself Over

22:51

both Congress and the administrative agencies The

22:54

fact is that all of

22:56

these decisions will now be made by

22:58

the unelected court not by the Democratic

23:00

elected Congress Yeah, absolutely The Trump

23:02

immunity case is the only one that could

23:04

impact the election the court will also decide

23:07

whether rioters involved in the Capitol attack On

23:09

January 6 can be charged with federal obstruction

23:11

The case could eliminate half of the federal

23:13

charges against Trump for plotting to subvert the

23:15

2020 election There have been

23:17

calls for both Justice Alito and Justice Thomas

23:19

to recuse themselves from both cases Clarence Thomas's

23:21

wife Ginny attended the stop the seal rally

23:23

on January 6 and was texting with Trump's

23:25

chief of staff Mark Meadows and more by

23:28

the way But Thomas has refused to recuse

23:30

himself just like he has with other January

23:32

6 cases in the past Alito blamed his

23:34

wife Martha And for flying the US flag

23:36

upside down Outside one of their

23:39

homes and an appeal to heaven pine tree flag

23:41

outside the other both are known

23:43

symbols of the January 6 Movement

23:45

although people dispute the second flag

23:48

He wrote to members of Congress. My wife is

23:51

fond of flying flags. I am NOT and also

23:53

refused to recuse himself Kedrick

23:55

you've testified last year at a hearing of

23:57

the Senate Judiciary Committee focus on the Supreme

23:59

Court ethics reform The Supreme

24:01

Court did adopt a new code of conduct after

24:03

that. Talk about what the new

24:05

code has to say about spouses and what do

24:07

you think about the calls for Alito and Thomas

24:10

Derkus themselves in this case? The

24:12

new code has the same principles

24:14

that existed before the Supreme Court

24:17

took this on and actually adopted it, which

24:19

is that you cannot and

24:21

should not be involved in

24:23

a case where your impartiality can be

24:25

reasonably questioned. And that includes financial

24:27

interests or other interests that your spouse may

24:30

have. The problem with this code

24:32

is that it's just not enforceable. So

24:34

you can have the principle, but if there's

24:36

no way to enforce it, then you have

24:38

a problem. Now clearly with the recusal rule,

24:40

it is subjective whether justice

24:43

or the judge is supposed to decide

24:45

themselves. The thing that we

24:47

need for the Supreme Court is a process where you

24:49

know how that will work

24:52

where the justices are required

24:54

to explain why they're not

24:57

recusing, if they decide not to recuse. And

25:00

you can possibly have a third party or

25:02

an ethics, when I say third party, I

25:04

actually mean an entity within the Supreme Court,

25:06

an ethics office that can provide

25:08

some guidance on when you should and

25:10

when you should not recuse. Clearly

25:13

you can't force someone to recuse, but

25:15

there should be guidance to make it

25:17

clear. So there's not this ad hoc

25:19

decision every time someone is asked whether

25:22

it should recuse. And with

25:24

these specific justices, Justice Thomas and Justice

25:26

Alito, it

25:29

does seem that a reasonable person could

25:31

question their impartiality. And

25:33

at least in the case of

25:35

Justice Alito, he provided an explanation.

25:38

Justice Thomas hasn't even done that. So

25:41

that just shows the gap in any

25:43

type of enforcement of this recusal rule.

25:46

Yeah, he hasn't talked about his wife. But talk

25:48

about the ethics reform they changed

25:50

to, the new code of conduct.

25:53

Does it have any teeth then whatsoever? It

25:55

does not. It does not have

25:57

any teeth. And this was almost expected when

25:59

you had... of a situation where there's all

26:02

this pressure for the Supreme Court to adopt

26:04

a code of ethics, we could

26:06

imagine as those people who are trying to push for it, that

26:08

they would simply say, okay, you want a code of ethics? Here's

26:10

one. And it means nothing.

26:12

And they simply, they adopted the

26:16

principles and the canons that apply

26:18

to lower court judges, but without

26:20

any body that can

26:22

follow compliance or make compliance like the lower

26:24

court judges have. Right. So no enforcement

26:27

is what you're saying, correct? That's

26:29

correct. That's correct. And then you see in

26:31

situations where there is an enforcement mechanism and

26:33

it doesn't happen. So with Justice Thomas, there

26:37

are all the allegations and all the

26:39

evidence that he clearly violated financial disclosure

26:41

rules, where the financial disclosure law has

26:43

a trigger where there is a panel

26:45

of judges who can determine that there should

26:47

be an investigation by the department of justice

26:50

when there is a potential violation. And we

26:52

don't even have an investigation just to collect

26:54

the facts related to this very prominent potential

26:58

violation of the financial disclosure law. Yeah.

27:00

So let's talk about judges themselves. The decision

27:02

to recuse is left up to the judges

27:04

themselves. A rule also applies to lower court

27:06

judges. Judge Taitel and Judge

27:08

Gertner, do you think Alito and Thomas

27:10

should have recused themselves from the Trump

27:13

January 6 cases? And what's

27:15

the argument for judges to make this

27:17

decision themselves? Judge Taitel, why don't

27:19

you start? My view as

27:21

a sitting judge was even

27:24

if I could, in my

27:27

own view, objectively decide a

27:29

case, if I thought there was a reason,

27:31

I couldn't because, for example, of my blindness,

27:34

which came up in a case

27:36

involving whether or not the Treasury

27:38

Department should be ordered to produce

27:41

a paper currency that was accessible to the blind. I

27:43

was on that panel. I ended up

27:45

recusing myself from that because even

27:47

though I was confident that I could decide

27:49

the case, I was worried that

27:52

many people's views about blindness is

27:54

weird. And I didn't want

27:57

the integrity of my court's decisions.

28:00

to be adversely affected by

28:02

my presence on the panel. I didn't

28:04

want a really solid

28:06

DC Circuit opinion undermined by people

28:09

who said, well, the DC

28:11

Circuit just ordered the Treasury Department to

28:13

spend hundreds of millions of dollars and

28:15

the judge who wrote the opinion was

28:18

blind. So I recused myself and I

28:20

used what I like to

28:22

call the Tatal Rule of recusal, which is

28:24

that if you have to think about it

28:26

for more than five minutes, you err on

28:28

the side of recusal. It's so important to

28:31

preserve the integrity of the court that

28:33

when in doubt, I recused. Now, it's

28:36

easier for me to say that than

28:38

for Supreme Court Justice because when

28:40

I recused myself, another judge

28:42

can take my seat on the panel. And that's

28:44

not true with the Supreme Court. And

28:47

what we don't want is to

28:49

have a Justice recuse herself or

28:51

himself and have an eight

28:53

Justice Court. And

28:55

that's the court has said so in its

28:58

ethics standards. And I actually agree with

29:00

that, but it

29:03

imposes on the Justices an

29:06

equally powerful parallel obligation

29:09

not to get themselves into situations where

29:11

they have to recuse themselves. What

29:13

about you, Judge Gerson? I disagree

29:16

in this respect. First,

29:18

I think the standard of whether or not

29:21

your impartiality should reasonably

29:23

be questioned has

29:25

a different resonance today, 2024, than

29:29

it might have 10 or 15 years ago. In

29:32

other words, in a deeply

29:34

polarized country, what

29:37

comprises the reasonable perception

29:39

of partiality is different

29:41

than it had been before. And

29:44

under those standards, it

29:46

is extraordinary to me that Justice

29:48

Alito could continue on the January

29:50

6th case. And it is

29:52

even more extraordinary to me that

29:55

Justice Thomas can continue on the January

29:57

6th case. My

29:59

husband, was the legal director of the

30:01

American Civil Liberties Union of Massachusetts. These

30:03

issues were not, you know,

30:06

came up in my court,

30:08

and I would recuse without a

30:10

doubt for the reasons that Judge

30:12

Taitel just described. So I think

30:14

what reasonably questioned, it means something

30:17

different in these very fraught times.

30:19

I also don't accept the

30:21

view that it would be

30:23

a calamity for us to have an eight

30:26

justice court. And

30:28

the reason is we have had that in

30:30

the past. And then when you

30:32

step back from that in these very fraught

30:34

times, the notion that this is the way

30:36

I would put it, an illegitimate justice is

30:39

breaking the tie is

30:41

unbelievable. So if there is

30:43

a four-four split, and

30:45

Justice Thomas is the one who breaks

30:48

the tie in one of the January

30:50

6 cases, that should give all of

30:52

us pause. It's precisely the opposite. It

30:55

seems to me those who

30:57

are challenged in this way

30:59

should not be participating in

31:02

the ultimate decision. In making the

31:04

final decision. Yeah. Let me say one

31:06

other thing. It's a wonderful thing that

31:08

wives and husbands each have independent careers

31:10

and political proclivities. That's fine. But when

31:13

my husband's positions bleed into my

31:15

courtroom, as I said to the

31:17

Washington Post, one of two things

31:20

would happen. Either I recuse

31:22

or I get a divorce. Just saying. Right.

31:24

Okay. So, Kedra, when you think about this,

31:26

they were just saying, you don't put yourself

31:29

in that situation. How do you look at

31:31

that? The way I look

31:33

at it is that it shows the reason

31:35

why there must be a Supreme

31:38

Court code of ethics that

31:40

is enforceable. Because otherwise, people are

31:42

just wondering what happens with

31:45

all these allegations. Do they just go

31:47

into this black hole and nothing happens?

31:49

And that's what has been occurring. If

31:52

you have allegations that someone should recuse,

31:54

you have allegations that someone has received

31:56

improper gifts and nothing actually happens, then

31:59

the public slowly... loses trust with

32:01

the court, especially when they know that

32:03

wherever they work, there is a HR

32:05

code and they have to comply with

32:07

it. But even

32:09

in the highest court of the land, nothing

32:11

happens. You start to think that not

32:14

only do these individuals not have integrity

32:16

as individuals, they don't have integrity as

32:18

a court as a whole, which is

32:20

a bad place to be, especially when

32:22

they're deciding these consequential decisions that we

32:24

started this whole conversation discussing. Yeah,

32:26

they refuse to quit. So the Democrats in

32:28

Congress just... Go ahead. Yes. I

32:30

agree with much of what Judge Gertner

32:33

said, but to avoid any misunderstanding, I

32:35

was not saying that having a non-justice

32:37

court is so important that judges who

32:40

should recuse themselves should nonetheless sit.

32:42

They shouldn't. And if the consequences

32:44

of that is an eight

32:46

justice court, then that's what we have to deal

32:48

with. My only point was that

32:51

this puts a huge burden on

32:53

justices never to get into that

32:55

situation. They have to preserve the

32:57

integrity of their court. It's their

32:59

responsibility. We'll be

33:02

back in a minute. Support

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35:00

That's

35:03

a-t-l-a-s-s-i-a-n.com.

35:06

Atlassian. I'm

35:10

Claire Parker and I'm Ashley Hamilton

35:12

and this is Celebrity Memoir Book

35:14

Club. A podcast that says what

35:16

if your must read book list

35:18

and your absolutely must not read

35:20

book list got married. If you've

35:23

ever seen a celebrity memoir and thought what could

35:25

they possibly write about? The answer a lot of

35:27

times is nothing so we have to make up

35:29

the jokes to fill in the blanks. Yeah so if

35:31

you want to know what's in there but you

35:33

don't want to waste your eyeballs strength we're gonna tell

35:36

you what's in it so hop along for the

35:38

ride. Who are we? We are two best friends

35:40

and two comedians who had enough time

35:42

to read a full book a week.

35:44

We live in New York so we

35:46

think we know everything about everything and

35:48

we're gonna tell you what's what. And

35:50

if we're wrong that's part of the

35:52

fun. So if you are interested in

35:54

celebrities in literature in a good time

35:56

with your pals tune into

35:58

Celebrity Memoir Book Club. The podcast, but we

36:01

read the book so that you don't have to. You

36:03

can listen to Celebrity Memoir Book Club wherever you

36:05

get your podcasts. I mean, can't wait to

36:08

hang. So

36:10

Democrats in Congress have been trying to codify

36:13

Supreme Court's ethics rules. Last

36:15

week, Senate Republicans blocked the Supreme Court

36:17

Ethics, Recusal and Transparency Act, a bill

36:19

proposed in the wake of last year's

36:22

scandal and that continues into this year.

36:24

I'd like to play a clip from

36:26

Senate Judiciary Committee ranking member Lindsey Graham

36:28

explaining his objections. He's a Republican, of

36:30

course. Judicial investigative panels

36:32

in Section 2 of this bill are

36:35

made up of lower court judges who

36:37

would actually preside

36:39

over their bosses. There is

36:41

one Supreme Court here. This

36:44

is unnerving to

36:46

have a group of lower court judges

36:49

basically have an investigative

36:51

panel, the ability to

36:53

investigate the Supreme Court,

36:56

the constitutionally designated Supreme

36:58

Court, Recusal. That's

37:02

been up to the individual justices

37:04

for, since the court's

37:06

founding, this bill would create a

37:09

panel of

37:11

judges to decide when a Supreme Court

37:13

justice should be recused. Again, that

37:15

just puts the court in,

37:17

I think, disarray and fundamentally

37:19

assaults the one Supreme Court

37:21

we have. All right.

37:24

So nobody can judge them. Can't judge

37:26

the judges. So, Kedric, first, the

37:28

investigative panels Graham is talking about

37:31

would be randomly selected chief justices

37:33

from circuit courts. Do

37:35

you think his concerns are legitimate? What do you think

37:37

of the depiction that would be presiding over their bosses?

37:39

And then I'd like to get a thought from the

37:41

two judges. The only reason I don't think that

37:43

the opinion of the senator

37:45

is completely legitimate because he did

37:48

not offer an alternative. One

37:50

alternative is for it to be an internal body

37:53

within the court the same way you have in the other

37:55

branches of government. The advice that is

37:57

given to the senators on ethics comes from within the

37:59

Senate. House has their own ethics

38:01

committee within the House. Well, the decision

38:03

should be made from within the court

38:06

with an ethics body there if the only

38:09

issue is the lower court judges. Judge

38:11

Gertner, talk about this. Would you like to judge

38:13

the bosses, for example? I like it all the

38:15

time. Every

38:18

other high court in

38:20

other Western democracies have

38:23

a mechanism to judge the judges.

38:25

And it's another example of

38:27

how extraordinarily powerful this

38:30

group of nine is. So

38:33

the notion that a randomly

38:36

selected group of chief judges of

38:38

the courts would make

38:40

a decision and how to enforce

38:42

it would be another question. But the

38:44

notion that a report about, say, Justice

38:47

Thomas's wife or a report

38:50

about the flags, in

38:52

one sense, wouldn't need to be enforced

38:55

by the marshals at the door. That

38:58

alone, that statement by

39:00

a neutrally selected group would

39:03

or should have an impact. I

39:05

mean, as I said, other courts in

39:07

other countries, Western democracies have had to

39:09

deal with this issue. It

39:11

doesn't happen very often. And sometimes

39:13

the existence of such a panel

39:16

affects what the judges do. So

39:19

while it is to a degree

39:21

awkward, it's

39:23

certainly better than, that's right.

39:27

Justice Thomas essentially not thinking he

39:29

has to explain. And

39:32

Justice Alito's explanation was really

39:35

quite simply laughable, just

39:37

laughable. I just want to say one thing to

39:40

make something clear. When we talk about enforcement,

39:42

I think it is very important to say

39:44

what enforcement means. We're not saying that

39:46

somebody is going to be able to kick

39:48

the justice off of the court. That

39:50

is only the impeachment power of

39:53

Congress. We're saying enforcement in the

39:55

sense of fact finding and

39:58

in the sense of disclosure, transparency what

40:00

is happening with that fact-finding. It's really that

40:02

simple. Yeah. So Judge Taylor, you

40:04

sat on the DC Circuit Court. What's

40:06

the answer here to you? Who

40:09

should the court answer to? Not getting to

40:11

impeachment, which is the greatest move here. Where

40:15

should these judges, these particular Supreme

40:17

Court justices, be judged? I

40:20

think that's a really hard issue. Judge

40:24

Gertner knows much more about this than I do

40:26

because she served on the President Commission, and they

40:28

thought about this a lot. My

40:32

view is not an especially popular one, but

40:35

I'm among the group of

40:38

people who think that there's

40:40

serious constitutional problems inherent

40:43

in any effort to

40:45

make an ethics standard

40:48

enforceable. The Congress

40:50

has authority over the

40:52

court's jurisdiction and its size

40:55

and many other things, but

40:57

I'm doubtful that it can

40:59

constitutionally enforce an ethics

41:02

code short of impeachment.

41:04

So there isn't a solution? That's

41:07

my instinct, but

41:11

I might be wrong about that. That's

41:13

just my instinct. I

41:16

do think the most

41:18

important thing we have is disclosure.

41:20

I think the financial disclosure obligations

41:22

are critical. If there

41:25

is no enforceable mechanism, at

41:27

least the public should know

41:29

what judges are investing in

41:33

and where they're getting their income. It's

41:35

a huge privilege to serve on a court, and

41:39

our salaries are guaranteed for

41:41

life. We're financially secure. So

41:44

disclosing the source of income

41:46

and maybe even limiting certain

41:53

contributions is fine. But I think the

41:55

answer to me is transparency here, and

41:58

the more we know, the better. I

42:01

use the same rule on my financial

42:04

disclosure form that I used on

42:06

recusals, which is when in doubt, I put it on

42:08

the floor. You put it on there, no matter what you

42:10

get. So I want to last talk about this and then finish

42:12

up with the Trump cases and the future of the court. But

42:15

one of the things is things that are just you,

42:18

the person you are actually behind the scenes,

42:20

because everyone's a human being. We often forget

42:22

about that. They're up there dressed up looking

42:24

godly in a lot of ways. And speaking

42:26

of godly, Justice Alito also recently was caught

42:28

on tape agreeing that America should return to

42:30

a state of godliness. There are now petitions,

42:33

including one from a Christian group, calling for

42:35

him to resign as a result. But

42:37

if they are the way they are, how do

42:39

you guard against that? There's no ethics rule that

42:41

can stop you from being the person you are,

42:43

and thinking godliness is as important as anything else.

42:46

That's true. There's no, right? It's just

42:48

like there's no law. You can have all

42:50

the laws you want that are against crime, but there's still

42:52

going to be crimes that happen. You

42:55

can have all the ethics rules. There's still going to be unethical behavior. The

42:58

way our court system works is that if

43:00

there are views by the justices that no

43:03

one espouses anymore or

43:05

that it grows out of favor over

43:08

a course of time, those justices are

43:10

supposed to be replaced with people

43:12

that the public has voted on elected

43:14

officials to appoint to the court. And

43:17

Judge Gertner, I'd love your thoughts on this. Well,

43:20

think about it. Disclosure without

43:23

consequence undermines

43:25

the authority of the

43:27

court. So let's say

43:29

now going forward, Justice Thomas

43:32

happily discloses the next

43:34

RV that someone purchases for him,

43:36

or he happily discloses the next trip

43:38

to Bali that someone else paid for.

43:43

But there are no consequences. It

43:45

seems to me that disclosure and

43:47

transparency are important, but if it

43:50

doesn't affect their behavior, and

43:52

it doesn't affect what they do, and I

43:55

take Judge Taitel's point that it did mine, I

43:58

would err on the side of recuperation. every

44:00

time. If it

44:02

doesn't affect their behavior, all it does is

44:05

it continues to delegitimize this

44:07

court. And what seems so clear

44:09

with the controversies, particularly with respect to Justice

44:11

Thomas, is that he didn't feel the need

44:14

to explain. We don't have

44:16

public figures in a democracy like

44:18

that, even judges. Well,

44:21

we do, actually. Right. We shouldn't.

44:24

We'll be back in a minute. Was

44:34

that anti-Semitic? This weekend,

44:36

when a little group of protesters at the White

44:38

House chanted, Kill another Zionist

44:41

now! Kill another Zionist

44:44

now! Kill another

44:46

Zionist now! Was that anti-Semitic? Or

44:49

the spreadsheet that circulated in May? I'm one of

44:51

24 authors on

44:54

a public spreadsheet called, Is

44:57

Your Favorite Author a Zionist? Was

45:00

that anti-Semitic? The events on college

45:02

campuses that led to congressional hearings

45:04

on anti-Semitism. Was it really anti-Semitism?

45:08

The FBI says anti-Semitism has, quote, risen

45:10

to a whole other level since October

45:12

7th. And some of you are thinking,

45:14

yes, you've seen it. While

45:16

some of you will say the opposite, you

45:19

may even believe that anti-Semitism is being weaponized.

45:22

This week on Today Explained, we talked

45:24

to some smart people on how to

45:26

see anti-Semitism. If it's in the news

45:28

and it's on your mind, we've got

45:30

it. We drop every weekday. This

45:33

week on The Pitch, the dreaded error

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message. It

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looks something like, sorry, we're currently

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experiencing issues. Please try again later.

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So who gets called when that problem

45:45

arises? We do. The

45:47

question is, can the machine

45:49

learning based scaling outperform the

45:51

human approach? To me,

45:53

it's so obvious. Models usually don't have a

45:55

bad day. And your models can't

45:57

quit and put in their two weeks notice. How

46:00

have you two divided up your own responsibilities

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46:12

Go right now and subscribe to The

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Pitch, wherever you listen to podcasts. So,

46:17

I want to finish up talking about two things,

46:19

the future of the court in that regard, and

46:22

the Trump immunity case, because this is having immunity.

46:24

This is having immunity without consequences, what you're talking

46:26

about, and there's the Trump immunity case that they

46:28

have to decide. So, these are people who feel

46:30

immune or are immune, who are deciding on whether

46:34

former presidents have complete and

46:36

total immunity. If the

46:38

conservatives on the court take it back to the

46:40

lower courts, could it be a convenient way for

46:42

them to get Trump off the hook while maintaining

46:44

a seemingly apolitical stance? Am I reading that correctly?

46:46

Why don't you start, Judge Taitl? I'm

46:50

not going to answer your question, but I'm going to answer a

46:52

different question, if that's okay. I thought

46:56

my court's decision made sense to me.

46:59

I read it. I thought it was completely

47:01

convincing. But I don't object

47:03

to the Supreme Court granting certain hearing aid.

47:06

I think there are some issues in our country that

47:09

are so important that even if the Court of Appeals

47:11

gets it right, it should be

47:13

decided by the nation's highest court. So, had

47:16

I been on the court, I might well

47:18

have granted cert also. And I'm also not,

47:21

like many people, critical of the

47:23

court deciding it in the ordinary

47:25

course. I think

47:27

that timing of the election is not its

47:29

problem, and it's such

47:32

an important issue. It should decide

47:34

it correctly. All I hope

47:36

for is that they

47:38

produce a non-ideological decision that

47:41

is principled and that

47:43

can give the country confidence that it's

47:45

the result of a judicial process and

47:47

not a political process. The

47:50

case is so important that

47:52

the court has to find a way to

47:54

send that signal to our nation. Whatever

47:57

they decide, half the country is going to agree with

47:59

it. is going to disagree with

48:01

it. They need to decide it in a

48:03

way that at least most people respect it

48:05

as a legitimate act of judging. So,

48:08

Judge Gertner? I agree.

48:10

I sort of

48:12

agree that they had to grant cert

48:14

on the case and

48:17

that they ordinarily should not

48:19

consider the election. Can you explain what grant cert

48:21

is for people who don't know? The

48:23

court has the discretion in most

48:25

cases, not in all to decide

48:27

what it will decide. And

48:30

so it could have decided

48:32

here not to grant certiorari,

48:35

not to grant review in this case.

48:37

But what I'm saying is that since

48:39

the inception of the court as it's

48:42

presently configured, there have been so many

48:44

situations in which the court has cut

48:46

corners, taken cases without waiting for the

48:48

court of appeals to decide, taken cases

48:51

on an expedited schedule just because the

48:53

government, in that case the Trump administration,

48:55

asked for expedition. So

48:58

the notion that they're now being pure and

49:00

saying we're not going to consider politics or

49:02

the election doesn't make any sense. It goes

49:04

back to who this court has been. So

49:06

I want to finish up talking about what

49:08

that is because the court has made mistakes

49:10

before, right? The five justices in the Rehnquist

49:12

court prevented the state of Florida from finishing

49:14

its recount. They have had mistakes before. The

49:16

American public still held the court in pretty

49:19

high regard, right? So they've made these mistakes.

49:21

They've made hypocritical decisions. Only 39%

49:23

of Americans think the Supreme Court is doing

49:26

a good job of coursing to a recent

49:28

Marquette law school poll. It's clearly along partisan

49:30

lines. More than half of the Republicans approve

49:32

the court compared to 23% of Democrats. Is

49:35

there something that the Supreme Court should be

49:37

worried about and what impact does public opinion

49:39

have, if at all? Let's

49:42

go. Kedric, you go first, then Judge

49:44

Gertner, then Judge Taitl. Public

49:46

opinion is key for the court. The

49:48

reason it is legitimate is because the

49:51

people hear the opinions,

49:53

respect the opinions, and then that allows us

49:55

to have that final say for what the

49:57

Constitution means and what our laws mean. if

50:00

you slowly get this court losing

50:03

the respect of the public and

50:05

not regaining it in any way, then

50:08

we don't even know what the consequences

50:10

are. I don't think we've been in

50:12

a situation, at least in modern times,

50:15

where the court continuously gets involved in

50:17

very high profile and divisive cases while

50:19

at the same time being just

50:22

inundated in ethical scandals with

50:24

the individual justices. Judge

50:26

Gertner? The classic quote

50:28

is, I believe it was reputed

50:31

to be by Andrew Jackson who said,

50:33

John Marshall has made his decision, now

50:35

let him enforce it. And the implication

50:37

was that the Supreme Court doesn't have

50:39

its own army, doesn't have its own

50:41

enforcement mechanism. And if the court is

50:43

undermined, if the legitimacy of the court

50:45

is undermined, it would have an impact

50:47

then on how

50:50

much people respect its opinions. And given

50:53

the power of this court, that's an

50:55

extraordinary problem. So yes, they should be

50:57

concerned if they're concerned about the future

50:59

of the court and if they're concerned about

51:01

the future of the country. Judge

51:04

Taitel? I would just say,

51:06

if you look at this from the perspective of

51:08

your average American citizen, if

51:11

you don't like what Congress has done

51:13

or what the president has

51:15

done, you vote against them. The

51:18

decisions, Supreme Court justices are

51:20

appointed for life. They're unaccountable politically.

51:23

So why do the American

51:26

people tolerate an institution

51:28

like this in a democracy? They tolerate

51:30

it because it's viewed as

51:32

a judicial body, as a body

51:35

that isn't making policy, that's applying

51:37

the law to the facts. And

51:40

therefore we have confidence in that because

51:42

it's performing a judicial process that's critical

51:44

to our democracy. When

51:46

the court begins to chip away at the

51:48

separation of powers and the checks and balances

51:50

as this court has, and

51:53

as it does so increasingly with

51:56

five to four and now six to

51:58

three ideological votes, going back... to

52:00

my average American citizen, they look at

52:02

the court as an unelected legislature.

52:06

And why would they have any confidence in

52:08

that? Right. Every

52:10

episode, we asked an expert to send us

52:13

a question. This one comes from Roberta Kaplan,

52:15

who led the legal team representing Eugene Carroll

52:17

in the lawsuits against Donald Trump among many

52:19

accomplitions, including arguing in the Windsor

52:21

gay marriage case before the Supreme Court.

52:24

Let's listen to it. The

52:26

great Linda Greenhouse recently wrote a New York

52:28

Times column entitled, How John Roberts Lost

52:30

His Court. Judge Taitel

52:32

himself has similarly warned that the future

52:34

of democracy, not to mention the future

52:37

of our planet, is actually

52:39

imperiled by the current Supreme Court

52:41

majority. Judge Taitel has

52:43

noted that the court had become an

52:45

institution that he, quote, barely recognized, end

52:47

quote. Two questions flow from

52:49

this. One, keeping

52:52

in mind all the various proposals that have

52:54

been made for reform, what do you think

52:56

would be the best way for the Supreme

52:58

Court to regain the confidence and trust of

53:00

the American public? And two,

53:03

keeping in mind that everything in this

53:06

world isn't perfect, what do you

53:08

think would be the most realistic way, if

53:10

any, for that to happen? Okay.

53:13

Kendrick, you start. What I

53:15

would hope is that the justices themselves

53:17

get together and decide that enough is

53:19

enough and they personally want to regain

53:22

the trust of the public, which means

53:24

you will see more unanimous decisions. There

53:27

may be very twisted opinions to get there,

53:29

but unanimous decisions to show that the

53:31

court is trying to work together, which

53:33

I think about landmark cases such as

53:36

Brown versus Board of Education, where they

53:38

understood that you had to have a

53:40

unanimous decision in order for the country

53:42

to see that you're working together. What

53:45

do I think is most probable is that

53:48

justices will soon leave

53:51

the court and be replaced by justices

53:53

that are different in their

53:55

view, and hopefully it will be a positive

53:57

change and not more of a negative change.

54:00

negative change. They could die. That's

54:02

the only way they lose their job. Not

54:04

that I wanted to. I didn't want to say that. I didn't

54:06

want to say that. Yeah, I said it. Go

54:09

ahead, Judge Gertner. Well, I mean,

54:11

I think there are short-term and long-term

54:13

solutions and there are... And I actually...

54:16

I think I took this page from what Kedrick was

54:18

saying, which is very interesting, which is if

54:20

there was at least an entity within the court,

54:23

within the Supreme Court that did

54:25

fact-finding with respect to this, with

54:27

these issues, the ethic issues, then that would make

54:30

a difference because we believe that people want to

54:32

be in good faith. And so

54:34

having a fact-finding body that would say

54:36

the following happened and it was wrong,

54:39

I'm not confident that that would happen. Witness

54:41

the really lame investigation as to

54:44

who leaked Dobbs. But so that's

54:46

a short-term immediate fact-finding. Some entity

54:48

do a fact-finding. The

54:51

longer institutional issues were suggested in the

54:53

White House Commission. Nobody recommended it. Frankly,

54:56

I took the position that

54:58

this was, as we called it, a break

55:00

the glass moment, which is that this is

55:03

a very dangerous court

55:05

that has been undoing precedent at a

55:07

speed which judges never operate at. Why

55:09

was it necessary to do the... To

55:13

sort of throw out precedent at the speed with which

55:15

they are doing it? I argued

55:17

and Professor Tribe argued to expand the

55:19

court. There are all sorts

55:22

of political issues with respect to that and

55:24

concerns that the next administration would expand it and

55:26

we'd wind up with a court of 100 people.

55:30

But I do think that something needs to be done that

55:32

we can't simply... Term limits? And term

55:34

limits, yes. But term limits would require

55:37

a constitutional amendment. So whereas

55:39

expanding the court would not. I understand that all

55:41

of those are fraught, but I think

55:44

the present is more fraught. Yeah.

55:47

Court of 100 judges, I prefer over this one.

55:51

And the most realistic thing? Well, I

55:53

think the most realistic thing is even

55:55

if it's coming up with some kind

55:57

of ethical fact-finding approach.

56:00

Even if it's not enforceable, as

56:02

I said, a statement, not by the media,

56:05

a statement about Justice Thomas and

56:07

the extent to which what he's

56:09

been living inconsistently with

56:11

the way judges are supposed to

56:13

live in terms of

56:16

being supported to the degree that he's been

56:18

supported by wealthy patrons. That

56:21

would help. Yeah. Okay.

56:24

Justice Taitel, bring us in. This is what you write about

56:26

in the book. What is the best way to get talking

56:28

to this? What's the most realistic? I

56:30

think from the court's

56:32

point of view, I'll put it in personal

56:34

terms. I think the court needs

56:36

to do much more of what we did on

56:38

the DC circuit, which is to strive

56:42

for unanimity, to respect

56:45

the court's precedent as carefully as we

56:47

can, to respect our

56:49

limited jurisdiction, and to decide

56:51

cases as narrowly as possible.

56:53

I think if the court

56:55

can do that, I think it

56:57

will go a long way towards restoring its reputation

57:00

as a judicial body. Now,

57:03

will it do that? I don't know.

57:05

I hope it does. But I

57:07

say in my book that no one knows.

57:11

The only thing I can think of in

57:13

the long run to resolve this

57:15

problem is for everybody to vote. The

57:18

vote is all we've got. Everybody

57:20

needs to vote. Because

57:22

of the Supreme Court's decisions, the states

57:24

throw up ridiculous obstacles in your path.

57:27

Then get around those obstacles and vote. If

57:30

a president is saying he or she

57:32

is going to appoint

57:34

justices to accomplish specific

57:37

policy objectives, don't vote

57:39

for that president. And

57:42

take Congress seriously. Congress

57:44

can check the Supreme Court. That's

57:46

the way our checks and balances work. Many

57:49

of the cases we've just talked about,

57:51

Congress can correct. But Congress doesn't take

57:53

that role seriously. So we

57:55

should vote for members of Congress who

57:58

understand their constitutional role in and

58:00

balances. This is a long, long run

58:02

solution. But to be honest, Kara, I

58:04

don't know what else to suggest. All

58:06

right, this has been great. I really

58:08

appreciate all three of you and I

58:10

appreciate all your incredibly thoughtful answers. Thank

58:13

you. Thank you. On

58:17

with Kara Swisher is produced by

58:19

Christian Castro-Rochelle, Kateri Yocum, Jolie Myers

58:21

and Megan Burney. Special thanks to

58:23

Kate Gallagher, Andrea Lopez-Grusado and Kate

58:26

Furby. Our engineers are Rick Kwan

58:28

and Fernando Arruda and our theme

58:30

music is by Trackademics. If

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58:37

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recuse yourself and stop riding around

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58:47

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wherever you listen to podcasts, search for On

58:51

with Kara Swisher and hit follow. Thanks for

58:53

listening to On with Kara Swisher from New

58:55

York Magazine, the Vox Media Podcast Network and

58:57

us. We'll be back on Monday with a

58:59

new episode of On. If

59:08

you've been enjoying this, here's just one more thing

59:11

before you go from New York Magazine. I'm

59:13

Corey Sica. Recently, our writer Rebecca

59:15

Tracer noticed something. Republican and right

59:17

wing women have been flourishing and

59:19

prospering in the last year. From

59:22

Marjorie Taylor Greene to Kristi Noem. They're

59:24

tough, they're chaotic, and they tend to

59:26

have really great teeth. They're also swirling

59:28

in the orbit of Donald Trump as

59:30

he seeks to seize the country with

59:32

an iron fist this fall. Rebecca

59:34

wondered, is this empowerment

59:36

or are they just Trump's

59:38

handmaidens? I brought her in to explain

59:40

to all of us what's going on here. Hello,

59:43

Corey. I'm gonna start

59:45

asking really boring questions. Here's one. Which

59:47

of the many exciting recent dust ups

59:49

incited you to want to talk to

59:51

and write about right wing women politicians.

59:54

The first time I floated

59:56

a version of this was

59:58

after Katie Britz. post-State of

1:00:00

the Union. But I can't say

1:00:03

that at that point I thought, like,

1:00:05

I want to do a whole scope

1:00:07

of Republican women. I was just really

1:00:09

into Katie Britt. Because it was very

1:00:11

old school in certain ways, like the

1:00:13

kitchen, like, it was very white suburban,

1:00:15

middle class, mommy presentation. But

1:00:17

it was also, like, gothic

1:00:20

horror. You know, there's blood of

1:00:22

the Patriots right here in my

1:00:24

kitchen with an apple. But

1:00:26

it wasn't enough. I wasn't going to write a whole piece about

1:00:28

Katie Britt. It might have been the infomercial that South

1:00:30

Dakota Governor Kristi Noem cut for

1:00:33

the dental work she'd had done. Where

1:00:35

I was like, what is happening

1:00:38

with the Republican women? Right.

1:00:41

Like, so Kristi Noem did sort

1:00:43

of a physical self-redivation to make

1:00:45

herself either more palatable or more

1:00:47

powerful. I'm not sure. When she

1:00:50

began, she had a very no nonsense, boxy,

1:00:52

Pelosi-esque, Hillary sometimes haircut that,

1:00:55

like, sort of choppy haircut.

1:00:57

And then in recent years, since she's become a

1:00:59

little bit of a right-wing star, one of the

1:01:01

things she's done is really change her look. Now,

1:01:04

Donald Trump is very open about how

1:01:07

he feels about women, how he evaluates

1:01:09

women. And Noem has clearly remade herself

1:01:11

into somebody who looks like somebody

1:01:13

Donald Trump has expressed physical appreciation for. So part

1:01:15

of my question in this piece is, what does

1:01:17

political power mean if you conform

1:01:19

to those kinds of aesthetic standards, but

1:01:21

then in some way that winds up diminishing

1:01:24

the respect that the people who set those

1:01:26

standards have for you? Well, your point

1:01:28

is a great one that Trump hangs over a lot of this. Both

1:01:30

soliciting him for a big job at the same time as

1:01:35

they know he has standards. But also at

1:01:37

the same time, Trump's big innovation was

1:01:39

like performance is power, and they're enacting

1:01:41

their own narratives. They've all become Trumpy in their own

1:01:44

weird way. Yeah, and I have to tell you that it's

1:01:46

very frustrating for me, because I write about politics, and

1:01:48

I hate the thing where everything is about Trump.

1:01:50

I always want to make it not about Trump.

1:01:52

But writing about these women really challenged that. Conviction

1:01:55

in me, because it is clear that at least for

1:01:57

some of them, so many people are going to be

1:02:00

of the new behaviors they're

1:02:02

enacting are in response

1:02:04

to Trump, are about the single demand

1:02:06

in the Republican Party right now, which

1:02:08

is showing him loyalty, fealty to this

1:02:10

guy. Like all these people,

1:02:13

Valentina Gomez, Laura Loomer, they're enjoying the

1:02:15

fruits of choice in career and motherhood.

1:02:17

Like does this mean feminism

1:02:19

won? Well,

1:02:22

this is what's so dystopian and scary

1:02:24

about their project is that they're all

1:02:26

doing these things which are really fascinating.

1:02:28

Right. Marjorie Taylor Greene's

1:02:31

lifting weights in a video and

1:02:33

not behaving classically demure and all

1:02:35

of this sense of empowerment is

1:02:37

absolutely what feminism gave to

1:02:39

women. OK, so great. Here is its

1:02:41

success. But also the

1:02:45

party and the ideology that these

1:02:47

women are using these

1:02:49

feminist gains to promote is

1:02:52

openly dedicated to the rolling

1:02:54

back of those feminist gains. That's

1:02:57

Rebecca Tracer. You can read her

1:03:00

work on Republican women and more

1:03:02

in your home in our glorious

1:03:04

print magazine and at nymag.com/lineup.