Late Justice Ruth Bader Ginsburg once said, “it’s hard not to have a big year at the Supreme Court.” With that in mind, we thought it would be good to do a gut check as 2022 promises to be one of the most important years in the Supreme Court’s history. We like doing new things here at WITHpod, so we’re excited to share our first crossover episode with the hosts of the “Strict Scrutiny” podcast, Chris’ wife Kate Shaw, and her co-hosts Melissa Murray and Leah Litman. Between the possibility of Roe v. Wade being overturned, historic potential rulings on voting and gun rights and more contentious political battles, the year ahead will certainly be one for the books.
Note: This is a rough transcript — please excuse any typos.
Kate Shaw: (MUSIC) Centering the court in our political lives is something critical and actually, you know, actionable.
Leah Litman: I don’t think tomorrow Neil Gorsuch is gonna write an opinion that says, “I declare Donald Trump king and emperor forever.” But I do think they will and have issued decisions that enable democratic decline, enable autocracy, and further undermine democracy to a point where we will no longer recognize our government as a legitimate, healthy democracy.
Melissa Murray: What explains what has happened more recently has a lot to do with what happened over the Obama administration and the failure of the Obama administration to get judges nominated and confirmed because of the recalcitrance of the right.
Chris Hayes: Hello and welcome to a very, very special crossover edition of Why Is This Happening?-slash-Strict Scrutiny podcast with me, your host, or co-host, Chris Hayes. (MUSIC) And just one more note before we dive in here. We recorded this episode before the Court had even heard the challenge to the OSHA workplace vaccine mandate and then they issued that decision after that. So we don’t touch on any of that because this all took place before that argument and decision was handed down.
Hey, everybody. Today is very special. Melissa Murray, who you’re gonna hear from in a second, described it as our first-ever conjugal podcast (LAUGH) which cracked me up because I was like, “Whoa, wait. No.” But then it’s true that, like, “conjugal” really is just an adjective that means, like, marital.
And the reason that it’s our first ever conjugal podcast is as, if you listen to Why Is This Happening? or if you listen to Strict Scrutiny, I think we have listeners from both right now in this intro, you know that the Shaw-Hayes household is a two-podcast household. (LAUGHTER) Well, it’s actually three because our oldest daughter is now doing a podcast.
Leah Litman: Well, technically four. Kate also has Irrational Basis Review.
Chris Hayes: That’s true. That’s true. Well, who knows how many podcasts are in the house. (LAUGH) For those that don’t know, I’m Chris Hayes. I host All In on MSBNC weeknights at 8:00 p.m. I host this podcast Why Is This Happening? which tends to be a sort of a long-form interview podcast.
And today we’re doing a special merger with Strict Scrutiny which is hosted by the aforementioned Kate Shaw, who is the love of my life and my wife. And she’s a law professor at Cardozo School of Law, Supreme Court contributor at ABC.
She co-hosts Strict Scrutiny and Rational Review (SIC) as well. She’s a former Obama White House lawyer and a former Supreme Court clerk for Justice John Paul Stephens. Melissa Murray, who’s a professor at NYU Law, faculty director of Birnbaum Women’s Leadership Network, which has a mission supporting gender equity in law school and the profession. She’s also a co-host of Strict Scrutiny and occasional, well, frequent guest on my program at MSNBC.
And Leah Litman who’s assistant professor at University of Michigan. She focuses on constitutional law and federal courts. Blogger for Shall Take Care, co-founder of Women Know Law (which is true, there are women that know law) aimed at increasing diversity and equity in law. Also a Strict Scrutiny podcast and one of the best legal TikTok-ers that you will ever encounter.
Melissa Murray: Can I also say the two of us are not the loves of your life? So we just wanna make that very, very (LAUGH) clear. There’s only one love of your life here. (LAUGHTER)
Chris Hayes: I’m glad. Well, that gets to an interesting sort of constitutional interpretational question which is, like: If I don’t say you’re the love of my life, does that necessarily mean you’re not? You know, it’s like an enumerated rights issue. I thought it was very clear that that was implied by me only saying that about Kate.
Melissa Murray: Well, so that’s statutory interpretation canon. What is it, juris generum?
Kate Shaw: Yes.
Leah Litman: Or expressio unius.
Kate Shaw: Or just negative inference, right? Any of the above can work here.
Melissa Murray: Right.
Leah Litman: It’s in Justice Scalia’s book. (LAUGH)
Melissa Murray: For my own marital situation, I just want to clarify that there is only one love of Chris Hayes’ life and it’s not me.
Chris Hayes: Yeah, see.
Melissa Murray: To be clear.
Chris Hayes: Yes. It’s a conjugal podcast just with Kate. So it’s really good to have you. I’m a big fan of Strict Scrutiny. I get a lot of my legal knowledge from it. I get a lot of my legal knowledge from Kate, most of it, actually, and from your podcast.
And I thought we haven’t done a legal podcast on Why Is This Happening in a while, but I think it’s probably shaping up to be probably one of the most important years in Supreme Court history, 2022. I don’t think that’s an overstatement or hyperbole. And I thought maybe we’d start with a little bit of just, like, I mean, your listeners tend to be, you know, law nerds (LAUGH) who are, like, very–
Kate Shaw: But cool law nerds.
Chris Hayes: Cool law nerds, sure, (LAUGH) but law nerds who, like, are very focused on the law, know a lot about it, and are probably, like, keeping up week to week with the cases. For folks that are generally kind of new consumers but may not have been as up to it, like, let’s just start with if you were– I’m gonna maybe go around and say, like, if you had to give me your one-paragraph description of this last term of the, you know, Roberts court, like, how you would characterize it to someone who is sort of kind of like, “How’s the Court doin’? What’s the Court up to?” How do we feel about the Roberts Court? I’ll start with you, Leah.
Leah Litman: So this term, the Court is poised to eviscerate access to safe and legal abortion. Indeed, it has already done so in the second most populous state of Texas. It is also poised to basically make it impossible for states to regulate guns. And the Court is getting really ready to make it impossible for federal agencies to enact rules and regulations of the kind that have just been so commonplace and dominated the workplace, health and safety regulations. And it is doing so in cases that will make it really hard to address global problems like climate change or, say, the coronavirus pandemic.
Chris Hayes: That’s bleak. (LAUGH)
Leah Litman: Yeah, no. That was kinda, like, the PG13, dark version. I actually think it’s probably worse than that summary. But it’s big and it’s bad.
Chris Hayes: Yeah, you know, it strikes me, Melissa, that what Leah just said is, like, those are all three of those, you know, essentially kind of gutting the regulatory state and its sort of legal mechanics, gutting, essentially outlawing abortion and limiting reproductive autonomy of women and pregnant persons, and making it so that everyone has to carry a gun (LAUGH) at all times, basically.
These are longstanding conservative projects. And there’s this feeling I think with this Court where there’s been so long in my life of covering the Court of, like, the warning of the wolf coming closer and closer to the door, particularly on Roe. And it just feels like 2022 is a year that, like, the wolf shows up at the door basically, particularly on these really longstanding, multi-decade conservative projects that they’ve been chipping away at.
Melissa Murray: I think that’s right. And to coin a phrase from Justice Scalia, this wolf comes as a wolf. They’re not hiding the ball on this at all. And, you know, I think we can think about the last couple of terms as, you know, table setting, preparing for a party of five and then eventually, a party of six.
And now, they have this conservative supermajority. And the real quick is how fast and how furious will they be in getting to the end of, you know, what is this conservative legal movement’s to-do list? And how fast will they want to prosecute that?
And that’s really the only thing that’s standing between us and the abyss, is really their own appetite for how fast they will go about this. You know, it just seems like they are poised to do the most right now. And, you know, I’m just surprised that there isn’t more public outcry about this because definitely bound up in all of this is surely a broader question about the Court’s own legitimacy which, you know, for the Court is an existential crisis.
And I just don’t see the public sort of cottoning onto the idea that what has changed about this Court over the course of the last couple of years has nothing to do with doctrine, has nothing to do with jurisprudence. It has everything to do with what the composition of this Court is and who has managed to install conservative stalwarts on this Court.
Chris Hayes: And I think, Kate, the big indicator, and I’m getting this from the three of you as much as anyone and other commentators, about, like, there’s this question of, like, “Well, how aggressive are they going to be,” to Melissa’s point?
Like, they know they have this extreme majority. Roberts particularly, we know, is, like, pretty concerned about the reputation and optics of the Court just as a sort of political sense. And I think when Texas designs this law with this crazy bounty hunter system, this Ruben Goldberg-y machine, that’s obviously totally awful and sort of offensive to basic common sense and judicial principles, that’s designed precisely for the purpose of evading the Court enjoining it, essentially, or stopping it, right?
And it comes before the Supreme Court. And I felt like that decision was a big indicator to a lotta people. Like, oh, they’re really, really gonna do this” because they could’ve been, like, “Obviously, we have to stop this,” and they did not.
Kate Shaw: Right. And so you’re talking, of course, about Texas SB8. And absolutely. So if the Court had wanted to appear, you know, somewhat moderate and institutionalist, they could well have at least allowed the challenges, one or more of the challenges, to SB8 to proceed, especially because they are on the precipice of overturning Roe anyway in the Dobbs case, the Mississippi case.
And so I agree that the strong signal that the decision basically to allow SB8 to stand sent was that they are not interested in caution or incrementalism. And I say “they,” I mean, you asked about John Roberts. I think John Roberts is probably still interested in all of those things.
Chris Hayes: Well, he doesn’t side with the other five in that, right? (LAUGH)
Kate Shaw: The math of this Court right now is that it actually doesn’t much matter what John Roberts wants in terms of how the Court proceeds, in terms of, you know, substance or pacing because he can be out-voted by his five more conservative colleagues.
And we should say, look, like, we are in the middle of the first full term of this new Court, right. You know, my old boss, Justice Stevens, he wrote in his last book, he called the Court by the name not of the chief justice, but of the most recent addition to the Court. You know, ’cause every justice kinda transforms the Court. So this is the Barrett Court, right?
Chris Hayes: Right.
Kate Shaw: I think again, he would say that about every new justice, but it is just so true here. Like, it’s hard to remember a more consequential substitution than Amy Coney Barrett for Ruth Bader Ginsburg. Maybe Clarence Thomas for Thurgood Marshall in 1991, right? I think you have to go back that far before you see, you know, a swing like this. And I think that we are beginning to see just how transformational that appointment has been and will be.
Chris Hayes: So that’s all (LAUGH) pretty bleak. I mean, first of all, let’s take a step back and talk about why we’re here before we go forward, which is, babe, you said this to me the other day about this point, which I thought was a really important one, which is, like, in some ways, they’ve been after this forever, and they keep failing, right?
So, like, the story of the conservative legal movement, and particularly Republican nominees to the Court is this story, if you look at it from the perspective of someone who thinks abortion is murder and also should be not protected by the Constitution and illegal, right, the sort of Lucy and the football. They keep getting tricked into these nominees, Sandra Day O’Connor, Anthony Kennedy, David Souter, John Paul Stevens.
Like, all of these Republican (LAUGH) nominees who, when the time comes to do the deed, don’t do it. But something changed, right, because we had lots of Republican nominees before, and you still get the Court upholding Roe and Casey with Republican nominees, you know, writing in the majority there.
Something is different about this crew (LAUGH) than before. And by design, right? Like, it’s not an accident (LAUGH) that they got here this time after learning from the failures of the past. I would love to hear all of you guys talk about what happened. What changed? Why didn’t it not work before? And what have they done now to get themselves to the point where, like, they’re gonna do it in 2022?
Leah Litman: Two words, maybe four words: Leonard Leo and Mitch McConnell. You know, Leonard Leo is the person who was very much affiliated with the Trump administration in helping them select judicial nominees. He was also one of the founders of the organization known as the Federalist Society.
And part of the Federalist Society’s mission was to help develop and construct a pipeline of perspective judicial nominees and help them to identify people who would be the kinds of judges or justices that they wanted them to be. You know, there were often slogans, as you were saying, you know, “No more David Souters. No more Anthony Kennedys.”
And they learned from that that you aren’t going to appoint people with whom you’re not super familiar about what their positions are going to be. And so we arrived at a point where the Republican party and the conservative legal movement understood that they were only going to be appointing people who they were very confident would reach particular results on the issues most important to them.
And the nominees that we got were very much a product of that apparatus and them understanding, you know, what they did wrong previously. And the other big player is, of course, Mitch McConnell, you know, who held open the seat for Donald Trump to fill.
We would be living in a very different world if Merrick Garland were on the Supreme Court instead of Neil Gorsuch. And by holding open the seat, you know, he also arguably changed the calculus of the 2016 presidential election, when a bunch of voters went to the polls and elected, you know, a Republican president because Republicans promised that they were going to appoints justices who would overrule Roe versus Wade, as well as other decisions. So I think that those are the people that gave us the Court that we have today. And gosh, is the paying them dividends, you know, many times over. And it will be for decades.
Chris Hayes: I mean, the amazing thing about that is that it’s the only promise Donald Trump’s ever kept in his life. Like, literally, (LAUGH) the only one. It was, like, so clearly transactional. Obviously, transactional. But he understood that this was, like, oh, this is important to you guys.
Knew nothing about it. Cared nothing about it in either direction I don’t think. I mean, he, you know, formerly had called himself pro-choice. But basically said, like, straight up, “This is a litmus test.” And Leonard Leo helped him with that, like, here are ten people we might appoint.
And there’s also this way in which, Melissa, it’s funny. I think about, like, Alias which is a show we used to watch or, like, The Americans or, like, a spy show where there’s something even over and above of the grooming in the pipeline of the Federalist Society.
It’s, like, we’re gonna send you into a foreign country and have to make sure that you won’t be a double agent. Like, you have to prove to us. There’s this, like, thing that we need to get out of you, this thing that we have to instill in you that, when you go in there, you’re not gonna let that place transform you.
You’re not gonna go over to the other side. They figured out some way to do that, (LAUGH) some sort of spy training to, like, make sure that, like, these were the hardest of the hardcore and nothing was gonna stand in their way.
Melissa Murray: Well, so let me add a couple of different flash points to add to the ones that Leah mentioned. So, you know, I think it is about the rise of the conservative legal movement. I think it is a backlash to the, quote/unquote, “moderation” of Souter and Kennedy and O’Connor. And to be clear, Kennedy and O’Connor were not always moderates.
Chris Hayes: No.
Melissa Murray: So, I mean, this idea that they were just, like, you know, wishy-washy liberals all the time I think is deeply, deeply overstated. But I also think you have to think about what the collegiality of the left has meant (LAUGH) for the Court because John Roberts and Samuel Alito, you know, they’re nominated by George W. Bush and they are very much steeped in the conservative legal movement when they come before the Court as nominees.
But they also have these sterling credentials. In the case of John Roberts, they’ve clerked on the Court, Harvard Law School. You know, like, all of the boxes are checked. And I think, you know, for the left, you really couldn’t take down a nominee in the way that they tried to take down Clarence Thomas and failed and the way that they successfully took down Robert Bork without more.
And so they went along with it. Like, you know, there were some negative votes. But, you know, “These guys have good credentials. I just don’t believe in what they’re serving, but they would make great justices.” So we heard a lot of that. And I think that explains what happens during the Bush II era.
But I think what explains what has happened (LAUGH) more recently has a lot to do with what happened over the Obama administration and the failure of the Obama administration to get judges nominated and confirmed because of the recalcitrance of the right.
And so they eliminate the supermajority requirements for lower Federal Court judges. And then it’s removed for the Supreme Court judges. And now, what you have is the requirement of a simple majority to install a justice on the Supreme Court, which means that you don’t have to put up a moderate nominee, or even a nominee where sort of looks moderate and has the sort of trappings of collegiality. You can put a hardliner on there as long as you know you can get your 51 votes to get them over the bar. And that’s what’s happened.
Kate Shaw: Maybe a couple of additional thoughts. I mean, one, your question about what serum has inoculated this (LAUGH) new crop against, you know, maybe moderating with the institution and, you know, we should say, obviously, these justices are new to the Court.
Chris Hayes: Well, that’s probably part of it too, right?
Kate Shaw: Yeah. So I don’t know long term. I am sort of dispositionally more optimistic (LAUGH) about these kinda long term prospects of the new justices than I think Leah and Melissa area. But I wouldn’t rule out the possibility that a Kavanaugh, say, moves during his, you know, decades we are probably looking at on the Court to a place of moderation in the way many, many conservatives who have come before him have done so.
And I think it’s right that none of them were kind of groomed and cultivated in as kind of complete a way as these new nominees are. And yet, you know, it has been a phenomenon that is sort of hard to ignore, that even conservatives who are, you know, avowed conservatives who, when they are nominated to the Court, have moderated, have shifted leftward over their time on the Court.
And there’s been a little bit, you know, the occasional, you know, Justice White, like, movement left to right, but far fewer instances than the kind of leftward migration. And I would not rule out the sort of long term possibility that that could happen, moderation could happen, at least with a Kavanaugh.
I don’t see any real chance of it with Gorsuch, and I’m not so sure about Barrett. Again, I wouldn’t rule it out. But this is, like, my unshakable optimism in, like, (LAUGH) the kind of, like, (LAUGH) intellectual emptiness of some of the theories and methods that these justices profess to adhere to.
That, like, at a certain point, that that will become evident to them and they will have to change. But, you know, there’s a lot of carnage that we are looking at in the interim. Just maybe one more point about, you know, how we have gotten to where we have gotten, you know, it is a combination of luck and chance on the part of Donald Trump.
Right, three appointments in on presidential term is astonishing, right? So Barack Obama nominated three justices, (LAUGH) appointed two justices in eight years. So, but that’s the other point, right? So it’s a combination of combination of luck and chance and ruthlessness. And ruthlessness on the part of Mitch McConnell in terms of filling those vacancies. But, of course, the ruthlessness only makes any difference if you have the vacancies to fill.
Chris Hayes: We should also say one more thing that I feel like always gets lost over this in terms of ruthlessness is, like, Anthony Kennedy looked at Trump and was, like, “Yeah, that guy. I want that guy to replace my,” and, like, he was just a loyal soldier.
In the end, like, whatever he wrote about, you know, gay rights or, you know, his very highfalutin language in his line of cases that, you know, leads to marriage equality, like, in the end, it’s, like, he was in the tent. He was on the team. He understood what was asked of him and he did it. And, like, that’s another reason, you know? Whatever, like, independence we think Anthony Kennedy had, he made the choice that he made, you know, and got what he wanted.
Kate Shaw: To hand a seat very deliberately to Brett Kavanaugh, right, it–
Chris Hayes: Yes.
Kate Shaw: –seems.
Leah Litman: But I think that gets to another factor, which is there are different kinds of nominees that Republican and Democratic presidents nominated. You know, you couldn’t get Justice Ginsburg to step down during Obama’s presidency because she thought she was irreplaceable, no matter the overtures and the signals that, you know, the administration and people were trying to make to her.
Whereas catering to Justice Kennedy’s ego and saying, “We’re going to replace you with one of your favorite former clerks,” was enough to get him to step down. And we are seeing something similar, you know, play over and again with Justice Stephen Breyer, with people telling him, “You need to step down. You need to go. There is a chance that Democrats will lose the Senate, you know, in the midterms, if not before.”
Chris Hayes: Dude–
Leah Litman: “And we know Republicans are not going to confirm your replacement.” And he’s, like, “You know what? Let me instead go on a PR tour telling you about how great the Supreme Court is.”
Chris Hayes: We’ll be back after this quick break.
Chris Hayes: I was gonna go to this later, but let’s just do this now. (LAUGH) First of all, there’s an odd they’re gonna lose the Senate. They’re one heart attack from losing the Senate right now as I speak to you, at every second, with numerous sept- and octogenarian (LAUGH) senators that make up their zero-vote majority, (LAUGH) their one-vote majority with Kamala Harris.
To me, the Breyer thing, it pulls together a lotta the strings here of, like, when we’re having this conversation, how do we get to this point? And one of them was, like, their side was more committed and more ruthless and prioritized this more as the ultimate project of all of it in a way that the left never did.
And I think in some ways, that’s because the Democratic party and the center left coalition has a lot more things they substantively wanna do. And so their attention gets divided. And I think that was true of the Obama years for sure when, you know, I mean, I think Kate can speak to this a little bit, but it’s also, like, Mitch McConnell, all he wanted to do is cut taxes and confirm judges. Like, the Court was the thing. There wasn’t some other project. They’re not, like, “We gotta pass a big climate law or the country’s gonna burn.” Like, there’s (LAUGH) a million things that have to be done.
Kate Shaw: Well, they wanna pass restrictive immigration laws, right? Like, they did wanna do some other things.
Chris Hayes: Yeah, that’s true. But the Breyer thing, it’s, like, the combination of ruthlessness focus and then, like, team-playerness. Like, all three of those things seem to me to be part of why we’re here. And the team-playerness is the thing with Breyer right now that I think has left everyone scratching their head.
Melissa Murray: Well, they’re able to prioritize a kind of set of collective goals, whereas I think the left is very much individualized. I mean, like, Justice Ginsburg, sort of thinking about what is her legacy, who will be able to replace her and do what she has been doing, as opposed to who can just sort of keep this progressive coalition intact for the next 15 years? And I think that’s a big part of it. I mean, there is a kind of weird selflessness that I think is part of their project that just is not part of the left’s project.
Chris Hayes: You mentioned this before, Melissa, about this Court, and sorta so we’ve gotten to this point. They have the six-three majority. And I think this is such an important point (all three of you have made it in various podcasts), of just, like, there’s nothing changing legally, right? (LAUGH)
It’s like when the CDC guidance came out and it was, like, “Well, we’re now five days.” And it’s, like, “Well, is there data?” It’s, like, “Well, just we’re changin’ it ’cause, you know, things change.” And when you look at all this stuff, particularly on reproductive rights, but a whole bunch of stuff, it’s, like, when it looks like is a legislature of nine.
And what happens if you have a legislature of nine, you know, let’s say you’re in a town that has a city council of nine, (LAUGH) and the right-wingers get a six-three majority, and they’re gonna come in and they’re gonna say, like, “This is what our order of business is.
“You know, we’re gettin’ rid of the mask mandate that the liberals had (LAUGH) before. And we’re gonna increase the sale tax and get rid of the city income tax. And we’re gonna do all these regressive things because that’s our agenda.” And the point is, like, the Court isn’t supposed to be that, right?
I mean, at least in its self-conception or at least the way we think about it in the three branches, that’s, like, not simply this super legislature of nine that, when it flips over, they come in and it’s, like, okay, well, now the right-wingers are in charge and they’re gonna do this.
And yet, it looks more and more like that. Why, Kate? Like, what has changed? You guys sell merch that says, “Stare decisis is for suckers,” so that’s part (LAUGH) of it. Or has it always been that way and I’m being overly romantic about the previous iterations?
Kate Shaw: I mean, I think maybe both. You know, there’s been a degree of mythology around the Court standing entirely outside of politics. And I also think that justices have kind of endeavored in good faith, historically, to seek to interpret the law and the Constitution in ways that do not follow directly from their policy preference and sort of ideological commitments.
And I am not sure. I don’t think we’re seeing that with this crop of justices. I do think that they have, many of them, been sort of steeped in a world view that sort of has been I think kind of originalism and textualism, the kinda leading methodologies of the legal right, are in many ways these kind of methodologies that to me are kind of retrofit around a set of results, right? So they have been constructed to produce a particular set of extremely–
Chris Hayes: Totally.
Kate Shaw: –conservative outcomes. And so maybe they are acting in good faith when they say that they are simply deploying these methods to reach neutral results. But the methods themselves have I think been constructed precisely in order to reach those results. And so–
Chris Hayes: Yes. (LAUGH)
Kate Shaw: –whether they’re acting in good faith or not doesn’t much matter because each and every time they take this, you know, ostensible tool kit, you know, and bring it to bear on a particular legal question, it’s going to produce the conservative result.
And there are now, you know, five or six of them, depending on the legal question, committed to this, you know, ostensible set of methods that will inevitably produce a set of results. And I do think that, you know, Melissa mentioned sort of a legitimacy crisis early in the hour.
And, you know, I do think that, to the extent the Court has always been understood to stand to a degree outside of politics, it has been able to act in ways that are intention sometimes with majority preferences, and sometimes to the good, and been heeded by the political power structure and the population when the Court has done that.
Right again, sometimes acted in tension with majoritarian preferences. But when all it looks like is, you know, a super legislature of nine, simply channeling the preferences of appointing presidents where there’s, you know, a deeper and deeper kind of disconnect between the majority preferences and the preferences of those nine justices for, you know, the Court.
Right, so there are six of nine justices are appointed by Republican presidents. You know, all but George H. W. Bush, presidents who lost the popular vote. Now, that doesn’t make them illegitimate as appointees, right? Our Electoral College system is the problem.
But there is that, right, in terms of a disconnect between the public and what these justices represent or channel. And then things like Brett Kavanaugh’s confirmation votes, you know, were cast by senators who represented 45% of the public. And, you know, 55% of the public’s senators voted against Kavanaugh, and yet Kavanaugh’s on the Court.
And again, that doesn’t make him illegitimate, though you could think he’s illegitimate as an appointee for other reasons. It’s a defect in the system. But it helps I think explain why there is a chasm I think that is growing on a lot of issues between the preferences that these justices are channeling the preferences of the public. And I think it’s a real problem.
Chris Hayes: Well, and also, like, it seems to me that that disconnect is partly a culmination of this project. It’s a culmination of these institutions in American life that heavily weight certain particularly rural minorities. That they’re running this sort of minority coalition. (LAUGH)
You know, it’s not, like, they’re running from 40%. They’ve got 45% of the country, 44% of the country reliably, but they have institutions that now give them a six-three Court and, you know, are always within spitting distance of the Senate. Melissa?
Melissa Murray: I think it’s more than that though ’cause, like, as you say, our whole system is sort of designed so that the majority does not get its way all of the time. There are all of these different fail-safes baked into the system to allow for these principled minorities, and I don’t mean minorities but in a racial sense but, like, actually numerical minorities, to have a say so that the mob doesn’t overrule things.
I think the problem here though is we’ve never necessarily thought of the Court as weaponized in that project of minoritarian rule. And I think what we have seen over the last couple of years is exactly that. So, I mean, if you think about the Affordable Care Act, for example, you know, Donald Trump came in guns blazing.
“I’m gonna overrule. I’m gonna repeal the Affordable Care Act.” And then you have John McCain famously voting thumbs down on it. So they fail to repeal the Affordable Care Act through ordinary majoritarian politics. And what happens next?
Someone files a lawsuit in a Texas District Court to challenge the Affordable Care Act. And so you see this shift from legislative politics to a kind of judicial politicking, where they use the Courts as a means of achieving what they cannot achieve through ordinary majoritarian politics.
Chris Hayes: I mean, the place where this seems like it cashes out the most is on reproductive choice in Roe, and particularly with the Texas law because there’s a few things happening. One is how far they’re willing to go on this. Second of all, the sort of precedential question, which is like, the precedent is clear.
I mean, I’m not a lawyer, but I can apply it. Like, (LAUGH) obviously, these laws are unconstitutional. Literally, a robot or a program could tell you that because it’s not a close call. And this gets to something Melissa said, like, the combination of mass politics and legitimacy and outcry and, like, I gotta say that we cover Texas a lot.
Melissa, I think I had you on the program about it. But, like, there was kinda less public outcry than I thought there would be. And I find that unnerving. And I wonder what signal it sends them. And I don’t know how much that matters one way or the other.
But the big question, if they overturn Roe, like, what that means from a legitimacy standpoint, from a small-D democratic politics standpoint, over and above the substantive fate of women’s and pregnant person’s bodily autonomy and health and all of that stuff, like, those are just really open questions to me right now. And I thought maybe I had a handle on them before, Leah. But I feel like the experience of the last few months, profoundly uncertain about what all this looks like, come next year.
Leah Litman: I think it’s important to understand the reproductive rights and justice decisions, together with the Court’s voting rights decisions, on top of the kind of structural disconnect, you know, that our political system has created between people that win political power and majoritarian preferences.
So we’ve already talked about how, you know, the Senate skews the system a little bit, but the Court has played such a large role in allowing politicians to basically insulate themselves from public opinion and from voters, whether it’s the partisan gerrymandering decisions where the Court basically allowed politicians to select their voters, rather than the reverse, or whether it’s Shelby County, which eviscerated section five of the Voting Rights Act.
Or it’s last term’s decision in Brnovich versus DNC, which significantly watered down the remaining protections of the Voting Rights Act. All of that has made it harder for people to actually push back against the Court via elections.
So what that has done is it has emboldened politicians to enact regressive policies that don’t actually enjoy majority support, and then face no political pushback from that whatsoever. And that also helps the Court too because the Court knows while, “Okay, we’re not facing any popular pushback.
“There weren’t protests in the street when we allowed Texas to basically nullify Roe versus Wade and outlaw safe and legal abortion. And guess what? Now we’ve also made it harder for people to elect politicians who would be in a position to actually do something about us and limit our power.”
And I think the combination of all of those things is extremely toxic and destructive to a representative democracy in which people actually are able to elect politicians and see their preferences enacted into law. You know, no one thinks we’re a simple democracy. But I think most reasonable people would think, and should think, that people should be able to select politicians and actually have their preferences register in elections.
Chris Hayes: Although, just to follow up on that and to sort of play the devil’s advocate on what the anti-Roe forces would say, right, I mean, they make an argument that’s sort of the converse of that, which is they basically say, “Like, you liberals screwed up abortion politics by taking it out of the democratic sphere, by judicializing the entire thing.
“And it should be the case that, like, the voters of New York should be able to have legal abortion because that’s what the voters of New York want. But the voters of Alabama are gonna wanna outlaw it.” And to their point, I think there are many states of the union where, even if you did just a sheer plebiscite ballot initiative, you could probably outlaw Roe, outlaw abortion after six weeks in, I don’t know, ten, 15 states, you know, like, an actual democratic choice. And so, like, their argument on the politics of Roe is (LAUGH) that they’re the ones who are on the side of democracy.
Leah Litman: Yeah, no. I get that. But I also think everyone acknowledges that there are certain rights that are fundamental to people’s equal participation in society and government that basically enable and make possible a functional democracy. As, you know, I think the solicitor general of the United States said at the oral argument involving Mississippi’s efforts to overrule Roe versus Wade, you know, there are so few rights that are so central to women’s ability to participate equally in society and so essential to their health care and bodily autonomy.
So there are certain minimal rights, you know, that are necessary to make a democracy function. But on top of that, the Court has done so much to make it impossible for voters actually to select the politicians to enact their preferences, that we’re not living in a world in which a post-Roe would actually reflect democratic preferences.
Chris Hayes: Right. And that point about, like, the state legislature as the ideal object of right wing judicial practice (LAUGH) and governance, because it’s, like, it’s not the people, and it’s not the government, it’s the state legislature which, like, in a state like Wisconsin, could sort of gerrymander (LAUGH) themselves into this barricaded position where they don’t win the election statewide, but they control.
You know, Georgia’s a great example. Very famously, Georgia just went for Biden and voted in two Democrats, and it’s got super majorities (LAUGH) in both Houses of the state legislature, partly because of the way that it’s carved up, Kate.
So it’s, like, that democratic disconnect, to Leah’s point, just, like, playing all the way up and down the system. And then the Court coming and being, like, “The real unit of governance, the real people to trust (LAUGH) are the state legislators.”
Kate Shaw: Yeah, no. It’s preposterous. And also, I think we should say, like, we have been talking as though what the Court is considering is whether to overturn Roe and just return to the states, right? The question of whether to permit or to prohibit or, you know, restrict and regulate in some other way abortion.
And that is what Mississippi is asking the Court for. But there’s a very strong desire on the part of many anti-abortion activists to go much further than that, right? And to lay the groundwork. A lot of the amicus briefs in the Dobbs case, that’s the Mississippi case that the Court is considering right now, are pretty explicit about that, right?
It is not enough, from their view, for the Court just to say that Roe invented a right to abortion that exists nowhere in the Constitution. And that that error should be corrected and Roe should be overturned and the states should be permitted to decide.
You know, and absolutely sort of crediting everything you and Leah are talking about, about how sort of empty that promise is anyway in the face of gerrymandering and vote denial and suppression and things like that. But sort of setting that aside, that isn’t the endgame at all.
I think the endgame is the Court actually concluding that a fetus is a Constitutional person. And I’m not exactly sure what the reasoning of an opinion that says (LAUGH) that looks like, but surely, I think the upshot of it is that states cannot permit legal abortion to occur.
You know, the maximum version of Dobbs is actually a very anti-democratic, (LAUGH) anti states’ rights position it is literally enshrining in the Constitution a different kind of right, but a right held by a fetus and not by a woman. And so I think that this, you know, this democratic, like, decision sort of destination is, like, a stopping point. That’s not really where they wanna go.
Melissa Murray: Well, and to follow up on what Kate said, I mean, I don’t think this is just sort of an inkling of things to come. I think we saw shades of this in the Dobbs oral argument when Justice Clarence Thomas began talking about a case from the 1990s, Ferguson versus the City of Charleston, which was about criminalization of drug use by pregnant then women, now I guess it would extend to pregnant persons.
But the whole idea there was that the use of drugs while you were carrying a fetus was an assault on the fetus itself. So, I mean, there are the seeds of a fetal personhood argument there. And he explicitly brought it into oral argument, when it really wasn’t on the table at all. I mean, it was sort of an off-the-wall kind of question that he made very much of the moment. And I think that’s the tell.
Chris Hayes: Yeah, and I would also just say I don’t have any judicial or legal expertise, but I do cover politics. And, like, at least from the political side of, like, the anti-abortion movement, it’s always been a preposterous idea that, like, you know, this is the sort of, like, the kind of suit and tie, euphemistic version of the conservative politics.
It’s, like, “Well, we just wanna leave it to the states.” And it’s, like, well, you think it’s murder. And it’s, like, you’re not gonna just be, like, “Well then, we’re done. Like, it’s fine, there’ll be legal abortions.” (LAUGH) Like, they’re gonna keep pushing.
Obviously, there’s gonna be, you know, the first Republican trifecta at a statutory level, legislatively. Republican House, Republican Senate, Republican president is going to have enormous pressure to pass a national six week ban. And then that’s not even dealing with what the judicial push will be to confer a Constitutional right. So the idea that, like, “Okay, we’ll just leave this federalized system of abortion” is pretty plainly preposterous.
Melissa Murray: Well, even a federalized system of abortion is deeply, deeply problematic. I mean–
Chris Hayes: Totally.
Melissa Murray: –the whole idea that women have to leave the state in which they leave in order to to seek abortion care really raises broad questions of socioeconomic inequity. It also, I think, doesn’t even take into account what states like Texas could do to prevent women from leaving the state in order to do that.
You know, it’s less than a generation ago that the state of Virginia not only had a ban on interracial marriage, but actually made it a crime for you to leave the state in order to marry interracially in some other jurisdiction that permitted it.
So, you know, this is just in my parents’ generation. I mean, of course, they could do more. So the idea of federalizing this as some sort of compromise measure, that’s not a compromise at all. That’s just opening the door to do more, just in an incremental way.
Chris Hayes: If and when they overturn Roe, and it sounds like the three of you think they will, although the future’s unwritten and we don’t know what will happen, it’s possible that they forge something to uphold the law, but they don’t explicitly overturn Casey and Roe. I mean, I don’t know. I’m just saying we don’t know what the future is.
But let’s say they do. We get to this question of legitimacy and we get to this question of, like, how people view the Court. And there’s one way that I think of looking at the Court, and liberals’ view of the Court goes the following. And I would love to get all of your responses to this.
Basically, the Supreme Court is fundamentally a reactionary institution in American life. Has been through most of it. If you go back and you look at all the decisions, particularly along questions of slavery and racial justice and racial equality and multi-racial equality and all sorts of the things that we value in, like, a pluralistic, multi-racial democracy, and also economic equity, they were on the side of white minority (LAUGH) rule and capital time, and time, and time again, against essentially multi-racial social democracy, Democratic incursions on those two forces.
And then there was, like, this period that just happened to coincide with the kind of, like, lifespan of the most powerful generation in America, which is the baby boomers, (LAUGH) in which the Court wasn’t that. Famously, the Warren Court.
You know, basically starting in ’54 in Brown and going through, say, I don’t know, the late 1960s in which the Court is, for the only real time in its history in American life, like, kind of on the side of, like, expanding rights and a lotta the things that, like, liberals care about.
But that was an anomaly. And basically, what’s happened is that period suckered the left and liberals into viewing the Court as this kind of savior, important bulwark against discrimination and for rights, when fundamentally it’s just a bad, corrupt, reaction (LAUGH) institution that needs to be, like, manhandled by the democratic branches the way that FDR bullied them and maybe expanded, maybe run over, maybe ignored. I don’t know what the solution is. And liberals need to stop, like, basically, like, thinking this thing is good and has, like, gone awry, and get real about what this thing is.
Leah Litman: So I think that’s all very plausible. I guess my fear is it’s not just nostalgia for the Warren Court that is causing liberals to kind of tip toe around the Court, or even view it favorably. I mean, if you ask people about, you know, political figures today, it turns out that John Roberts is the–
Chris Hayes: Yes.
Leah Litman: –most favorably viewed political figure. He enjoys majority support from both Democrats and Republicans–
Chris Hayes: From Democrats. From Democrats.
Leah Litman: Right. It’s astonishing. This is the person who wrote the opinion eviscerating the Voting Rights Act, making it impossible to remedy partisan gerrymandering. I could go on and on. I mean, this is a person who at oral argument in the abortion case was, like, “Oh, what’s the difference between banning abortion at 24 weeks versus 15 weeks? Let’s just put the data aside. What are facts?”
And Democrats are, like, “Yeah, he’s our friend.” So it’s this inability to actually see what is happening before you. Maybe we’re all just frogs being slowly boiled. I mean, you’re wondering what happens if the Court overrules Roe. Will it be that the media says, “Well, at least they didn’t criminalize abortion and require all states to criminalize abortion. So actually, this is a quite moderate and institutionalist Court”?
I don’t know where the problem arises, but I just worry that people’s inability to see what is happening before their very eyes is a big part of the problem. Maybe it’s partially commentators and Democratic politicians’ inability to communicate effectively what is happening. But I don’t think it’s just this nostalgia for the bygone era of the Warren Court that is doing it.
Chris Hayes: I mean, I think that’s a great point. And I basically agree. Kate, and you and I I think come at this from slightly different perspectives. I’m more cynical. I don’t know, cynical. I don’t know what the right word is.
Leah Litman: Join the team.
Melissa Murray: We’re with you. She’s always very optimistic.
Chris Hayes: No, I know. (LAUGH) But I find it a ballast in my life, both intellectually (LAUGH) and emotionally, so.
Melissa Murray: But we don’t have a conjugal podcast with her, (LAUGH) so.
Chris Hayes: No but, I mean, like, I guess part of it too is, like, I think liberals have an institution fetish, you know? And so here’s the sort of devil’s advocate on the other side is, like, look, you can be super cynical and super legal realist about all this. These people are essentially political operatives who put on robes almost as a, like, cosplay to, like, fool everyone into thinking that they’re not like the other people.
It’s literally like a visual symbolic thing. Like, “Oh, I put my robe on now. I’m no longer a political actor.” (LAUGH) Like, and that works, basically. And that the whole thing is, like, a ridiculous, you know, priesthood sort of situation where, like, there are just people who make decisions.
But on the other hand, which I think is your view, and I would love to hear it from you, is, like, no, like, the rule of law means something. And stare decisis means something. And judges are different than politicians. And when it comes down to, like, the chips being down in democracy, if the Court’s gonna be, like, “Yes, Donald Trump, you get your coup,” like, there’s a certain level of integrity or something different about the way the law and the Courts work that we could count on them more to say, “You won’t get your coup, Donald Trump,” than we can, say, the House of Representatives.
Kate Shaw: Right, yeah. Like, we’ve had this conversation (LAUGH) before. Do you trust Brett Kavanaugh or Marjorie Taylor Greene more? And, (LAUGH) like, yeah. I mean, like, my, like, short answer is, obviously, I trust Brett Kavanaugh more, which is a very low bar, right, I will grant you.
I mean, look, in terms of your question about sort of the broader trajectory of the Court, yes, I mean, I think that one way to understand the history is that there’s a brief period of a couple of decades, really, in the ’50s and ’60s in which the Court kind of, like, actually realizes its true potential.
That it fell way, way short of it previously, and way, way short of it subsequently, with some important exceptions, right? Like, the gay rights cases that Anthony Kennedy was the author of, like, you know, it’s really hard to suggest that the Court has just been an institution that has advanced injustice and inequality in the last couple of decades, when you have those cases on the books.
You mentioned Brown and Melissa mentioned Loving previously, Cooper versus Aaron. But just throw in, you know, Baker versus Carr and the one person, one vote cases, right? Like, the Court has been at important historical moments. The only actor in our incredibly dysfunctional system that has had the institutional role and power to actually disrupt deep democratic function and to actually facilitate the functioning of democracy. Now again, for all the reasons that Leah identified, John Roberts sort of chief among them, I don’t have a lot of confidence that this Court will serve that role–
Chris Hayes: This Court, right.
Kate Shaw: –although when you’re asking about this Court’s willingness to actually facilitate or accede to a successful coup, I think that there is a chance that the kind of rule of law culture in which a lot of this justices are steeped could actually make an incredibly important difference in a moment in which they were being asked to accept some facially preposterous reading of the Electoral Count Act or the Twelfth Amendment. So I do think that it might matter there that they understand themselves to occupy a role different from sort of just politicians sort of maximizing power.
Chris Hayes: I wanna say two things. One is that I actually agree with you on this. I think your point about, like, acculturation, it’s, like, purely a sort of, like, peer effect acculturation thing for the same reason I think Mike Pence did it. Like, who will look at you in what way reputationally, as opposed to, like, some deep principle?
But I do think that acculturation point is correct. I will also say that we’re on Zoom and, like, Melissa and Leah and are, like, “No.” (LAUGH) They’re, like, shaking their head vigorously in (LAUGH) disagreement at this point, even though on this one, even though I consider myself more in the sort of cynical camp, like, I actually do agree with you.
I think, like, when it comes to, like, you know, is the Supreme Court down for a coup, I think even the conservatives are probably gonna be less likely than some of the, like, quote, small D “democratically elected” members of the Republican would be down for a coup. And so in that sense, I think you could see it as, like, a guardrail or whatever. But Leah and Melissa, you guys don’t seem to agree.
Melissa Murray: Yeah. (SIGH) I was gonna say that’s so romantic, (LAUGH) Chris. Like, you guys should get a podcast. (LAUGH) I think as lawyers, we are trained to believe in institutions. I think it’s really hard to believe blindly in institutions after everything we’ve seen over the last couple of years, and especially everything we’ve seen over the last 12 months.
You know, I’ll give you Mike Pence, like, pulled up short of an actual coup in part because I think he is part of a generation that does care about what other people think. But, you know, once you sort of take down that veneer of, you know, just social propriety and you normalize coup-like behavior, (LAUGH) if you will, what’s to stop the next person from saying, “You know what? Yes. Like, I’m not certifying those results”?
So, I mean, I just think we are a civility and norms laden society where norms and civility are going out the window. And in the face of that, we’re relying on these institutions to keep these guardrails in place. And what we’re finding is that the institutions themselves are as bound by these norms that are eroding as anything else.
And I just don’t know that we can put our faith blindly in those institutions. And I agree that the Court has often been a force for quite progressive change. It has also been really regressive, even in our own lifetime. I mean, you know, look at the whole trajectory of reproductive rights.
I mean, we’re talking about Roe hanging on by a thread. They have chipped away at it so substantially. I mean, it’s a nub for most people in most of the country. And, you know, I think you can’t look away from that. Like, it is a counter majoritarian institution by design. And it is acting counter majoritarianly.
Leah Litman: I also think it would be a mistake to suggest there are somehow totally independent and discreet norms that are uniquely going to prevent the Court from going along with the slow and steady disillusion of democracy because think about, for example, the behavior we were alluding to in Wisconsin, where you have Republicans thinking about how to basically allow the heavily gerrymandered legislature to assign where the state’s presidential electors are selected.
Guess where that idea has its roots in? In this insane doctrine that the Supreme Court pioneered and that a majority of the current justices may very well believe in. You know, that some justices signed off on in Bush versus Gore, and that Barrett, Roberts, and Kavanaugh worked on as part of the Bush campaign.
Or you think about Shelby County eviscerating the Voting Rights Act. I think that normalized the opposition to the Voting Rights Act, which had been previously renewed unanimously in the Senate. So I think that this Court is vulnerable to the same kind of influence and the slow and steady erosion of norms that help sustain democracy that Melissa alluded to.
And they have also played a role in eviscerating them. I don’t think tomorrow Neil Gorsuch is gonna write an opinion that says, “I declare Donald Trump king and emperor forever.” But I do think they will, and have, issued decisions that enable democratic decline, enable autocracy, and further undermine democracy to a point where we will no longer recognize, you know, our government as, like, a legitimate, healthy democracy.
Chris Hayes: Yeah. And the one thing I would add is just, like, the one thing I do feel quite certain of is that if the election had been entirely the same and Joe Biden wins by 7 million votes, but it comes down to just Georgia and it’s 1,100 votes as opposed to 11,000, they 100% find a way (LAUGH) to give the election–
Leah Litman: Exactly.
Chris Hayes: –to Donald Trump, no question. In fact, you know, like, it’s, like, it was the margins were too big. And, you know, Mitch McConnell gave this amazing speech when he voted to certify, or voted to count the electors. The subject of the speech was, like, “This is not how you steal election, you idiots. You look like clowns.”
And basically it’s, like, “Bush v. Gore’s the way you steal. Like, you have to dress this up in, like, plausible (LAUGH) legal theories and legal claims. And you can’t be, like, running your idiot sideshow with Rudy Giuliani’s hair paste coming down his cheek, and Sidney Powell saying, ‘The ghost of Hugo Chavez hacked all the machines,’ or you look ridiculous. Get it together, you idiots.” But the sort of flip side was, like, obviously, if it came down to 1,100 votes and they had a plausible legal theory in Georgia, like, who are we kidding about (LAUGH) what this Court would’ve done? Like, I have zero-zero faith in them.
Melissa Murray: Right. And that’s what I’m imagining when I’m saying, like, is this Court going to enable coup-like behavior and the destruction of democracy.
Kate Shaw: To be clear, I totally agree with the Georgia scenario. But they were not willing to accept, like, the original jurisdiction complaint filed by Texas, right, seeking to throw out the electoral votes of a number of other states, right? And that’s something that–
Melissa Murray: But neither was–
Kate Shaw: –you could imagine.
Melissa Murray: –Mitch McConnell, (LAUGH) right?
Chris Hayes: Yes, but on the other side of it, there were, what, two dozen Republican attorneys general.
Melissa Murray: But I think that goes to, like, Kate’s observation. (LAUGH) Like, who do you trust, Brett Kavanaugh or Marjorie Taylor Greene? Like, all of those claims look like they were written by Marjorie Taylor Greene.
Chris Hayes: Yes.
Melissa Murray: Like, if they just–
Chris Hayes: Yes.
Melissa Murray: –come (LAUGH) from the pen of Brett Kavanaugh or, you know, some Brett Kavanaugh-esq, you know, person with the right credentials and a veneer of respectability, I think it would’ve been fine. And that’s your point, Leah.
Chris Hayes: Okay. So this has been a bleak conversation, so–
Melissa Murray: That’s what we do. That’s our brand.
Chris Hayes: It’s rough out there. Let’s end on this, two things. One is, like, the Biden administration, if you’re scoring things they’ve been good on, things they’ve been bad on, I think particularly in the first year, if you were scoring the Obama administration which, like the Biden administration (and I think it’s more than coincidence that the last two Democratic presidents have both inherited, like, a garbage fire of a country in crisis (LAUGH) and had to, like, do a lot to get them out), the Obama administration did not prioritize judges and didn’t confirm a lot.
And it was, like, just, like, a real wasted opportunity I think, particularly in that first year, first two years. That can’t be said of the Biden administration, which really has, and Chuck Schumer has. They really have confirmed a lot. And from what I can tell, and this is again not my area of expertise, but a lotta good folks and people that I know and respect or have had on the show, like Dale Ho who’s been nominated.
I think he’s probably got a tough road for some reasons. But it does seem like, at least on that level, this thing that was happening which is that the Democratic party and Democratic presidents and the Democratic center-left was not prioritizing judicial nominees and confirmations in the same way the right was, has corrected a little bit in the first year of this Biden administration. Would you agree with that, Kate?
Kate Shaw: Yeah. No, I think we all agree. I mean, I think that they’ve done a terrific job. I think that we all wanted them to send up more Appellate Court nominees faster. But I do think that the numbers at sorta the end of the year are excellent. And the sort of diversity, both racial and ethnic diversity, experiential diversity, a lot of public defenders, a lot of folks who have actually been, like Dale, voting rights lawyers or Myrna Pérez in the Second Circuit, right? So, I mean, these are terrific candidates. And I think that one happy side effect of doing judicial nominations in a filibuster-free world, that doesn’t mean everybody gets–
Chris Hayes: That’s right.
Kate Shaw: –through, but you actually can nominate real, committed progressives and at least some of them will get confirmed to Federal Court. So I do think that now we all very much hope they will have an opportunity to fill a Supreme Court vacancy very, very soon. And that’s, you know, how you really make a mark. But on the lower Federal Courts, yes, I think they’ve done a terrific job.
Melissa Murray: I agree with Kate. They have done a great job of prioritizing that, getting people through. You know, shout out to Paige Herwig and Dana Remus, who have really prioritized that. You know, I think one glaring gap though, you know, we have seen a range of experiences, including public defenders, including voting rights lawyers.
They have yet to nominate anyone with a background that extends to reproductive rights. So, I mean, it really does feel like, with regard to that aspect of the civil rights community, anyone who talks about abortion rights is kind of the third rail.
Chris Hayes: That’s interesting. What do you think, Leah?
Leah Litman: Yeah, so I agree. They’ve done a great job on that front. I also agree with that omission, which they could immediately and promptly correct by nominating Julie Rikelman to any District Court in the United States. And the Courts would be much better for it. She’s the advocate who argued the Mississippi abortion case on behalf of the clinics.
Melissa Murray: Julie Rikelman for the Fifth Circuit.
Leah Litman: Yes. (LAUGH)
Melissa Murray: Yes.
Chris Hayes: And am I right that she’s pretty young, Julie Rikelman?
Leah Litman: Uh-huh (AFFIRM). Yup.
Melissa Murray: Yup.
Chris Hayes: I saw that the advocate who argued Roe at the age of, was it 26 or–
Melissa Murray: She’s 26 years old–
Kate Shaw: Yes, 26.
Melissa Murray: –Sarah Weddington. She and Linda–
Chris Hayes: Sarah Weddington.
Melissa Murray: –Coffee. Linda Coffee did not argue it, but they worked on it together. And they were only a few years out of the University of–
Chris Hayes: So wild.
Melissa Murray: –Texas Law School. Yeah. Just absolutely phenomenal.
Chris Hayes: So maybe we can land here. So Sarah Weddington, rest in peace, she passed away, actually was the lawyer who argued that case at 26 for the Court. And is that the sound? The lawyer on the other side that people are now listening to Why Is This Happening?, if you go over and listen to Strict Scrutiny, it opens with sound of the oral arguments of Roe. Is it Texas solicitor general? Who?
Kate Shaw: He’s like a DA. He’s like a local. I think he’s, like, the local DA.
Melissa Murray: Yeah, who argued. Yeah. Yeah, yeah, he was a DA.
Chris Hayes: And he basically opens (LAUGH) with a joke about how when a man goes up against such beautiful women, (LAUGH) he’s bound to lose, right?
Kate Shaw: They are going to have the last word.
Leah Litman: Yeah. That they’re always gonna get the last word. Yeah. (LAUGH)
Melissa Murray: “Two beautiful ladies. They’re always gonna get–“
Chris Hayes: Surreal.
Melissa Murray: “–the last word.” It’s peak Texas.
Chris Hayes: It’s a real good time capsule. Well, let’s end here. How should normal citizens think about what they do? (LAUGH) Like, I don’t wanna be too, like, prescriptive, but I do think that, like, I’m a normal news consumer and I care about democracy and I care about justice.
And I care about reproductive rights. I care about civil rights and voting rights. And, like, there’s this six-three Court. You know, I can’t change anything about that. And it’s not, like, the local congressional race where I can go knock on doors.
And it’s not like, to the extent that there are other areas of life, of political life, where people feel like, “Well, I can do this. I can donate money or I can knock on doors, or I can talk to neighbors about this, or even organize at a local level on, you know, they’re tryin’ to recall my progressive district attorney,” like, the Court just feels so out of the realm of democratic control. And so it feels a little enervating. And I guess I wonder, like, and maybe there’s no answer here, but, like, what do you do if you’re, like, the average citizen thinking about this Court and what it’s gonna mean?
Kate Shaw: I mean, one thing to echo something that Leah said earlier is I think that you can actually try to sort of center the Court in your political life in a way that it hasn’t been previously. So to understand that the votes you cast, in particular for president and senator, have everything to do with the composition of the Court.
And so to the extent that you are somebody who is inclined, you know, to vote and to mobilize and to give money and to attend rallies with the Court kind of front and center of that, like it should be. And on the political right, it has been for a long, long time, and it hasn’t been on the left.
Now, you’re talking about, you know, ordinary citizens and not political players. But I think this is true both of, you know, the individuals who, you know, staff and run campaigns for, you know, federal or state or local office. You know, I think that there’s a connection between the Court and votes for, you know, state legislature as well.
Like, again to Leah’s point, even if the Court says that states can prohibit abortion if they want to, right, like, actually voting to attempt to implement your policy preferences with respect to the choices that those elected officials do make is something that also is connected to the Court. So I think that sort of, yeah, again, centering the Court in our political lives is something critical and actually, you know, actionable.
Melissa Murray: I also think related to that point is trying to not necessarily disaggregate the question of politics from the question of what the Court does. Or even sort of doctrinal content, I mean, we’re so used to thinking about, you know, “This is about voting rights and this is about reproductive rights,” when in fact, they’re inextricably linked.
Like, you don’t get laws like SB8 unless Texas has been able to completely gerrymander the process, such that people who would speak out about SB8 are suppressed in doing so because of the way the votes are cast and counted. So they’re inextricably linked to each other.
And in fact, when you have control of a state house, you’re able to pass these really extreme laws. So, I mean, they all kind of run together. And I think thinking about them as part of a project of anti-democratic fervor, as opposed to these singular kinds of questions is really important.
And then I think if you’re someone who is inclined to have a regular diet of media, whether it’s MSNBC or whatever, to ask, like, “What else? What else do we not know?” I mean, you know, I just think about a couple of years ago when there was coverage of then the challenge to a Louisiana admitting privileges law.
And, you know, the Court upheld Roe versus Wade. That was portrayed as a massive victory on almost every media news outlet. And, you know, there are those of us who went on, but it was hard to sort of say in those sound bite periods, like, “This isn’t actually a victory. It’s actually a retrenchment in a lot of ways.” And let me explain why. So I think if you’re watching media and that’s what consuming, ask, “What else do I need to know?” Come listen to Strict Scrutiny. We’ll tell you what else we can’t tell you when we go on MSNBC. (LAUGH)
Leah Litman: I guess to that, maybe combining them both, a way of kind of centering the Court in your political life is just learning more about what the Court does. I think no matter what the issue is you care about, I mean, just thinking about this term, climate change, gun safety, reproductive rights and justice, COVID-19 and containing the spread of a deadly virus.
Those issues are all things the Court is going to weigh in on. And I think the more people learn about the Court, the more their views on it might change. And don’t just read the headlines or read kind of the main press outlets about what the Court is doing because that I think can and does obscure, you know, what is actually happening here, as Melissa suggested.
Chris Hayes: My one action item is if Gallup calls you up, don’t tell them you approve (LAUGH) of John Roberts’ job. That’s a really important action item to anyone listening to this. Leah Litman, Melissa Murray, and Kate Shaw, who are the co-hosts of Strict Scrutiny, wherever you’re listening right now, you can just search “Strict Scrutiny” and subscribe to it on the same platform.
Episodes come out once or twice a week, depending. Sometimes they do emergency episodes three or four times a week, usually when things (LAUGH) are going terribly, actually. It’s sort of a negative indicator if there’s lots of Strict Scrutiny podcasts in your feed. But you should definitely check it out if you enjoyed this conversation. Guys, thank you so, so, so much.
Kate Shaw: Thanks, Chris.
Leah Litman: Thank you.
Melissa Murray: Thanks for having us.
Chris Hayes: Once again, great thanks to my wife, Kate Shaw, and her Strict Scrutiny co-hosts Melissa Murray and Leah Litman. If you liked that conversation, we’ve had Kate on the program two other times. You can search for those in the WITHpod archives. Tweet us with the hashtag #WITHpod. Email WITHpod@gmail.com.
Why Is This Happening? is presented by MSNBC and NBC News, produced by the All In team and features music by Edie Cooper. You can see more of our work, including links to things we mentioned here, by going to NBCNews.com/WhyIsThisHappening.
Tweet us with the hashtag #WITHpod, email WITHpod@gmail.com. “Why Is This Happening?” is presented by MSNBC and NBC News, produced by the “All In” team and features music by Eddie Cooper. You can see more of our work, including links to things we mentioned here, by going to nbcnews.com/whyisthishappening.