Well, another discussion won another victory for the duke and duchess of debate.
Welcome to Bad Faith and welcome to all of our new subscribers here because of our controversial conversation with the one and only Professor Noam Chomsky.
The irony being, of course, and all of you subscribers know this, that it actually wasn't that controversial of a discussion.
What was said about it, I think, was a lot more radical and inflamed than what was said on it. I mean, I think the conversation was substantive and good and people should subscribe and listen to it because I think it was revealing and a lot of interesting ways and unsettled people's presumptions of like kind of who Noam Chomsky is and what they might expect him to say. But I think what people really felt for my friend, sir, Texas, is that you are the biggest troll on the planet.
How how so? How so? Well, Virgil, I suspect that by framing our conversation as a contest to be one one that we, in fact, did when you inflamed the tempers of a lot of socialists on the Internet who feel very, very strongly about Noam Chomsky as an intellectual heavyweight versus first of all, I also feel this.
I hold him in very high esteem. And second of all, what am I going to do? Not say that I want not claim victory?
Of course I'm going to claim victory, because guess what? Chomsky's also saying he won going email him and he will tell you. Yeah, I went on this podcast and wipe the floor with these two millennials. Another notch for my headboard.
Oh, my God, please. You're going to have like a hundred people emailing Noam Chomsky at all. Did you win? I'm saying all of this with the respect. It was respect because it was if you actually go and you listen to the tape, it was a friendly conversation. We gave him an opportunity to go on our show and argue his position for forty five minutes with no interruption at all.
We didn't cut his mike or put toilet flushing noises over his audio or anything. You might come off of it agreeing with Brie or you might come off desiring to vote for Joe Biden.
I mean, it's out of our hands. What you do. I mean, it's true. You know, we we've had on people who will make the argument that, yeah, you should vote for Joe Biden. Yeah. I mean, obviously. But I thought the engagement was great.
I was really excited that we were trending basically all day on Monday. And, you know, it's exciting. We had a whole new slew of subscribers and I appreciate all of that interest. And I think that you will be more than happy with the content that comes down the pike.
The only part that I was frustrated by was the the gap between the way people were talking online who clearly hadn't listened to the podcast and what was actually said, because there were all of these arguments. There are a whole bunch people who are mad at me now because they think that I was arguing in favor of voting third party, which didn't frankly come up in the conversation. As I recall, they think that I was advocating for people not to vote, which again, I didn't bring up and have never said.
I absolutely think people should vote yes, especially since there's all kind of down ballot implications, regardless of what you think about the top of the ticket.
I mean, they presume that we were, you know, rude or disrespectful to Professor Chomsky, which obviously didn't happen. So what I think happened was the response that I know that that Noam Chomsky gave to us repeatedly and which was included in several of the clips we posted, suggested that we were talking about something we weren't talking about, because I think in a lot of ways this response was nonresponsive, as lawyers say that he was he kept turning.
What I wanted to do was have a conversation, which was to have a conversation about what activism we should do, how voting and leveraging one's vote and leveraging the vulnerability of politicians shortly before an election to advance certain political and ideological goals can be a part of one's activist agenda. If not now, then in future election seasons. Right. And how can we build a movement that can credibly threaten to withhold a vote as a block the way that unions and other groups have been able to do in the past?
That is the meat of the conversation.
And what we face is an existential ecological threat. How do you move Biden to the left? Like what does that functionally entail when he's a member of this party that is beholden to very wealthy interests? That's a valid question. That's something that we should be concerned with. I think that the professor's essential argument was, OK, I get it, I hear all that stuff. But my point right now is privileged that like this.
No, all this matters is what you're doing, that ten minutes that you're spending in the voting booth, which, you know, fine, you know, fine. You know, if that's that's the case, you want to make fine. But I do think that our audience is going to be concerned with these questions, and I think we will pursue those questions after, I presume, Biden. This November, and I do think, you know, comparing that interview in the persuasive value of Chomsky's approach to Marianne Williamson, the approach, they were both making the same substantive argument.
But I think folks who listen to both will find that Marianne Williamson was infinitely more persuasive because she she demonstrated that she heard the words that were coming out of her mouth and responded to our concerns and legitimized them and just said, look, I agree with you. I think that Trump presents a unique threat. I'm going to do. I think we should vote for him now. And immediately thereafter, we're going to start strategizing about how to make sure we're never in this constrained choice situation ever again.
Yeah, I think a lot of the people who got mad about it are just, you know, blue checkmark losers based not like the cool kind of blue checkmark people like me, you and I. And, of course, earned our checks.
And they you know, they they they I have a suspicion that they're really mad about it because they're actually hyper anxious about whether people will vote for Biden this November, whether specifically the left and young people, because they still hold in this mind the idea that the left is somehow responsible for Hillary Clinton losing last time around. And so they're of hyper focused on, you know, policing that boundary.
Well, I don't really think I mean, we've had this conversation. You should you know, if you subscribe to the show at Patrón Dotcom, such bad faith podcast, you can find this episode where you and I, you know, go head to head on the question of whether your individual vote matters. We laid out our individual arguments on that point. I will leave it to the listener to say who won?
That was an nature of your people were quite so crazy. When you continue doing that, which I kind of take offense.
I mean, yeah, the comments were ferocious on that one. Some people said I won. A lot of people said that you won. I like to think that a lot of people just, you know, they just can't handle the truth.
See, but to your point, Virgil, I think you're right that people are still, despite Biden's double digit lead, is doing very well, that they are anxious about whether or not young people, progressives, Latinos, all these young black Americans are going to turn out.
My response to that would be to point out that apparently the Democrats and Biden aren't nervous enough about that to actually offer up the policies that they have said they repeatedly want. So it, again, is weird to me that the onus keeps coming back to us for simply having a conversation or articulating the reality of the situation right now without weighing in one way or the other about what people should do. And if the situation is that vulnerable and the stakes are so grave, it does bring us back to the point.
Why not just do these electorally popular things that would help to secure your victory and actually make the world a better place?
I have never in this cycle since the end of the primaries have never told someone you have to vote this way or you're a bad person, which is, you know, that's kind of that's the M.O. of a lot of people on the Internet right now.
I don't maybe we should do like a like a frigging reality TV game show episode about just just me finally deciding who I'm going to vote for.
I've got my ballot. Interestingly, the board of Elections set me two ballots, one of them with a letter saying that the other one was, you know, he was screwed up.
We misprinted it and I have I open them at the same time. So there's switch and I have no idea which is the correct ballot for me to vote in.
So this election is already going great record fantastically for me. Do you think you could take ten minutes to vote in person?
Just ten minutes, Virgil. I got to wait in line, though, and everyone's sick.
I don't know about that one like you got. This is like something going on in Brooklyn with the hayseeds.
I don't know.
I don't really want to. I don't know what's going on. But apparently Kollwitz coming back in Brooklyn, so we'll see.
I mean, I'll just I'll just I'll just vote twice. It's fine. I'll get to vote. I'll get two votes. That's what they're saying.
I got a bonus vote in this election, but maybe we should have that episode where we finally we can invite people on who are just going to make their their earnest argument, because as I understand it, really, the argument is between voting for Biden, which I've heard, you know, I've heard very intelligent takes on this and just just not just doing whatever you want like this.
There's nobody's making the affirmative case for voting for Howie Hawkins. I just don't see it or whoever or whoever.
Right. Yeah, it feels a lot different than in twenty sixteen.
When there was an affirmative case for Jill Stein, she had injected herself more into the political landscape. She did make news for getting arrested at Standing Rock. And that was one of the first national stories about the standing rock protests. You know, people don't want to want to hear it, but she was a more I don't want to say a more serious candidate, but presented herself as a part of the moment more effectively for whatever reason.
So I will say out of all the the candidates in this race, I don't like or respect any of them. I don't think any of them would be a good president. I don't like the movements that they represent at all. I just don't.
Yeah, well, people are going to accuse us of encouraging voter apathy by even acknowledging our own voter apathy. But here we are. Yeah, oh, I'm sorry, I'm depressed and sharing my depression with everyone, that's what you're supposed to do on the Internet, that's healthy, so go to hell, it is healthy.
And so hopefully the conversation we have today, which is a slight sidestep from electoral politics.
Thank God it's got a conversation about Amy CONI Barrett's confirmation hearing, which is ongoing. We're recording this on Tuesday. We have an amazing array of panelists, each of whom has a discrete focus of expertise that I think enables us to have a really broad conversation about the strategic the citizenry of opposing her nominee or her confirmation about whether or not the Democratic leadership is doing everything they can do about how we got to this place, because the influence of the federal society in these right wing corporate fueled groups and Nathan Robertson, who does this deep dive into the case law and has reviewed all of Amy CONI Barret's decisions.
So this is great. This is a great panel. If you want to know what the hell is going on with the Supreme Court and what the future is going to be. Listen to this. Listen to this. To find out if me and Briese perfect 10 zero season record on bad faith will hold up.
Let's go to the ballot. Let's meet our panelists. He is the founder and editor in chief of Current Affairs, the nation's only anti history magazine, as well as the author of Why You Should Be a Socialist, among other books, Nathan Robinson.
He is a professor of constitutional law at Georgia State University and the author of Supreme Myths Why the Supreme Court is Not a Courts and Originalism Has Faith.
Eric Segall, thanks for having me. And he was a senior adviser and speechwriter on the Bernie Sanders 20 20 campaign. He is an editor at large for Jacobin magazine and he is the founder and editor in chief of The Daily Poster, a grassroots investigative journalism project.
David Sirota. Hey there. Thanks for having me. Thank you.
It is day two of the Amy Barrett confirmation hearings.
As we're recording this, we will be sadly not able to talk about day three, which I'm sure is going to be another blockbuster day.
But this episode is coming out Thursday. What what's the panel's reactions to the hearing so far?
Oh, sorry. That was a young thing. It's bad. She's bad. Everything about this is bad.
I've been watching your tweets and I've noticed you having, you know, kind of sporadic, strong reactions to various parts. What do you think has been the highlight of today so far?
Lowlight, right? You mean the light of day device?
So she when she used the phrase sexual preference, I don't know if she knows what that means or not, but she could have come back from it much stronger than she did. We know what she is going to vote in any case involving same sex rights. It's going to be ugly. I think that she is willing to talk about her personal views on some subjects, but not others, which is very strange for a person who signed a letter saying that abortion, you know, is basically effectively murder and Roe should be overturned.
She should talk about her personal views on that because she signed a letter about it.
But wait, I thought I thought she said she doesn't have any opinions on anything. I mean, that was that was the thing. I kept being told that she has no opinions on anything, even though she'll be writing all the laws. And I mean, to me, in all seriousness, that was the creepiest part of this, which I realized that she that that's kind of tradition to say, you know, judges have no opinions on anything. But what I don't really understand is how anyone believes that bullshit, because we're all like human beings in the world and everybody inherently has opinions.
And if deciding cases, which was just like an algorithm that had no opinions at all, then you wouldn't need judges. The whole reason a case comes before a panel of judges is because the judges have to interpret the law and apply the law. And that process of interpretation and application, I mean, inherently involves like a belief system and a belief system is basically a set of opinions.
So they're not they're not the multiverse.
I can speak to this because she's, what, 48 and she clerked for Justice Scalia. I'm 62. I've been hiring law professors at my school for 30 years, her gender.
And she's she's legal academic basically, because what she was she got promoted an incredibly young age to be a court of appeals judge, her generation of legal conservative legal academics who clerked for Scalia and Thomas.
Have this inability to understand what David just said, which is that judging is about subjectivity, judging is about personal values and priorities when the text is unclear in the history contested and I know her a little bit, I've met her a couple of times in different conferences.
What is most surprising about this hearing is her complete inability to defend originalism and her complete inability, to be honest, that she knows it's about subjectivity, but she won't admit it.
And that's what they all do her age.
And it's really terrible. It's not it's not a fair and accurate statement of what Supreme Court judges do.
So for those who don't know, there are a lot of amazing legal minds on this panel. But for folks who don't have a background about what I read in originalism or textualism means there's been a lot of discussion about it today. Right. And when we're talking about this effort to appear neutral or to talk about a way that people are applying a judicial philosophy that doesn't implicate their own personal beliefs, that's the go to move right. To say I am an originalist, I am a textualist.
I'm interpreting the Constitution.
Can you can you help explain and unpack what that is supposed to mean and what it means in effect?
Professor, it's a label to indicate conservative and libertarian beliefs most of the time. She said today that she interprets the language as it was understood when it was ratified. Let's let's unpack. Yes, let's unpack that.
In 1868, when the 14th Amendment was ratified, women were the property of their husbands. In most states, women didn't have the right to vote. Segregation was happening in the District of Columbia. I would like to believe that if she had a case before her as a Supreme Court justice, she would say women have equal rights under the law. I'd like to think she would say that. But then she's not an originalist because that's not how that text was understood in 1868.
And my point in saying that is for her, for Scalia and Thomas and Cavanaugh and Gorsuch and I've written a lot about this, they're not originals.
They choose the result and then cherry pick history if it's available to justify their result.
Why do they persist in the kind of labeling of originalism and textualism and what what seems to be the left's answer to it?
I wrote a whole book about that and if I may keep going and I don't wanna monopolize the time, but this is good groundwork for the conversation, I think. OK, so I wrote a book called Originalism is Faith.
And the reason I called it that is because we know that the pundits, the Mark Levins of the world, they're in bad faith. The politicians are in bad faith. But but the book tried to figure out why academics like her. She really is, again, an academic for most of her career. Why do smart academics say they cling to this theory? That can't possibly be right, because no one is going to decide cases like slaveholders decided them.
It's like it's a really dumb thing. And what I came to was there is something called the realist critique. Oliver Wendell Holmes was the father of it. But many, many smart people buy it.
And what it says is that in any legal case where there's no binding precedent and the law is unclear, judges will impose their personal values.
That's just legal realism. And that's what they do.
They want to pretend that's not true or they're so brainwashed and that I know she's a really smart academic, but I use that word.
I think Scalia believes his nonsense, but it was all nonsense.
My friend Judge Posner, a retired Judge Posner, who was the leading who's been named the leading American intellectual of the 20th century and is the greatest judge, never on the Supreme Court, had a very complex theory of cognitive dissonance to explain these people, which is that they're told, well, it's true because because what they think what I do as a parent, I don't know what I'm doing.
Why why? I'm doing a lot of things I do. I like to be self reflective about it, but there's a lot of subconscious stuff going on. When you're asked to interpret cruel and unusual punishment and unreasonable searches and seizures and exercise of religion, there's going to be a lot of subconscious internal stuff going on. Good judges like Justice Souter reflected on that. Scalia and Thomas do not. And she's the worst and she's the worst of all because her faith is I believe her faith is really genuine.
I mean, her Catholic faith. And it's going to determine her result being a podcast.
There is much the same. I just I mean, I'm just calling balls and strikes here.
I got to say on this this originalism thing, you know, I'm not a legal scholar, but I went back and I decided to read a few judgements about corruption this week, you know, spending, corruption, et cetera, et cetera, because of the big story about Donald Trump and essentially him rebuilding or constructing his own swamp. And the thing that struck me is I went back and I read the Citizens United decision. And, you know, this is written by this supposed textualists, the originalists, et cetera, et cetera.
And there's some stuff in there that is like so deranged and and and unhinged and like completely not like anywhere near anything in the constitution of the law. I mean, there's a line in there is just keep blowing my mind every time I read this, like independent expenditures, which of course is like super PAC expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That's literally in that ruling from textualists.
Judge Posner wrote a Slate piece on that sentence saying that Roberts said in another opinion to saying either Roberts is lying or dumb.
There's no other there's no other possibility he's lying or he's sorry.
No, I just the point is, is like to your point, it's like it has nothing to do with the text. Like, there's no like, oh, we're basing that on this thing in the Constitution or the law. It's just like P.S. there's no such thing as corruption. Politicians can't be bought.
That's now the way in that opinion, Justice Stevens in dissent in Citizens United, said that at the founding and for much later, corporations only had the rights states gave them.
They had no rights other than the state charter.
Justice Scalia responded to that. At least he responded to it. I give him credit. And what he said was, even if that was true at the founding, corporations have changed. So now it's different, which is right. That's the right that's the right answer to that question. But that's living constitutionalism, not originalism. Right. That's how Scalia did it his whole career.
So I was just reading that apparently Amy Cuddy buried herself, has acknowledged the undesirability of applying originalism across the board. So in 2016, apparently, she said, and adherence to originalism arguably requires, for example, this man. Filling up the administrative state, then validation of paper money, the reversal of Brown v. Board and other institutions that, quote, no serious person would propose to undo. And so then in twenty seventeen, she wrote that discretionary jurisdiction generally permits the court to choose whatever questions it wants to answer.
That's how she got out of it. So if there's this entire admission and I went through this to you, David, and there's this full admission that the basically by so-called originalists, that they're going to be an originalist up to a point and then do whatever they want to do. David, you've written a lot recently and been arguing a lot about the lack of emphasis that is on the corporate cases, the cases that have to do with money and politics, et cetera, that are often often take a backseat to the kind of cultural cases like affirmative action and abortion and freedom of religion issues that are front of mind, and that this originalism is kind of a cover for some of these cases.
Can you talk a little bit more about what's going on with those those types of cases? Sure.
I mean, the Supreme Court, if you if you pay attention to the media, if you pay attention to political ads, you might think that the Supreme Court only adjudicates religious issues, maybe some civil liberties, so-called social issues, which are important issues. But you wouldn't necessarily know that the Supreme Court most of the time, day to day wise, is dealing with essentially business issues, economic issues, issues about the relationship between corporations and their employees and on those issues.
Amy Barrett's record is extremely clear as she consistently sides with corporations. There was one study that was that said that fifty five of the cases that came before her court that dealt with the relationship between corporations and workers in 76 percent of those cases, she sided with the corporate side weeks before she was nominated to the court, literally weeks she issued a ruling that made it much harder for gig economy workers to essentially get overtime or at least sue in court for back pay and overtime pay.
And that was a decision essentially strengthening these arbitration agreements and saying you can't even come into court to have them litigated. And I think that what's gone on here is that when you look at all the dark money coming into the campaign to support her, that dark money, you know, tens of millions of dollars, that's not money that's coming in because she's a conservative on abortion. It's not coming and coming into into this campaign because she's religious issues and the like.
That's money that is that wants to make money. That's money from moguls who want the court to continue being a corporate star chamber, a rubber stamp for corporations, and they know it. Amy Barrett, that's her record. And she will create a six to three majority in favor of corporations essentially for the rest of our lives.
Nathan, I want to bring you into this. You came right out the gate, I believe, 30 minutes after Amy Barrett was announced with a fairly definitive analysis of her past of her legal career.
Could you discuss what you found there?
And the funny thing is that I didn't know anything about her legal career until the moment you were nominated. So I said, oh, let me just read all her opinions. And I almost I mean, I knew what I was looking for because I know what conservative jurisprudence is. And I kind of expected to find what I actually found, which is that you have a pattern. And it's not just ruling in favor of corporations and against workers. It's against prisoners and it's against plaintiffs.
It's it's just the it's ruling in favor of the powerful and against the powerless. So you take cases on policing. And of course, she doesn't see racial bias and she doesn't see the police as having done anything wrong. You take cases where some individual goes up against a corporation that has screwed them and she thinks it's fine and it was within the purview of the contract or whatever.
So you go through every area of law. And as I society, you know, the specifics we could go through. She's written opinions, but it's always this consistent thing. And this is this is kind of people want to understand what conservative jurisprudence is. A it's a body of it's an ideology that justifies the status quo. And the status quo is that some people have a lot more power than other people. And so it tends to believe the arguments of those who already have a lot of power and to disbelieve and throw doubt on the arguments of of those people who are poor and weak and sick.
And it's very similar to if we're talking about the the way the ideology functions, it's kind of similar to free market economics, where you could see why it's very appealing, because it looks like rationality and it pretends to be science. It pretends to be neutral. It pretends to be completely value free.
And what could be better than something that. Seems value free, but in fact, just so happens to produce all of the results that coincide with the thing you wanted to do anyway, so, you know, if you read your opinions, you find what you expect.
Do you think it's more effective? It would be more effective. If you want to stop a conservative judge, a right wing judge from joining the Supreme Court, do you think be more effective to fight on the terrain of the shifting ideology of the court being a kind of continuum between labor and capital as opposed to, say, ROE, which is always the banner issue?
First of all, there's no stopping this absent some kind of private, personal, you know, something comes up that's terrible.
There's no sure what we'll get. We'll get to that. But I mean, especially right now in three weeks before a presidential election where this is, of course, one of the biggest issues in that election. What is the case to be made against Barrett? I mean, what is what is what is the most, I suppose, worth thinking about this in terms of communications and perhaps electoral ism? What would you say the most effective case to be made is if you want to build a large majority that says no to a conservative Supreme Court.
I think most people that I talked to, either law students or laypeople, I do a lot of radio shows. I think a lot of people understand the unconscionable hypocrisy of not giving Garland a hearing or a seat and doing this for her for three days before the election. And I think it's smart to hit on that a lot. It doesn't matter who she is, she's irrelevant that we should be out fighting the virus, fighting climate change, fighting racial injustice.
We should not be spending our time doing this 30 days before an election.
But the other thing is she is going to be as or more conservative than Justice Thomas across the board.
And I think that's one way of approaching this. So you're adding another Justice Thomas, to the bench. And moderates, I think, understand how far to the right Thomas is. He'd overturn a lot of cases. She's going to be like that, she's going to be a conservative, aggressive judge, doesn't matter the issue and I think the American people have some sense of that.
I actually disagree in this sense. As somebody who's worked on a lot of campaigns, I actually think that the public I mean, we're living in a country where there's a sizable segment of people who describe themselves as liberals who think John Roberts is an acceptable moderate, like, I mean, which is kind of mind blowing based on who John Roberts is. So I would say that, yes, I agree with Merrick Garland. Point is certainly a good point.
It's just a straight up hypocrisy. I think that's a good point. Obviously, he's not going to convince the Republicans themselves, the lawmakers themselves to actually do what they said they were going to do. But for the public, it's a good message. I think that that trying to make the Supreme Court fight about something, about things that that actually affect people in their daily lives is actually the best strategy. And on this case, in this situation, you know, I'm not somebody who thinks the Democrats really do politics all that well, but I actually think their choice of the ACA and the preexisting condition protections in specific is not a stupid move in the sense of connecting the the the confirmation to you may literally lose preexisting condition protections right now.
And and we're still at a point where I think a lot of people can remember what it was like to live in a health care economy where you didn't have pre-existing conditions protections. So I think that's pretty smart. And I think, again, using some of the some of the confirmation to point out her position on issues in the workplace where people go to work, I think is is extremely important just to say to the population and the public that the Supreme Court matters to your daily lives.
Now, one last thing I'll say on that is the problem is that for many, many years, this really hasn't been part of how the public has understood the Supreme Court, that the Supreme Court confirmation hearings haven't really revolved around this. I mean, I can think of one example where for like one second corporate power issues took center stage. Remember when when Al Franken called out Gorsuch on the on the the case about the trucker who almost froze to death?
It was like for one second I was like, oh, my God, they're like the actual economy and workers and corporate power is taking center stage. And then it was like gone. Goodbye. I think that we're at a situation where the public doesn't necessarily even know to think about the Supreme Court through the prism of how would this affect my actual daily life trying to survive in an increasingly impossible economy.
I agree with that. In theory, I do. And I think the court has done most of its damage in the area you're talking about. I think I think it is pro chamber of Commerce all the way down. It's just awful. My experience with the American people is different now.
I come from a different perch, but they when they think of the Supreme Court, they think of abortion, affirmative action, guns, maybe Citizens United, and getting them to focus on things like the Federal Arbitration Act, which the court has just used to destroy workers, is next to impossible.
I've tried. I have tried. It is next to impossible. Well, it's a multi-year process.
And and, of course, you can't use terms like, say, you know, essentially you're going you're going to stop your boot on on workers, you know, for the rest of our lives.
On that point, I would say probably the Jannis decision comes up, too, particularly if you are a member of the labor union.
And by the way, speaking of Jannis, which all the originalist justices joined to overturn 23 state laws.
Twenty three state laws that required state workers.
So we're talking about state laws governing state workers to pay union dues because they got the benefit of the kind of bargaining that the union did.
They overturned those twenty three state laws without a syllable about originalism and that goes to the Apocrypha.
But I thought I thought they don't legislate from the bench. I was told that they don't make policy. They don't make policy to bring this back to what actually happened in the hearing today.
One of those issues that you mentioned, David, is health care. And what I found was that even though health care, you would imagine, is much more accessible issue than some of these labor issues, it still was one of the more opaque parts of the exchange. Did any of you on the on this panel catch that that exchange? There was a whole the colloquy about severability and the AMA. Yeah, yeah. Yeah.
Well, she's right, by the way. She made this mistake all day today and all day yesterday.
But she's wrong. Can you can you help us understand what the whole thing was about?
For those who didn't listen and who listened and didn't understand, the case that's coming to the Supreme Court involves an absolutely incredibly absurd district court opinion that was formed shop to a judge who hated President Obama, where he held the.
The Affordable Care Act unconstitutional, the reasoning was the mandate in the Affordable Care Act. Everybody remembers that you have to buy health insurance. The Supreme Court turned into a tax to save the statute, not that it was a tax. The twenty seventeen Congress said Americans don't have to pay that tax. OK, so there's no tax anymore, you don't have to use no penalty for not paying health insurance anymore.
The district court judge, I won't go through the reasoning because trust me, it is so bad somehow said that makes the entire act unconstitutional.
The severability part of that is if we call the mandate unconstitutional, what do we do with the rest of the statute? And he said, strike it down. The 5th Circuit said, do it again. Now the case is appealed to the Supreme Court.
Amy Komy Barrett said it 10 times yesterday and today that that severability part was not part of the original Obamacare case in 2012.
And she's wrong. Because the original Obamacare case struck down a big part of the statute, the Medicaid part, and when they struck that down, they had to figure out, do we just strike down this part or do we strike down the whole law?
And of course, they didn't strike down the whole law.
People are worried this Supreme Court is going to strike down the entire law based on the, you know, reasoning of that district court judge.
There are many terrible things we can say about the Supreme Court. And I've said them all.
They're not going to think they're not they're not going to do that.
And that conversation is sleep inducing for the American public anyway. There's no way the American public understand that conversation. And they didn't. I did.
And then I went to law school. So what shit what conversation about the ACA, if any, should we be having should they be having these hearings to highlight why we should be objecting to Amy coming? Barrett Clinic. Barrett Yeah.
I mean, I would say look, I would say this. I would say that again. I think the that narrowing it down to, you know, whatever you think about the specifics of the case of the of the ACA and severability, that ultimately this does jeopardize she could jeopardize basic protections for preexisting conditions. And I think that, you know, that maybe that's incredibly reductionist, maybe it's incredibly simple. But I do think that is something that the average person can absolutely understand.
Now, here's a problem. I will grant you that this is a problem, that what we have seen in some of the polling about some of these issues is that the Republicans have taken such extreme positions on some of these issues that there's a segment of the population that will not believe that they are trying to do what they are trying to do. Preexisting conditions is actually a good example that there's a segment of the of the population that you can see in polls that doesn't want preexisting condition protections gone and basically supports them like many and most people.
But when you tell them, hey, listen, this bill that the Republicans are pushing or this case that Donald Trump is pushing would actually get rid of preexisting condition protections, that people just won't believe it, like they will not believe that the Republicans would be that and insane. They presume that you're telling them a false story because it's so outlandish. And I think when it comes to this, I mean, that's a real challenge. And the Republicans arguably in kind of a diabolical scheme, they have figured out that they can actually take even more outrageous positions on the presumption that there's a certain segment of the population that won't even actually believe they're doing it well.
And Trump is smart enough to insist all the time that he's not going to take away pre-existing conditions. So they hear him say, no, no, no, we would never do that, even though that's exactly what they do.
Well, his lawyers are arguing that. But but let me just just for this, just between us here, I assume I'm here because not because of my political strategy, knowledge, which is zero, but because of my constitutional law, knowledge and Supreme Court knowledge. I can assure everybody who's watching this, I really can't.
They're not going to strike down the Affordable Care Act this fall or next June. It's not going to happen.
How are you so confident about that?
I will tell you, because Americans love they hate Republicans and conservatives don't like Obamacare, but they love what Obamacare does. You know, that's always bad. And they want to.
And and the vast majority of Americans believe preexisting conditions should be covered.
The Supreme Court very, very rarely goes against that dominant public opinion, really in health history.
It's they do occasionally, but it's very, very rare.
Don't they have the commerce clause in their sights? They do, but not on this. Not on this issue.
Another important point to remember is that the ACA is a pro insurance measure. Right. It's preserving the status quo over the years.
And one reason that Republicans the fight against it is is a little fake is because ultimately nothing serves the interests of the insurance industry better than preserving the status quo. They could have repealed it in twenty seventeen.
They had both houses in the president. They could have gotten rid of the filibuster and gotten rid of it.
The Supreme Court's not going to do that. Now they're going do terrible things, but they're going to do that.
Yeah, I would I would agree on the on the point about insurance and the ACA being a I mean, it basically props up the private insurance industry and that's that's what it does. And so it is not a straight up, you know, easy to understand people versus the powerful situation because there's a lot of power behind it. Preserving the ACA. I tend to defer to you on what the court would do vis a vis know, going against popular opinion.
That's that's that majoritarian. Although I would say there's one asterisk. Right. That may be true on a five to four court, but like on a six to three court. Right. You can you can give up one vote.
Yeah, right. Right. You're right. And the and the and you're right.
And in most cases, first of all, Justice Roberts has done helping liberals. He's going to after this election, he's going to go for his. They saw, like four times in his career, it's not like it's like but here's the thing, he's not going to strike down the ACA.
And the first thing, Judge Barritt, Judge Barrett is not going to in her first year or two on the bench, do something that Justice Roberts absolutely, unequivocally feels strongly she shouldn't do.
And I don't think Gorsuch will either, which explains the votes of Gorsuch and Roberts in the in the in the in case involving Title seven and sexual orientation LGBTQ. I wrote a piece on this.
Like 70 percent of America think gay and lesbians should have equal rights at work when the public opinion is that dominant. It is a rare thing for the Supreme Court to go against it.
That's a very that's a very originalist of them, frankly. But I want to I want to open this up to the panel.
What if not the ACA than what is on the table in a six three Supreme Court?
Everything they're going to because they're going to they're going to they're going to they're going to first dissect Casey. It's not Roe, by the way. It is Casey. Roe is gone.
It's so annoying to me to watch this debate about Roe. Roe has been gone since 1990 to the governing law as Casey. And they're going to dissect it, then overturn it. They're going to expand Second Amendment rights. They're going to make him.
So can you, because that is such a central issue for so many people, so many Democrats that are listening. I'm curious what on what grounds can you unpack a little bit more what we can expect them to argue with respect to Casey?
The first thing that's going to happen is there's a case in Alabama with a 15 week ban on abortions when that case gets to the Supreme Court because lower courts are going to have to strike it down when it goes to the Supreme Court. They're going to uphold it. And that's going to be a and that's way before viability.
So it's going to just be a slow march back or maybe not so slow march back of when viability.
Yes, I see. That's the first thing that's going to happen.
They're going to they're going to let them regulate clinics out of existence, which they already do some degree.
Yeah, that's going to happen. And then and this is Justice Roberts to of the Voting Rights Act.
Same thing. First he first he dissects it, then he overturns it. They're going to do all that.
And then like eight years from now or six years from now or whatever it is, they're going to say, see, it's no longer a good precedent and they can overturn it altogether.
And to your point about the about majority public opinion, I mean, I think, you know, one of the things that that the that I think a lot of folks who are who don't follow this all that closely don't appreciate about Roberts. Is that to. And you could tell me if you think I'm wrong, but but it's like he's constantly playing the long game to preserve the perceived legitimacy of the court as he moves it further and further to the right.
It's almost like, you know, the metaphor of the frog in the boiling water. It's like you turn the water up a degree every now and again and the frog doesn't notice that the water is boiling. It's that it's that when he is when he has joined the liberals, it feels like he's joined them to sort of preserve. It's not because he necessarily agrees with what the cause of the of the of the liberal side of the court. It's that he's saying, listen, if we take it too far, if let's say we overturn, we throw out the ACA, that threatens the perceived complete legitimacy of the institution of the court.
David, it's worse than that. That's all true.
And you will notice that his two biggest liberal decisions ever were in 20 June 2012 before that election and when he upheld the Affordable Care Act, although he struck down a big part of it.
And June, twenty twenty before this election. Make no mistake, his long game includes not only the institutional integrity of the court, which I give him credit for, but also.
Republican Party staying dominant, and he knew that if he had joined with the conservatives to overturn whole women's health, the abortion case from four years ago, and if they had upheld those ridiculous restrictions on abortion clinics in June of this year, that would have really hurt the Republican Party and it would have really helped the Democratic Party.
And he knew that. So it's even more diabolical than you're saying. It's also about just mainstream politics.
So, Nathan, having actually gone through and done this Herculean work of reading all of this case law, you perhaps you might be the person on this panel most intimately familiar with who the essence of who she is, at least as at least jurisprudentially.
So I'm curious, you know, can you give us some examples of cases that you thought were particularly revealing about her character and how she might come out and particular on some of these police violence cases that have obviously been a point of national discussion over the course of the summer?
Yeah, well, I mean, in one respect, you know, Eric was completely correct in that she doesn't really matter. You know, she thought she a particularly interesting about Amy Koney Barrett. It's a you know, conservative jurisprudence is is kind of one thing. And you go through and she happened to deal with some police cases.
And, you know, there was one in which we weren't really egregious case that I kind of started with where a guy had been identified by eyewitness testimony only this was a this was a black defendant who had said just to 35 years for attempted murder.
And the eyewitness testimony was one guy who saw him on the dock without his glasses. And then it turned out that they had concealed evidence that the prosecution had hypnotized the star witness in order to improve his recollection. They can see they did not tell the defense. And Amy Codi, in fact, that God, Amy Barrett was in the minority on this. She was dissenting because the majority concluded that this was a clear that, well, the actual issue was whether the state court reasonably decided that this wasn't prejudicial enough to overturn.
And she thought the state court was perfectly reasonable in saying that that was fine. And that's very scary. Right, because it shows one of the points that I make that shows how ignorant not just she is, but this this way of this except me.
And she talks about I'm just applying the law. And of course, our entire thing is just citing precedents that show the standard of reasonableness that a court does. A state court can exercise why this case falls in that box. And it's all it's all it's doing. All of the opinions contained the same stuff as you'll hear at the hearings about like, oh, well, all I'm doing is I'm bound, I'm bound. I can't I can't do otherwise because the law is what dictates this outcome, even though it all hinges on a subjective conception of reasonable reasonableness.
I think this is an important point for for laypeople to understand that so much so many of these legal terms are just legal terms for subjectivity. And so you talk in the article about like she must not have any sense of like the fact of racial bias, which was interesting because that was actually a talking point today in the hearings, one that Cory Booker actually drill down on rather nicely in that in the hours before we came on live today, he asked her and it took her a lot of wrangling, but he got her actually to admit I was a little surprised that there is bias in our criminal justice system.
And I know she didn't know. I'm sorry. I'm sorry. But she did not I don't think I don't think. Well, she said that. She said no, but she admitted there was bias. I don't think she admitted there was racial bias. You're aware of evidence that there is implicit racial bias?
I am aware that there have been studies showing that implicit bias is present in many contexts, including in the criminal justice system.
I think I think you're right. You're right. So she it was it was a whole tangled back and forth and he dropped. You're right. But he didn't seem to notice that she dropped racial. But bias, I thought, was farther than he was going to get, to be honest. And I do think that there's something happening here where she said, well, let me ask ask you guys. Do you think the fact that she has a lot has been made up of her two adopted children from Haiti has made her feel like she's under more pressure to be a little bit more forthcoming on those kinds of points than she might otherwise have been?
She wasn't forthcoming. Yes, that's the say he's right, because if you I mean, I was fascinated with you. When you write out her responses, you could see she I mean, she's a very good legal academics, right. Because she's so good with the weasel words.
She's so good at saying she answered the question by saying, I am not hostile to the ACA. Well, you know, what is Hosta who's hostile?
She said, oh, I will decide cases fairly. You know, I will decide cases. You know, I'm just here to apply the law. I will definitely enforce by every time she gives an answer, she does this. She did this a lot because it had to slightly reword the question so that the answer becomes meaningless. And do you think there is bias in the criminal racial bias of the justice? And you reply, I believe there is bias in the criminal justice system as big and expansive as ours.
It is definitely not to be unbiased.
And I can make this clear for you all.
I mean, again, I don't mean to generalize, but but there are generalizations that can be made. There's a group of conservative libertarians who are in the 30s coming up behind her that is great, that are great on criminal justice system. The Cato, which I hate, the Cato Institute, which I despise, has a vice president of criminal justice who is better on criminal and racial bias in our criminal justice system than any liberal. I know. But she's ten years older than those people and she's not part of that group.
And she absolutely was afraid to admit what everyone who applies for a judgeship anywhere from traffic court to the Supreme Court should admit that, of course, our criminal justice system has huge racial bias. And I will do just that. I'll do my best to avoid that. I think I do. But not admitting that she's not eligible to be a traffic court judge, in my opinion, and she wouldn't admit it. And I wish you were ten years younger.
If she were ten years younger, she would have admitted.
Professor, I heard that when you put on that black robe, you become impartial, neutral umpire.
You're an umpire. That's what I heard all over and over again today.
In fairness, let's be fair. Let's be fair. About four or five months before Justice Sotomayor was nominated, she gave an impassioned. Perfect speech at Berkeley saying, of course, a wise Latina woman is going to decide a lot of cases differently than a white male, and she said everything we all know. And then in her hearing, she walked it back and she wouldn't and she wouldn't accept she changed her mind.
I mean, she changed what she said.
Well, she was kind of bullied into it. No, no, she wasn't voted no. Well, this is really important is that actually the liberal justices often reaffirm this same kind of myth. Ginsburg said the same kind of thing. And one reason for it is because when we talk about the institutional legitimacy of the Supreme Court, many features of the Supreme Court don't seem legitimate at all. It's a small, unelected body of people that has the power to veto almost any law in the country.
Right. So if you admitted the true nature of the court, it just wouldn't seem very legitimate. So there even the liberal justices are have to be kind of invested in a Kagan calls herself a textualist.
Right. They say she didn't she didn't know that.
OK, that's a talking point on the right. That's not true. She did say she did say I'm an originalist. But here's what she meant in the next before she said she was an originalist.
Before she said that, she said in the sentence before that I've written the whole thing on this on the since before that. She said sometimes they laid down clear rules. Sometimes they laid down broad principles. To that extent, we are all originalists. Litigation only involves broad principles. It doesn't involve clear rules. And in broad principles.
She's not a textual because I mean, no, I totally agree that she's not actually the thing that and obviously she includes enough caveats. Everyone includes enough caveats to get themselves out of actually committing to the thing. No, I don't think.
But the reason I cite that is because everyone is sort of invested in presenting this neutrality view of the law. Nobody wants to say what I'm doing is purely subjective. I oppose my values because then how do you justify having this small number of educated Nathan Nathan deciding I abortion?
I wrote an entire book tracing the Supreme Court's history on major cases from three to today and said the Supreme Court is not a court because it is not bound by preexisting law in any meaningful way. And you're right, liberals and conservatives alike won't admit that, with one exception.
Justice Souter gave a Harvard commencement speech. That's the best public statement ever made by a Supreme Court justice since all of the homes where he where he said we have discretion. And if people don't understand that, I don't get it because the text is unclear. The history is contested. Of course, we have discretion, but he's the only one who's ever.
Well, this goes back to what I was trying to get out of the panel a little earlier, conceiving of originalism as its fundamentally propaganda, its PR.
And I think that the majority of people are not really interested in how the sausage is made.
This is all really processed stuff that we're talking about that's going to sound pretty good to a layman, to if you're a right wing nominee, to say, well, you know, I'm just applying the law. You know, my personal preferences, you know, they don't come into this. It's not ideological at all. There's no bias, whatever. That sounds pretty good. I'm saying, what should the appropriate response, rebuttal to that be? What's an alternate conception of the Supreme Court that should be articulated?
So when I went around the country in 2012 and 13, talking about how the Supreme Court is not a court because law doesn't matter to them. Virtually, I mean, I cannot tell you how many smart accountants, doctors, economists, political scientists all say, of course we know that.
What are you talking about? Of course, of course. That's true.
It is only law professors that fight against the public already buys it. So and I'll show up after this.
I think the talking point needs to be. Everybody knows that the Supreme Court decides cases based on their values writ large and we need to weaken this institution that is doing so much damage and so much harm because there is no justification for being ruled by unelected life tenured.
People for whom God doesn't matter, it's a council of elders. So and I think that, you know, Virgil, I think your point is I mean, this is a longer term project, right? I mean, you've got 20, 30, 40 years of essentially every time the Supreme Court pops up in the Supreme Court nominee, pops up in the public consciousness, it's like, oh, the Supreme Court's just calls balls and strikes. It's not a political place, et cetera, et cetera.
I mean, it is it's a highly political place and it makes law and policy all the time. And so the I think the point I'm making is that Democrats, progressives, the groups organizing around these these confirmation hearings shouldn't concede the idea that the Supreme Court is this sort of apolitical chamber, that you can't take politics out of politics, that, you know, you have a problem when you have for instance, you know, there's a stat that went around today.
You know, it was it was basically that if Donald Trump gets any better confirmed, Donald Trump will have appointed more Supreme Court or as many Supreme Court justices as all Democratic presidents have in the last twenty six years.
One fact, one fact, one fact.
Cavnar, Roberts and Barrett all worked on Bush versus Gore for the Republican Party interests.
That's where their allegiance is.
Also another part that I think another aspect of this that I think the public has to recognize is that it's not just arbitrarily one side. It's not arbitrarily that the right wing seems to have been been really successful at messaging on the whether they have and pushing judges toward the court, ideologically confirming judges toward the court. It is that they have this institution Fed SOC, which has been doing a lot of this really proactive work that doesn't seem to have a liberal counterpart that you funded in the same way.
So can you talk a little bit about the difference, what that stock is? And the difference is between Fed SOC and the American constitutional society, which is ostensibly the progressive alternative, the leftist alternative.
So I had an op ed in New York Times in June on this. We can hold two ideas in our head at the same time. We're all smart. The public is smart enough to lead to ideas I can hold.
I'm at 60 two. I'm good with about two, maybe three.
The Federalist Society holds thousands of excellent debates and student run events are taking them all the time, although I have a disclaimer when I do, but I partake in them all the time and they do a very good job of that. And we should applaud that because they normally have a balanced stuff and good debates. And the leadership has been behind conservative nominees to the bench since nineteen eighty four and they deny it.
It's the denial that's the problem.
So I'm a board member of the American Constitution Society. Are we do not do not we have nothing on our website that says we don't support nominees for public office. They have on their website that they don't support nominees for public office. It's the lie that's the most important. I have no way of getting dark money out of everything. I'll leave that to you guys. But it's the it's the lack of transparency.
Now, the Federalist Society was born out of outrage at the Warren Court's liberalism, and it was incredibly well funded from the start. And it's has one hundred times more money than the American Constitution Society. And that's the fault of the left.
That is crazy because I look at all the money, like how how much has the Lincoln Project, how much have the Lincoln Project raised in the last few months versus.
But they're not. But Lincoln Society is just basically Dick Cheney. No, no, I don't.
But that's my point. That's my point. All of these liberals are donating millions of dollars to the Lincoln Project when they could be focusing their efforts on letting the ax get some parity with footsore. And I don't know that the Democratic leadership has sufficiently advertised the extent to which that that is a fight that we need to be more invested in, at least as much as kind of cheeky commercials.
But here, OK, so here's the problem. And you're absolutely right. Here's the problem. Here's a good example. Jamie Harrison, one Senate candidate in one state, in a small state just raised in one quarter. Fifty seven million dollars. He's Grandy's running against one of the most odious Republicans. And Lindsey Graham, the chairman of the Judiciary Committee. That is much of that, not all of it, but much of it is grassroots money. People around the country can't stand Lindsey Graham want them out.
And that's a different kind of money, a different kind of resources than the kinds of resources that fund the conservative infrastructure, which is like Charles Koch and billionaire foundations, which which in a sense, the conservative money is easier to organize shrewdly because it's essentially controlled by a handful of people who are shrewd political players. And so. One of the problems in our and asymmetrical problems in our in our politics is that is that grassroots money tends to follow our essentially our candidate focused follower culture that exists in sort of popular culture.
Right. Like Twitter followers, social media, like it's it's a very candidate, individual centric kind of resources versus the conservative infrastructure is funded by people who essentially have a shrewd long term game that they're playing in politics. So you can and I hear you like you think of that as a asymmetry there, like fifty seven million dollars to one Senate candidate in one quarter. And meanwhile, the conservatives are spending a huge amount of money to basically take over or or fortify their position on the Supreme Court for the next 30 years.
Right. And fifty seven million dollars. Meanwhile, it's a million dollars is focused on one Senate candidate. It's like, oh, my God. Like we're not seeing the forest through the trees. But again, the problem is it's like two different kinds of funding sources there.
I didn't mean to ascribe blame there, but I think that there is to the extent that Democrats aren't, I think, message to untold about the relevance of the court and the battles that are ongoing.
And the same way that I think Lamen Republicans are much more able to talk in terms of activist judge versus a textualist judge is in some ways an indictment of our leadership. And to the extent that they could be encouraging people to donate in one direction instead of being Lincoln, we project sort of a direction. I would like to see more of that.
Yeah, one last thing I'll say is also the media, right? I mean, like you have Fox News and conservative media constantly focused on the Supreme Court from a right wing perspective. I mean, you know, I don't watch a lot of MSNBC as an example, but I don't think MSNBC is talking a lot about, you know, Amy Komy, Tony Barrett, you know, kicking workers and siding with corporations all the time. I mean, in part because, like, you know, MSNBC is, you know, the ownership doesn't mind, you know, a set of rulings that help corporations.
Right. So so there's there's also an asymmetry there.
One other problem in The Washington Post, The New York Times, this, in fact, happened with Cavnar and it's happening with Barrett, too, is you keep getting this sort of trickle of I'm a liberal, but I support Kavanaugh's Barrett because and the reasoning is interesting.
It's a meritocratic argument, which is essentially we have our differences.
But and you can hear Barack Obama making this argument to have our differences. But they are smart and they are qualified.
One thing we really need to purge from liberal ideology is the conflation of academic talent and virtue, this sense that we don't want to fight. I think part of the lack of willingness to fight and fight hard is that a lot of people move in the same kinds of circles.
Ruth Bader Ginsburg and Antonin Scalia went to the opera together, riding a kind of friendliness and not seeing us as enemies between 18 03 and eighteen sixty nine.
Everybody in government understood that the core was a political partisan institution that had to be manipulated by political parties. There were so many fights. The number, the number went from six to five to seven to six to nine to 10 to nine. They changed a number all the time because they knew that this was a partisan institution making partisan decisions. And somewhere along the line, Justice O'Connor said it was when television started. And maybe she's right that she was the first she was the first televised hearing.
And she said after that it was a disaster. I think she's right. We got to this point where if you are reasonably qualified, academic or lower court judge, you get to the Supreme Court or Justice Thomas's case.
He wasn't anything. He had been a judge for a year and he wasn't qualified anything. But leaving that aside, we've gone to the point now where we have to concede the qualifications point and make. That is exactly right. The battleground has to change on that. OK, Judge Barry, you're a really smart person, but you hold pernicious personal views on many subjects, so we're not going to support you. That's what would have happened. That's what happened 18 30.
It should happen today.
I want to know what each of you are, what your views are on this conversation about court packing that's going on, and in particular, perhaps through to completion of what you think about how Joe Biden is handling the pressure to answer what he thinks should be done.
So court packing, quote unquote. I put that in quotes because it's a it's a garbage term that's designed to marginalize the idea of expanding the courts. I think about a couple of ways. One, the founders didn't enshrine a number of justices in the concept. And you can debate why they didn't enshrine a no, but they didn't. That power was given to Congress and that gives Congress the ability or at least the flexibility to make sure that the court doesn't become a completely disconnected star chamber that has no connection to what the public actually wants.
Right. You don't you want an independent judiciary, but you don't want a judiciary that's so independent that it's that it's basically divorced from from the population that it's supposed to be adjudicating matters on. So so any argument about court packing or expanding the court is is somehow impossible or outrageous. I mean, you know, the Constitution allows it. And and I would argue it allows it for for that precise reason. The politics of it, of it, you know, Biden running around being like, I'll tell you about if I'm for court expansion later, I'm being coy about it.
I mean, that's just idiotic to me in a sense of like you're just you're like creating an issue, like you're trying to you're trying to be cute or coy or mysterious. And we know that that, like, the media will then just chase you for that forever. And I don't think I don't think this is it shouldn't be that difficult a question in this sense. Politically, I'm talking about if like on the campaign trail, if you're a Democrat running for the Senate and you're telling voters, look, I really I will do everything that I can to protect the Affordable Care Act or a woman's right to choose or labor rights or union rights, whatever it is.
Instead, sex with same sex marriage, same sex marriage, insert, whatever, you know, thing that you've been telling your voters you will go to the wall for. Then when they go, OK, if you support expanding the court, if insert popular thing, you know, a woman's right to choose labor rights, union union rights, et cetera, et cetera, if those things are under attack by this court, I will consider supporting anything to protect those rights, any any legal measure to protect those rights, including expanding the court.
This is not a hard thing to do. And the thing that's gone on is that the Democrats in for the most part, other than one Senate candidate who's done this, Steve Bullock in Montana has actually essentially said said this. But but but but ever every other Senate candidate has run away from this. Even in my state, which, you know, John Hickenlooper is the Senate nominee here in a state that should go to the Democrats. He's run away from this question.
And what they what that allows the Republicans to do is make this only a process argument of a conceptual abstract power argument about process of packing the court versus not packing the court, as opposed to flipping it around and being like, listen, I'm not going to allow preexisting condition protections to go. And if that means we have to expand the court, then that's what I'm going to do to make sure that millions of people in my state don't, you know, essentially get stomped on by the insurance companies.
And the Democrats haven't done that. And they've effectively given the Republicans this sort of fake process argument. And I just think that's an incredible mistake. And I also think, like playing coy about it's a mistake. And ultimately, here's the bottom line. If they do get buried on the court, is the Democratic Party really going to get in there and say, listen, we're going to legislate all this stuff and we're really going to fight for all this stuff?
But, hey, there's this permanent six to three majority on the court that could just repeal everything that we're doing. Are they going to do that? I mean, I guess I wouldn't be surprised if they do that, but that would be pretty bad. Pretty heinous.
David, it's not just the Supreme Court. I'm sorry, but this is important point. No one no one made this point today. And it's a really important point.
It's not just the Supreme Court, it's the Federalist Society judges that have flooded the lower courts and what is going to happen is they're going to strike down all this stuff and the Supreme Court's going to deny cert.
So the Supreme Court's not going to take the blame for it. And that makes everything much, much, much worse. It's one of the thing about court packing.
And I've written so much about this, and I'm pretty sure I'm right politically, it's not court packing, it is court weakening.
And what politicians need to sell is whether you're on the left or the right or the center, the Supreme Court has become too powerful and too much of a force.
And we shouldn't be having your confirmation hearing. Everybody watches three days before the election.
What we need to do is put an even number of Republican and Democratic justices on the court so that every single decision has to be bipartisan. That would weaken it tremendously.
I have all kinds of other things to do about lower courts, but the message has to be, I'm going to protect I'm going to protect the things you care about by weakening the court, not by packing the court.
Important to that is when you're saying I'm going to fight for the things you want, protect the things that matter to you.
You we have a response to because Republicans say, well, you'll do that at the expense of our institutions. It sounds fine. What if I can sound like you're. Well, I'll run roughshod over the law. I don't care about the rule of law. I don't care about institutions. I just care about outcomes.
But actually, the institutional legitimacy argument is on our side, too, right. When we're talking about what to do about the Supreme Court, we're not just talking about having a Supreme Court that has the outcomes we want.
We we're talking about having an institution that can be defended, the structure of it not being ruled by a council of elders.
Right. That just rotates according to the vagaries of whoever happens to be out of the presidency at a particular time and who dies? Well, you know, Ruth Bader Ginsburg, cancer is determining the future of health care policy.
I mean, that's that's nuts. And I think we need to show that what it does is it makes the court an absurdity. It makes it so that there's no reason to respect its decisions. And what we are doing is reforming to try and make a a court. Decisions might have some reason for people to give them some credence.
Adam Winkler of UCLA, who studied the Supreme Court, made a really good point in an interview I did with him, which is that, you know, if you're going to expand the court, arguably you don't want to expand it by one or two or three judges because that arguably looks like a power play. You actually want to expand it to like twenty, twenty five, even thirty what some of the circuit courts are to basically say we're trying to more democratize the court or at least make it more reflective of public will and more more sort of or less political unto itself, that if you only do two or three, you know, then you're walking into the into the Republicans argument at all.
You're just doing it because you don't care about the institution unless it comes with a provision proviso that there has to be an equal number of seats, then it can be 10 or 12.
Adam Winkler, father, by the way, is Irving Winkler, who is the great Hollywood producer of all kinds of lost in space and all kinds of other amazing. Yeah, his father is Irving. Yeah.
I've been making Nathans argument as an academic for twenty five years and I've been making them both to lawyers and non lawyers.
I wrote a book making all those arguments in twenty twelve. I always start off saying I'm a progressive, I'm a liberal and the court is broken. I don't care if it's all liberal, it's a broken institution and they think the way to get there, I think.
And the problem is Congress is full of lawyers who come from law elite law schools or the law schools who have invested in lawyers have a vested interest in the court being this powerful.
I really think you guys in the trenches need to find some political scientists, almost all of whom agree with everything we're saying, almost all of whom agree with it, and get them on our side, because some good, articulate political scientists who have done the data, who have numbers and can say to the public, look, the court has voted Republican, 86 percent of the Senate the White House is doing.
That's what needs to happen.
And it's hard it's a hard battle because lawyers are so entrenched in how powerful the Supreme Court is. It's really hard.
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Before we go, I know we're going a little long, but I wanted to make sure we had a conversation about why we're even here to begin with. I know, David, you wrote and argued a lot about certain strategic and procedural opportunities that were available to Congress to try to stop this hearing from taking place. What were those and why weren't they taken advantage of or will they be?
The Democrats have obviously not a ton of power to try to slow down the nomination. They have some power to delay it, to stall it. And, you know, I think that that that the argument is, is that every hour, every day that they stall, it is is better than not trying to stall it. At the beginning of this, you know, after Justice Ginsburg died, there was basically the Democrats essentially saying we can't do anything.
And there's actually no point to doing anything because the Republicans can just, you know, ram this nomination through. And then, of course, what ended up happening was there was a lot of pressure on Chuck Schumer to actually try to do some things and he did a few things.
And then covid struck. And then it was like, oh, actually, you know, maybe this situation really is kind of more fluid. And I think that's actually was was kind of the point, which is that, you know, on a day to day, moment to moment basis, it may seem like there can nothing can be done. But like we're living in a world where things are unpredictable and like playing for time and stalling for hours or a few days.
We can get a few days here, hours here. You know, maybe that's like worthwhile like like why you'll lose one hundred percent of the battles that you don't fight.
Let's talk about this. So right now, as we're recording, they have three weeks to put this nominee on the court before Election Day, perhaps before they lose a special election in Arizona that would reduce a majority by one and live on to fight another day. Right now, the Judiciary Committee hearing is a vote is scheduled for Thursday.
It will be delayed by one week. That's one procedural tactic they can use. What else can the judiciary, members of the Judiciary Committee do to slow down the hearings themselves?
Well, the one thing that they have that we don't know will happen or not happen is that they can actually try to put privileged resolutions onto the Senate floor. Now, there's a debate about what happens when you put one of these resolutions onto the floor. But it's stuff like war powers stuff. It's stuff. It's stuff that that that by the existing Senate rules are supposed to be prioritized for the Senate calendar. Now, there's a question, you know, can Mitch McConnell sort of short circuit that can he can he change the Senate rules?
And by the way, the House has a huge role to play in this. The House can also pass like an articles of impeachment of Bob Barr, send impeachment articles over to the Senate to try to which are are considered privileged under Senate rules. Now, I know the argument is, well, Mitch McConnell can then change all the rules. He can go nuclear and change the rules. But my argument on that and the the the folks who are pushing for a kind of do everything possible to slow this nomination down is make Mitch McConnell have to do that.
Like everything that you make McConnell have to do that further legitimizes the process is good for the cause of trying to slow this down. And arguably, even if Barack gets on the court for four, then later expanding the court in the name of the of the the fact that the Republicans delegitimize the entire process. And so the question is, will Democrats do that? I mean, the House right now could send over an article of impeachment on Bob Barr.
They could do that. Mitch McConnell, in theory, would have to then change the rules of the Senate to just put the the Barrett nomination on the floor of the Senate. And, you know, I know the argument is, well, well, if he can do that, then why have the fight? Well, no, it's the other way around. Ask yourself the question, what would Mitch McConnell do? Right. Well, that's the ultimate question.
Right? I would ask everybody here if that's so sad about it.
Right. If the Democratic argument is we have no power to stop this, OK, if that's if you take that argument, we have no power to stop this, would anybody believe that would be the case if Mitch McConnell was if the roles were reversed, like Mitch McConnell would would would would try. And probably, unfortunately, probably succeed if the roles were reversed in at least slowing this down and potentially stopping it until after the election.
We're talking 12 days from the Judiciary Committee votes to Election Day. Are we in territory where even the ticky tacky stuff, if done correctly, can effectively slow down the Senate to the point where they can't have this hearing? I'm talking things like revoking unanimous consent for every single thing, forcing a full vote on the Senate floor for everything, just even like what what we can eat for lunch.
Just filing frivolous, Kaura.
I don't want to say that there's one hundred percent that they can be successful because again, McConnell can. No, no, there's no one to change the rules.
He can go, you know, quote unquote go nuclear if he really is forced to. And I don't, I don't put it past him to do that. But I think to your point, which is McConnell's margin of error on the schedule, at least between now and the election, is so small, it's so slim that every you know, if you can get a couple of hours here, a couple of hours, they shut it down for a day here.
Don't do unanimous consent there. And then, you know, and then again to my my point earlier, then, like something with covid happens or the Republicans can't get back. Or by the way, maybe there's a Republican, a set of Republican senators who don't want to have to go sit in Washington because they're afraid they're about to lose their reelection battle.
I think all of that is a sound thing. I have a big caveat, though, so I've been trying to figure out why they rushed this nomination in terms of the election, because if the seat was open, Trump could have made the argument, you have to re-elect me so that I'll fill the seat. So evangelicals show up, even even the evangelicals who decided they can't stomach Trump again. Now, you've got to show up because there's an empty seat.
And if Biden wins, he gets the seat. I've been trying to figure out why they didn't do that, because that's a very sound strategy for them. And I figured it out. And David, I think it makes your strategy.
I'm not I'm saying I'm not sure. I think the more the next three weeks is about the Supreme Court, the much worse it is for the election. And yes, the Supreme Court's a losing issue for Democrats and their interest is so I think they did this so covid would go in the back burner. So so climate change would go in the back burner. So racial injustice would go on the back burner. And everybody's talking about Supreme Court. And if the Democrats are somewhat successful in these intricate strategies and then there's this big debate in the media and the public and the senators about how the Democrats it's all about the Supreme Court.
We don't want this election to be about the Supreme Court. We really don't.
I tend to come out of the school of thought that politics is more like VEP than House of Cards. Right. That that there's this idea that, you know, Mitch McConnell's gamed everything out. It's house of cards. It's you know, I think politics is often even on the Republican side is a lot more VEP. And I think what's going on right here is like we got the bird in hand to permanently shift the Supreme Court for the next 30 years.
So we don't Mitch McConnell doesn't want any variable. Right. The variable being if Joe Biden wins on in November, then is that going to change the psychology of the court to assuming psychology of the Senate in a lame duck session to just scare off some of my people who are running in twenty, twenty two? I don't have to deal with that. So the bird in hand to permanently change the court to six to three is to just get it done before the election.
I mean, I don't know which one of us is right, but I think that's what's going on. They're smarter than 20, 16 Democrats.
Michael Steele told me on the air three years ago when he still his show, the former head of Republican Party, Michael Steele, said to me that there was something that no Republican senator can do, no problem trying to do, which is get in the way of Mitch McConnell's judges. Unless there are they already have 50 votes and doesn't care.
But if they stop, if they actually stop judges, all funding will stop. They will they will get no support. So, David, I agree that's likely Mitch McConnell's strategy.
How how much that translated to this? I think it still helps the Republicans to put the Supreme Court in the news.
And that's what's going on right now.
So so the position of the Democratic leadership, in essence, is we've got to lose this court fight or rather not fight back and then, you know, get elected, retake the Senate, retake the White House and then do nothing to mitigate the power of a conservative court.
No, I mean, I think you look at if you're Chuck Schumer, right? I mean, Chuck Schumer, his whole life is is revolves around becoming Senate majority leader. So the problem is, is that, you know, to to your point, which is that he may think that that that doing everything possible to stop the nominee is actually at odds with becoming Senate majority leader. Now, I happen to disagree. I think that this election is that there's so much momentum and so many other things going on in this election that I don't think the Supreme Court fight is ultimately going to try to shift the the Senate elections for, for example.
But I think, look, if Schumer's leading the strategy and he's afraid that actually going all the way to the wall to stop the Supreme Court from being from Barack being confirmed, gets in the way of him becoming Senate majority leader, then I think he's the kind of guy who thinks, you know, I'll live to fight another day, which in Democratic speakers, they'll live to not fight another day ever. They never lose the ability to not fight, you know.
So that's an interesting contrast with McConnell, who is willing to cede a majority Senate seat, his position of majority leader for this permanent court.
I mean, because here's I think Mitch McConnell has a view that, like, if I can take over and solidify a majority on a coequal branch of government for 30 years and maybe lose it, I think he's also thinking about this maybe lose the Senate for two years. Right. Like, arguably what's what. I mean, I don't think anybody would be surprised. I'm not saying I want this to happen, but I think there's a situation. You know, Obama gets elected in 08, right.
Comes in with a 60 vote caucus right. In the Senate. And then two years later, it's like goodbye. So I think Mitch McConnell is like, look, if I get Barrett through, I don't care how illegitimate the process is. I've now got a permanent majority on a coequal branch of government and one that. And then two years later, I'll come back and I'll like, you know, I'll have a shot to take back the Senate, you know, and then maybe, you know, so so that's a good trade off for him if you're him.
Yeah. One thing. One thing that's interesting is so a guy named Barry Friedman wrote a 500 page book about how the Supreme Court doesn't veer too far from dominant opinion, left of center, right of center.
And historically, that's been true with three exceptions.
I think Dred Scott might be an exception to that. Certainly all the court from nineteen hundred nineteen thirty was an exception to that.
But I think if this court goes six three in the direction that it's going, and if Alito and Thomas are the dominant members of the court with Kavanaugh, probably the court will get out of touch with public opinion.
If that happens, just to make you guys sleep better at night.
If that happens, there will be a huge progressive backlash and I'm not sure what we should want.
In other words, I got to be honest, I think the court doing terrible things in the short run could lead to great things for America in the long run, an accelerating acceleration.
I think it's complicated.
I think I'm just I'm just saying it's complicated. It's it's a complicated thing. Roberts knows that. But if there are five other justices who don't. I don't know. Well, there's this also this possibility that whatever backlash happens, whether it's because the court does something particularly bad and conservative over, it's just because at the moment we're all in where we're frustrated with the hypocrisy of the Republican Party and this appointment that the threat of court packing, if the conversation about whatever you want to call it, court rebalancing or blowing your neck.
No weakening, weakening the court. I think 20 people to the core court reform, whatever it is, there's a possibility that you get what happened last time this happened, which is not the court packing actually was carried out, but that the court just fell in line. Do we do that? That's a possibility. The threat is going to be enough to make everyone conform.
So what you're referring to is really important. So just real quickly, I know we're out of time. From nineteen hundred to nineteen thirty six, the Supreme Court struck down around 200 laws about minimum wages, overtime laws, worker safety deal stuff.
Yeah, the men who did that came of age in the 70s and 80s when it was incomprehensible that the federal government would be this big. It was incomprehensible to them.
So they were just voting how they grew up. And that's what happened. That's the problem with life tenure. Someone said 30 years. You're wrong about that. It's 40 years. Like I mean, justice is appointed at forty five May, given the medicine 30 years from now, will likely serve to their ninety five. Make Justice Stevens did in 92, Ginsburg eighty seven. So listen to what you were saying earlier.
This is how broken this institution is. It goes through cycles of getting totally out of touch with the American people.
Then someone comes in and threatens them like, like you said, and then they back down a little bit and they do it all over again. Thirty years later, that cycle has to end and life tenure has to end.
It just does. I think we're out of time here unless anyone else has a closing remark, let's to know one thing, which is, you know, we've commented on, you know, are the Democrats doing as much as they could possibly be doing?
And the answer is probably no, because it comes up over and over again. And which is that we we know that we have a Democratic leadership that does not feel nearly as passionate and angry as as we ultimately need.
And however we resolve the question of the court, there is no escaping the fact that we need are angry left political movement to make serious demands and have values and care about cramming our ideology through.
Just as much as the Republican Party cares about cramming theirs through.
And so long as you have a political leadership that feels a little indifferent or doesn't really share or it doesn't share as passionately as you do with the ultimate progressive political goals, you can't make movement on this. So there is no divorcing this from building our left political movement.
I just want to add add one thing to that. I, I totally agree. And I think that the you know, the problem is that too many Democratic politicians and some segment of the Democratic voting base, you get the feeling they just want to go back to brunch and they don't want to actually necessarily have the fights for actual power. And that if you don't have the fights for actual power, you know, you're going to be eating brunch in a pretty dystopian place.
And 30 seconds, this was supposed to be about Amy Barrett's confirmation hearing last two days, and we haven't mentioned her like I think 30 minutes, but the reason for that is because nothing happened.
This is nothing happened. So there's no it's a total kabuki theater and that's why we did.
I that's an interesting point, Nathan. And I would love to talk to you some time about the idea of a socialist jurisprudence. I'd like to I'd love to talk to all of our panelists about that. But we are out of time. So very quickly, if you could give if you have anything to plug. David, I know you have something. Yes.
Please subscribe to our newsletter, Daily Post.com. We're putting stuff out daily. And we are we've been covering this. We did we were the ones who who essentially broke the story about how the Supreme Court will have three people if it is confirmed, three people who directly worked on the Bush v. Gore case. So we've been covering that. We've been going to be covering the election. So subscribe at Daily Post.com.
I have a podcast called Supreme MFS. You can guess what it's about and it's available wherever. I'm very new to this, but it's available to every podcast. Ah, and it's at the law.
And I try to get guests on there who disagree with me so we can have healthy debate.
I, I have the editor of Current Affairs. We have a beautiful print edition to which everyone should subscribe and where Brianna is a contributing editor. We also have a podcast at Patrón on dot com site Current Affairs. And I also the author of Why You Should Be a Socialist and the New American Monstrosity, Donald Trump How We Got Him and How We Stop Him.
You can find links to all of these wonderful commodities in the description of this episode. That does it for us. Thank you so much to our brilliant panelists, Nathan Robinson, Professor Eric Segall and David Sirota. We'll see you three next year after Elena Kagan is shot out of a circus of.
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I don't I don't have anything to plug.
Well, then till next week, keep up the fake wasting out of work now. Breaking the law and breaking the law. Breaking the law, breaking the law, breaking the law, breaking the law.