Rule of Lawlessness | Crooked Media
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October 07, 2022
Positively Dreadful
Rule of Lawlessness

In This Episode

Over the next several months, the Supreme Court is poised to hear a ludicrous number of ominous cases that could destroy everything from free and fair presidential elections to what’s left of the Voting Rights Act, to Medicaid to the private right to censor Nazis and porn online. And we’re all spectators. Justice Alito and his allies in robes laugh their asses off knowing there are unlikely to be any consequences for commandeering the country on behalf of right-wing interests and shaping it to their personal and political whims. Who are the leaders we can turn to while the judiciary literally and figuratively scorches the earth? Dahlia Lithwick joins to talk about her new book Lady Justice, reversing the legal damage of the Trump administration, and how we can restore legitimacy to the Supreme Court before it does irreversible damage.

 

TRANSCRIPT

 

Brian Beutler: Hello and welcome to Positively Dreadful. I’m your host, Brian Beutler. It’s October now, which in even numbered years marks the unofficial beginning of the final sprint to Election Day. But quite apart from elections or mostly apart from them anyhow, it also marks the beginning of a new term for the Supreme Court. And this year, more than others I can remember, it was marked by these kind of incredibly dramatic contrasts. On one more inspiring hand, Ketanji Brown Jackson began her official service as an associate justice, the first Black female justice in the history of the court. On the other hand, it’s still the Supreme Court. It’s still this Supreme Court. Titularly, it’s the Roberts court. But Sam Alito has been flying around the world acting like he owns the place, and he’s not exactly wrong. This term, the court is poised to hear just a ludicrous number of ominous cases where if Alito has his way, he’ll leave a wake of destruction that’ll include everything from free and fair presidential elections to what’s left of the Voting Rights Act, to Medicaid to the private right to censor Nazis and porn online. This is all after Alito and his colleagues overturn Roe v. Wade and sent the court’s public legitimacy into the toilet, a backlash that has given this rightwing majority seemingly zero pause. And that’s perhaps because they can see the lay of the political land as well as us lowly pundits, and they know they’re unlikely to be any consequences if they continue to commandeer the country and shape it to their personal and political whims. So that’s the contrast, and it played out in real time already. On Monday, Justice Brown Jackson, in oral arguments, raised some of the most probing questions in a case that could allow Alito and company to gut the Clean Water Act. On Tuesday, she did it again in a case I already alluded to, Merrill versus Milligan. That’s a case about Alabama redistricting, but it threatens to make racial gerrymandering much, much easier for red, mostly Southern states. Her correctness on the issues, though, won’t necessarily matter because they have more votes than she does. It all got me thinking of this concept called the glass cliff, which holds that glass ceilings are often broken after the men have already wrecked everything. And that sets up new generations of women in leadership to clean up intractable messes. And it leaves them likelier to fail. In a lot of ways I think we can apply the glass cliff metaphor more broadly to a whole rising generation of leaders just getting a toehold on power only to find that the sun setting leaders have scorched earth, literally and figuratively. But it definitely applies in the realm of the law and to KBJ in particular. And it’s kind of maddening to think about because in a just world, Liberals would have lock down control of the court in the Al Gore presidency. Or failing that, in the Hillary Clinton presidency. Even with a tiny measure of fair play, KBJ would have replaced Ruth Bader Ginsburg in the early months of Biden’s presidency, and we at least still have the old Roberts court rather than the new Alito court. It’s also maddening because these injustices are, at least theoretically speaking, fixable. If you were to give me personally godlike authority to pick the 50 Democratic senators and the 220 House Democrats serving in Congress today, they’d have reversed the theft of the courts and strengthened US democracy in a hundred different ways. But those aren’t the leaders we have, and so we just muddle through while Sam Alito laughs his ass off. It’s not a great state of affairs, but it’s also not inscribed anywhere that this is how things have to be. We can probably look ahead a few months pretty well and prepare ourselves for what the court will do in the near term. But we can’t know for sure if and when the court will be done in by its own hubris, or if the five or six most right wing justices have already done that without fully understanding why. And that’s why we’re talking to Dahlia Lithwick today. Dahlia is one of my all time favorite podcast guests. She’s a constitutional law expert in her own right. She’s also just published a new book called Lady Justice, which is a series of profiles of female leaders, women in the law who stepped up and made use of their legal talents to limit or reverse the damage of the Trump presidency in real time. And that’s the knowledge we need to tap into to understand, A, what’s coming from the Supreme Court and, B, who are the leaders, women and men we can turn to if we’re going to turn things around before we fall off the glass cliff together? So, Dahlia Lithwick, welcome to Positively Dreadful.

 

Dahlia Lithwick: Holy cow. Brian, I thought I was depressed before, [laugh] and you just, like, held my head under the bathtub for, like, four sustained minutes. But I think, really, I had actually not heard the term glass cliff, but I think that is exactly, exactly the moment we’re in where just at the moment when, you know, brilliant women in the law can and should be flourishing, they’re being left to do exactly what you just described Justice Jackson doing this week in oral arguments both in Clean Water Act and in Merrill, which is being so singularly, purposefully brilliant, all in service of a dissent.

 

Brian Beutler: Yeah. I mean, it really felt I guess technically I’m reading the accounts of her questioning that what you’re hearing is somebody who already kind of understands that their role is to be as unimpeachable, a voice for what’s right in an environment where wrong is going to win out, most likely. Which is depressing. But, you know, also, hopefully from time to time, she’ll be so good in that role that she’ll shame the Alito five or one of them, at least into into not doing what they set out to do before they even heard the arguments.

 

Dahlia Lithwick: And I would just maybe add, because I just listened to the arguments in Maryland, I was so struck. I wonder what you think by a court that is really, I think, on the ropes on this legitimacy question. You know, like Alito and Roberts can scold us for feeling what we feel and seeing what we see and knowing what we know. But the truth is, Gallup polling, that’s not you and me doing that. And I just can’t help but wonder if the decision to continue to allow real time audio to flood out on C-SPAN, which is a, you know, COVID decision that they’ve now decided to perpetuate. And I can’t help but think that the optics of having three women you know, Elena Kagan, a Jew, Sonia Sotomayor, Latina, Ketanji Brown Jackson, a Black woman, just absolutely issuing a beat down to the pretext that’s offered both in the Clean Water Act case and the Alabama voting rights case. I mean, I just wonder if John Roberts isn’t in his chambers right now being like, hmm, might have been a mistake to let people hear this.

 

Brian Beutler: [laugh] I mean, I think John Roberts probably imagined he was going to be the leader of the right wing of the court in perpetuity. And Trump and McConnell and Amy Coney Barrett kind of cut his legs out from under him. And so he ended up in this hodgepodge of decisions that he’d made for himself, but without really the ability to to determine beforehand how these contentious cases are going to come out. And so Alito is just kind of kind of running the show on terms that Roberts set, thinking we’re going to be the same more incrementally right wing court that we’ve been for the last 15 years. Oops. [laugh]

 

Dahlia Lithwick: Oops, oops, yeah.

 

Brian Beutler: So your book for me was a real trip down memory lane for those who haven’t read it. It starts with Sally Yates and the Muslim ban and her sort of heroic refusal to defend that in court for the few days that she was acting attorney general in the Trump presidency. And then it winds its way through key flash points in the Trump presidency, like Charlottesville and the 2018 midterms, highlighting different ways these different all-star women lawyers used their talents and their powers within the sort of unorganized legal resistance. And I’m wondering if you felt tension as you were writing between these these detailed accounts of how the law can be used for good, how these women use the law for good, and the larger currents in the law itself.

 

Dahlia Lithwick: Yeah. I mean, when I started writing this book, to be sure, I thought I was writing some kind of history of an era that would end in 2020 and that did end in 2020, but got worse right [laugh] in a whole bunch of ways that I didn’t anticipate. And so if you had told me when I started writing this book that the law itself would be weaponized by Donald Trump’s lawyers to try to set aside the 2020 election. Right. And that that, in fact, might be blessed this term, as you suggested, in this independent state legislature theory, the whole idea that the law was a bulwark against, you know, the worst forms of, you know, revanchism and, you know, needless punitive abuse of women and vulnerable people. And that, you know, all of the things that I’m trying to celebrate in the book are then the things that the law is now, if you look at the U.S. Supreme Court going to be weaponized again. And so it’s hard not to to say that, you know, I said this on another show and I slightly regret it, but I’ll say it anyway, because it’s my favorite constitutional quote. And it comes from Homer Simpson. And he’s talking about beer. Right. [laugh] And he says, at some point, I actually said this to Justice Kennedy once and I stand by it. The problem that Homer Simpson identifies with beer is that it’s both the cause of and solution to all of our problems—

 

Brian Beutler: Mm hmm.

 

Dahlia Lithwick: –and I would say that about the law itself. And for me, the book really has to exist in that tension, in that scene between the fact that the law both, I think in many important ways, protected us from the worst excesses of Trumpism, of a, you know, absolutely corrupt Justice Department, of, you know, attempts to use the law to separate families, to inflict such suffering on, you know, LGBTQ, you know, families and service members, all of that. And also that the law got us out of it. And so I think that that’s what you’re identifying. And it’s really the parts of the book that I had to rewrite literally in the five or six days after Dobbs came down, are sitting squarely in that tension of, you know, what do you do about the fact that Brigitte Amiri’s whole chapter is about using the law and succeeding to make sure that migrant teens at the border could get abortions to which they were lawfully entitled in Texas. And then Dobbs comes down, and now there’s no abortions to which anyone isn’t lawfully entitled in Texas.

 

Brian Beutler: So I was going to ask my, the the question I had written down next was, can the law be a tool of salvation for the country in an era where the rule of law, especially as applied to the right wing, is eroding? The Supreme Court is, I call it, stolen. It’s definitely highly partisan. A new generation of federal judges clearly views that ruling corruptly on behalf of Republican and right wing interests is essential to their career prospects if they want to rise to a higher court. So I need to rephrase now because. Your book is is explains how the law can still be used for good in that context. I guess the way I’d rephrase that is to how long under the current rules and the current setup cannot continue to be true given where things are headed and who has the power now.

 

Dahlia Lithwick: I mean, my depressing answer is two fold, and both folds are, to be sure, depressing. [laugh] And the first is, you know, I think and this was always my answer when people were mad at Merrick Garland, you know, where they were mad at Bob Mueller, or they want to see, you know, a one to one correlation between Bill Barr’s completely corroded Justice Department and Merrick Garland’s, you know, Justice Department. Which should be similarly repurposed to prosecute enemies of Biden. And my answer is always the same. And it’s depressing, which is if you are in any way a proponent of rule of law, a proponent of institutional ism, you always have this two front war, right? Because you simultaneously have to do the thing you’re doing and you have to prop up an institution that Bill Barr did not care if it burnt to the ground. Right. I mean, Steve Bannon’s fantasy is that every institution burns to the ground. And if you’re Judge Aileen Cannon, you don’t care about the selling of nuclear secrets to foreign powers and you frankly don’t care about, you know, any of the prerogatives and interests of the Justice Department. And so it’s just really easy to be a nihilist, and it’s very hard to be an institutionalist because you are forever kind of pushing and pulling at that same question of, of course, if I want to unleash Merrick Garland and tie a bat cape around him and have him, you know, indict, indict, indict until the cows come home, I can be frustrated, too, but he’s trying to do two things, and one of them is prop up the notion of an independent Justice Department. So that’s the first answer. And I just think we forget or we don’t fully credit how hard it is to do those two things because they operate in tension. And then the second, even more depressing answer is not only that the nihilists win because they don’t care, but that I don’t know what the alternative to the rule of law is. And so when the question is, oh, come on, let’s just, you know, fight this out with like flying, you know, ninja kicks on the street instead of the rule of law. Like, I know I will lose. And possibly, depending on your, like, ninja kicking skills, you will lose too. And so I think that we’re in this very depressing double bind where the mere act of fighting for something that we have learned to be a network of norms and values and unenforceable ideas, and that we have to pin our hopes on that. And it sucks because if you just pin your hopes on, you know, what Bill Barr did, which is give pardons to Donald Trump’s friends and, you know, go after his enemies, it’s just a much easier enterprise. But I do think and I and I say this all the time and I’m not kidding. I actually don’t want the Supreme Court to be a thing that has a 0% approval rating because I don’t know what steps in when the Supreme Court issues an opinion and nobody follows it, but I’m pretty sure it’s the Army. [laugh]

 

Brian Beutler: I mean, what you’re saying about specifically Garland. I do appreciate the bind he’s in. I also wonder if it’s how much of it is real and how much of it is in his head. And also, like in the heads of a lot of liberals, this idea, I think what you’re talking about is trying to balance perceptions of legitimacy with ignoring the perceptions piece of the equation, just doing what what you know, to be right. And obviously, what would be right is criminals like Donald Trump get indicted and go to prison or at least get tried. And the perception problem that he’s worried about is that if he applies the law to Donald Trump without fear or favor the way he would to somebody lower on the political totem pole or in a drug cartel or whoever else Trump will tell the country and much of the country will believe without him having to tell them that, Oh, this is just revenge and this is not legitimate, and it’s going to make people angry and they’re going to lash out in various ways. But that gives short shrift to the other half of the perception problem, which is, well, if you’re if you if you’re if you’re for the purposes of perception, going to go easy on Trump in all these investigations. And I mean, they have gone easy on him, right? Like like the process they they have followed to try to get all those documents he stole back would not have been the process they used if I walked into a executive branch office and stole a bunch of classified documents. Right. They they’ve been really generous with their time with Donald Trump. [laugh] And in doing so, right like that is corrosive, too, to the rule of law for people who actually believe in the rule of law, not people who just believe in Donald Trump, and that it would, Merrick Garland might feel like a great sense of release if he just accepted that the perceptions piece of of the integrity of the Justice Department thing was not he. He can’t marionette that. He can’t he can’t control it super easily. And so he should just kind of let it go.

 

Dahlia Lithwick: I don’t disagree. And, you know, it’s always tufted. I mean, I remember having these, you know, fights about Mueller and the sort of tentative ways in which he handled the obstruction of justice. You know, there was so many places where he could have gone for it and he put all these institutional prerogatives first. And, you know, it’s the same tension. Right. And I and I, I can’t exactly, you know, defend the argument I’m putting forward, which is, you know, don’t be bold because you’re trying to prop up an institution at the same time. And I understand I think I just want to say that descriptively, you know, time and time again. I mean, I saw this all the time with, you know, people who just wanted to, like, just trash Stephen Breyer for his endless, you know, sonnets about how we’re all friends. And there’s nothing to see here. And, you know, there’s no rancor or partisanship on the court. And, you know, a lot of my colleagues in the press just would wanted to set themselves on fire and say, like, use whatever credibility you have left to point out the obvious, which is that the institution is broken. Why are you shoring up a broken institution? And I guess I’m just this is my sad defense of old white guys, I guess. But I just feel as though every one of the people we’re talking about is, in the end of the day, one of like just the most small C conservative liberals you’re ever going to meet. Right. And Mueller’s probably not even a small C conservative liberal. And I think it’s just those are the people who do this work. And there’s a reason that Sonia Sotomayor doesn’t say what Stephen Breyer does straight. And I don’t know that you’re going to catch Ketanji Brown Jackson, you know, at pains to say, oh, you know, Ginni Thomas should be allowed to do whatever she needs to do because I’m a feminist and because they’re lovely people, I don’t know that they’d go as far as he goes, but I also just think in a weird way, they’re clinging to the vestiges of an idea about an institution that for them is the only thing they know how to fight for. And I’m not defending it. I’m just trying to explain. [laughter]

 

Brian Beutler: No, yeah, I mean, I, you know, and you see it outside the law, too, with with the senators and President Biden, former senator, defending the Senate and the filibuster. And, you know. Like—

 

Dahlia Lithwick: And Joe Biden refusing to expand the court or even talk about it like it’s the same—

 

Brian Beutler: Right.

 

Dahlia Lithwick: —it’s such a cramped view of the institution. But it’s also I mean, I think these these are people who came up, oh, my God, it’s Dianne Feinstein, right? Like they came up in a time where this is the only thing they know.

 

Brian Beutler: Yeah, I have this. Grand unified theory about liberalism in general, which is that like its insistence on consensus building and propping up institutions and thus not sort of playing hardball against authoritarian forces that would that want liberalism to collapse so that they can come and take over. Right. Is. The thing that ultimately feeds the inevitable hot conflict that you were kind of alluding to, at which point like those same liberals like the the sort of mealy mouthed people who can’t quite get themselves to win a fight before it gets really bad are, you know, are the professors and whatever who end up taking up arms in the in the grand conflict [laugh] to save the world. So it’s like, you know, I see it happening everywhere and I feel like I’d rather I’d rather have the fight now on these sort of like hardball politics terms and hardball legal terms than get to the places Steve Bannon wants us to get, where it’s like the ones who already have the guns versus those of us in the ivory tower who will have to learn to use them. [laugh]

 

Dahlia Lithwick: Let me push back on one tiny piece of that, which is because I asked every single attorney that I interviewed for the book a version of this question, you know, how the hell can you be so invested in a legal system that has worked for centuries to oppress, you know, women and people of color? This is insane. And some of them, you know, like Becca Heller, the founder of IRAP, and the person who, you know, fought the travel ban in the first days is really candid, right? She’s like, it sucks. I’m using the master’s tools to, you know, disassemble the masters house. That was like, let me be clear. The law is terrible, but it’s what we have. And then like really interestingly and this kind of breaks on a color line that I think is interesting. People like Vanita Gupta, you know, who’s number three in Garland’s Justice Department now, but was head of the leadership conference when I interviewed her. People like Anita Hill, people like Nina Perales at MALDEF, are all much less apt to advocate for what you’re saying, which is let’s just call it politics. Take off the gloves and have the fight, because this is all an illusion. And it’s interesting to me and you know, again, it’s an end of eight or nine interviews. And so I don’t want to generalize across gender or race lines, but I do think it’s really in its own way. If you are a person of color and you have never had the benefit of the rule of law, working really to serve your interests in ways that are improbable but really fascinating. Some of those folks are the ones who are most committed to the proposition that the rule of law is all we have left. And that’s fascinating.

 

Brian Beutler: I am not sure how much we disagree. You know, in the case of Merrick Garland, what I think I’m saying is use the law, just use it aggressively. In the case of like the you know, when these institutional actors kind of engage in punditry about the institution, should they go out and say this system is is broken or corrupted and we need to fix it? I, I hear what they’re saying. Like, you know, I have lots of not lots of I have a number of friends who are like appellate practitioners and they have to argue before judges. And I don’t necessarily think it would serve their interests or the common good for them to [laugh] like to burn their bridges and and call it like they would might privately tell me they see it and so that they can keep using the power that they have to to push back effectively. Like, that’s totally reasonable to me. But it’s the it’s like the people who. Are in the crosshairs as opposed to working within the system. You know, these are people who have taken over these institutions who, you know, they want to, like destroy Joe Biden and his family. And I mean, if I were in his shoes, I think that I might be a little less tolerant of that. Even if I had advisers telling me it would be strategically unwise to blah, blah, blah. I mean, and I anyway, it’s you end up having to kind of parse it scenario by scenario. But, but no, I like if I conveyed the impression that I think Merrick Garland or anyone should like trespass the boundaries of rule of law to do what’s right. Like, no, that’s not that’s not what I’m saying.

 

Dahlia Lithwick: Yeah, no, I don’t think you’re saying that. And I think maybe another way like this is the context in which I think about it, you know, all day. Every day, which is court expansion, right? Which is something that I was wildly opposed to for almost all of my career and have really come around very, very recently to the idea that we simply must add four seats or we’re all doomed for reasons that, you know, I think the doomsday clock is like right, right up ticking out the last seconds on this. And I think it’s just, you know, the kinds of people maybe that’s what we’re saying is that the kinds of people who think in these terms are so wedded to sort of the institutional arrangements that that which seems like anathema really takes it’s hard work to get you there. And I say that as somebody who like I now wish to be candid that I’ve been talking openly about court expansion ten years ago, when it was time to talk about court expansion, like too late. Too late. I was wrong.

 

Brian Beutler: Someday I will. I will convert you to my cause of adding a thousand seats in Supreme Court. [laughter]

 

Dahlia Lithwick: Okay, I’m in. I’m in, it’s a movement, lets—

 

Brian Beutler: Four, four, four will do if we get a chance. But if we really if we really want to denude the institution, that would be my way would do would work quicker. Okay. So with all that as a backdrop, what are we facing from the Supreme Court this term? Can you give us, like a very brief seminar on the most troubling cases and what the sort of bad or worst outcomes look like?

 

Dahlia Lithwick: [sigh] I think my framing of this is that is a huge mistake. And in this, the media was massively complicit to say that, you know, last term was an aberration or that Dobbs was the story of last term. And I know you and I have talked about this in other contexts, like Dobbs getting all the oxygen in some ways blunted the reality that what the court did on church state doctrine, what the court did on guns, what the court did to the EPA, like there was so much bad that happened last term that I think didn’t get surfaced correctly in the media, that it’s easy to tell the story and you’re really seeing it already in the conservative legal movement like, oh, you know, Dobbs was an aberration that makes last term an aberration. And I think what’s aberrational is the court and that’s the story we should be telling, is that this court is unlike any court we’ve ever seen. And so it almost doesn’t matter what the cases are. The cases may look slightly more benign than Dobbs, by the way, they’re not. But that this court is just, you know, pedal to the metal, what Leah Litman calls the Yolo Court. You know, they’re going for it and they’re going for it hugely. And so I think what’s aberrational is and you flicked at this when you talked about John Roberts, is that his M.O. his entire time stewarding the court was, you know, do it small, do it unnoticeable. Right. Long before there was a Shelby County, there was a precursor that laid the groundwork to Shelby County. We all missed it. Long before there was a Citizens United, there was a precursor case that we all missed. John Roberts was really good at sort of sowing the seeds of what would detonate a few terms later. And then when it happened, it seemed inevitable. That’s gone now. We’re just I mean, quite literally just trying to figure out which precedent we can blow up and how and whether we can blow it up entirely or keep the vestiges of what seems like a test. And so this is a long winded way of saying that one of the things that scared me a lot last term is that we didn’t talk about a couple of themes because we were so kind of bogged down in stare decisis and Dobbs that we didn’t talk about how many tests the court just eradicated. Right. I don’t know what the test is for the major questions doctrine. I guess we’ll find out. You know, I don’t know what the new test is for you know, First Amendment, church, state questions. The existing test is gone, but we don’t have a new one. You know, I don’t know what the new test is for one layer of doctrine after another. Everything is gone. And so we don’t know what the test is. And I think that’s one theme that I pulled out of last term. The other one that I pulled out is in addition to the sort of Yolo Court that doesn’t say if we do two big things will everything else will do small, which is what we used to see. Right. If we’re only going to go, you know, affirmative action and guns than everything else, we will we will let lie. And now we’re going big on everything. And so it’s not just the going bigness, but that there’s no hesitation to say on seven, eight, nine, 12 areas of jurisprudence. We’re going we’re swinging for the fences. And that last theme, I think, is really important because we saw and Mark Joseph Stern and I wrote about this a bunch of times at the end of the term, this pervasive kind of condemning of, you know, government officials at the CDC. They’re all in on the fix, right. Pervasive, ugh the school lawyers who are trying to lawyer the heck out of poor Coach Kennedy, who wants to break every one of them is just corrupt. You know, the poor folks at EPA who are just trying to make it harder for, you know, good people to pollute. And I think that there’s this and we heard it again this week, Justice Gorsuch in the Clean Water Act, as though every government official and government lawyer is corrupt. And it goes to this larger project of, you know, dismantling the administrative state and saying that all government agencies are inherently bad. And I think that that was a big theme last year. And what it connects to, I realize I’m not entirely responsive to your question, but I’m just trying to set the table. [laugh] But what it connects to for me is this theme of vigilantism, right? If everyone that works in the government, if every licensing official in New York who is charged with the power of deciding who gets a gun and doesn’t is corrupt. And that’s the language of, you know, brew in the gun case. All you’re doing is empowering people to take the law into their own hands. And that was a big, big I felt like that was the sort of subbasement of so much that went on last year, which is just a roundabout way of saying that. I think when I hear Justice Gorsuch in the Clean Water Act case already suggesting that everybody at the EPA just really wants to make, you know, everybody suffer and to make good people who simply want to build on their property suffer because everyone is bad. I think that’s a thing people should watch for because I think it really does empower people to say, okay, well then I’m going to just take my gun and go resolve election disputes by myself, you know, at with the poll workers. And that scares the crap out of me. Okay. Big themes this term election law, which we talked about, Merrill, that’s the what’s left of section two of the Voting Rights Act. And I think it’s fairly clear that that’s done for, which basically means if there is a racialized gerrymander, there’s nothing that plaintiffs can do to contest it. And I think that’s fairly clear. That’s why they took the case and that’s what oral argument suggested to me. And then the big one, which is Moore v. Harper, which is the independent state legislature doctrine, which is essentially I mean, it’s seven podcasts and a miniseries, but it’s essentially giving state legislatures complete, unreviewable, unchecked plenary power over how elections are run. And the best way to describe that is essentially what John Eastman and Donald Trump were telling people they could do in Georgia and Pennsylvania and Wisconsin last round, which is you just set the election procedures. No court can check you. That’s terrifying. And I think that’s coming down the pike and then just a whole bunch of really interesting race cases, whether it’s affirmative action in higher education, which is coming, whether it’s the Indian Child Welfare Act which is coming. There’s just this dogged attempt to say that the Constitution, the 14th Amendment, the Voting Rights Act are all, quote unquote, colorblind, and any attempt to remediate past harms on the basis of race is unlawful. And I think that’s coming in a whole bunch of contexts. And it’s quite scary because I think there are five, not six votes for that proposition. And then the last thing I’ll say is that the court is very, very much teeing up the follow on to the cake baker case, Masterpiece Cakeshop, where your claims of your religious liberty and your religious views will trump civil rights protections for LGBTQ couples. And that’s coming in a case about a web designer who wants to not offer services to same sex couples. And so I think in a way, maybe the very long way of saying the very long thing is that it is a huge mistake to be mollified into believing that last year was a one off. Last year was the beginning of what I think is like possibly a decade long project to essentially eradicate. Not just. You know, the Warren Court revolution, the rights and dignity and equality revolution. But to rewrite like founding documents in ways that would go back to a, quote unquote text in history, even though the text in history sometimes points in exactly the wrong direction. [music break]

 

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Brian Beutler: And the two halves of what you were saying, I almost feel like what you’re saying is that how Dobbs played out will be like how these other cases play out where like, I mean, not necessarily where like a draft opinion leaks and we have a one month or six week psychodrama while we await the actual decision. But but that as in the Dobbs case, we’re going to have a number of cases where, you know, the sort of best hope is that John Roberts is able to pick off Kavanaugh here, Gorsuch there, Coney Barrett maybe here or there for something terrible, but not five four to eliminate the Clean Water Act. Right. Like that that that dynamic is going to be the driving one in these highly ideological cases. And we’re just going to have to read tea leaves in oral arguments and maybe in news accounts about who’s going to win that tug of war. Right. And I mean, even even in the case you mentioned, Merrill, about about the Voting Rights Act. Which which was Tuesday, which is the day we’re recording this that you can kind of hear I think, Roberts and Kavanaugh are trying to come to some what they would try to frame as a middle ground. A position where I don’t know exactly how to describe it, but like there’ll still be some thin reed of action that plaintiffs who thought that a gerrymander was racist could could take, but the burden that they’d have to overcome would be almost insurmountable in every case, because states aren’t out there racially gerrymandering and writing that I’m being racist here into the law.

 

Dahlia Lithwick: Yeah, that’s exactly right. I mean, I think the way to say it is you have both an emboldened court and emboldened plaintiffs now. And, you know, that was classic, right? That’s Mississippi and Dobbs that comes in asking for one thing for a 15 week ban. And then they get Amy Coney Barrett on the bench and now they’re like, oh, wait, mid-stream. We want Roe overturned. Right. And I think it’s really important to see how this feeds on itself, because in this case in Merrill, we actually have, you know, the state of Alabama asking for the most extreme iteration of, you know, what it would mean to kneecap section two, much as in the Clean Water Act case. You know, we’re seeing the plaintiffs ask for the most extreme iteration. And then I think it just goes to how when you’ve got that asymmetry, it’s so easy to look principled and moderate, right? I mean, that’s the chief justice in Dobbs saying, oh, I’m principled and moderate because I’m not going to go for banning abortion. I’m just going to go for completely junking the prior test and five decades of precedent and saying that a 15 week ban works. Or Justice Kavanaugh, who’s like, I’m principled because I’m saying I’m going to draw the line at burdening interstate travel to get an abortion. Like the idea that this is centrism or this is moderation is entirely a function of the just rank extremism of the ask. And so I think it’s one of the things that and maybe it goes back to what you said about Aileen Cannon or James Ho, you know, people who are like now saying, oh, the conservative legal movement actually wants me to act out like they want me to simply write new law or issue some insane nationwide injunction because that’s rewarded. And I think it feeds on itself. And I think that again, it kind of goes back to our institutionalism point because I can’t remember ever even during like Clinton and Obama years, left wing judges saying like the incentive for me to be absolutely batshit crazy and push the envelope as far as like, you know, there never was that maybe, you know, occasional one offs. But I think that what you’re seeing now is a one way ratchet that is rewarded, like if Judge Cannon can get away with what she did, then why not have a judge the next day say, oh, you know, HIV medication, that too is. And so I just think in some sense, like, we’re not describing a static pattern. We’re describing a pattern in which plaintiffs are coming in and saying they’re asking for something. And then in Merrill, what we saw was like, oh, actually, we’re going to replace this intent to this affects test with an intent test that only if there’s an intentional statement that we want to, you know, have a racial gerrymander, do we win? And then you’re quite right, you get Amy Coney Barrett saying hmm that doesn’t seem right, and she suddenly seems like a centrist. That’s not centrism. That’s not centrism.

 

Brian Beutler: There’s a kind of capriciousness running through your whole critique, I think, like the tests are gone. So what replaces them or whatever? You can get five votes for whatever Sam Alito can get five votes for. And at the lower court level, I feel like they’re almost creating a whole new language of law where. Pro rule of law interests, liberal interests. The burden is on them to write the most scintillating, airtight briefs possible. Because if the judge is a recent Trump appointee who wants to be on the Supreme Court some day, or just somebody who’s in the tank for Trump for their own mental reasons, the other side’s obligation. They don’t have to write even passably quality briefs, like they just like write fake news over and over again in the brief. And like, that’s the signal to Aileen Cannon or whoever else I’m supposed to rule for them. They’re on. They’re on my team. And if I don’t rule for them, that might create trouble for me down the line. And so all that stuff, whatever goes into those hastily written garbage briefs, you know, either becomes law or becomes like makes a mess of things, at least temporarily. And then it gets to the Supreme Court and it’s left to John Roberts to try to convince Brett Kavanaugh not on the basis of any legal theory, but that, like, maybe it won’t be nice for you at the country club if you participate in overturning Roe v. Wade. And that that’s the kind of capricious thing that law ends up turning on now, because these are the people in charge.

 

Dahlia Lithwick: Yeah. And I mean, maybe the best evidence of that is this conversation we’re having about legitimacy right now, because I’m so fast. I mean, I’ve covered the court. This is my 22nd year and I’ve never seen, including after Bush v. Gore, right when [laugh] he handed the election to George W. Bush using legal reasoning that was just patently insane. So insane that the court was like, never rely on this again, because because we’re making it up.

 

Brian Beutler: Mm hmm.

 

Dahlia Lithwick: And still people hated it, but they were like, okay, you know, the court decided it better than the street fighting, right? And now we’re in a moment where it’s not because of Dobbs. And this is the category error, right? Like John Roberts and Sam Alito are like, oh, they just hate us because we’re doing our job, you know, as a minoritarian check. And, you know, the polls don’t agree with us. This has nothing to do with the polls or with Dobbs. This is the shadow docket. It’s Clarence Thomas, his wife, participating in January 6th and him failing to recuse? This is the Dobbs leak that then gets blamed on what, us? All of this stuff is happening and the blinkered way in which, you know, the court, like Sam Alito, flies to Rome and spikes the football about Dobbs and then comes back and criticizes Elena Kagan for talking about legitimacy. Right. So, I mean, this is like very I think like pernicious new ground in terms of the court’s sense of itself and its sense of itself as inviolate and untouchable and uncriticizable. But I also think it’s super interesting because and it goes back to right where we started Brian which is that Dobbs dissent in addition to being like a pretty masterful, you know, assessment of the health implications and the historical implications and all the ways in which Dobbs was wrong. But like, at the end of the day, it was kind of like a creative curve for institutionalism, right. I mean, it could just as easily have been written by Merrick Garland, because it was a way of saying, you are destroying this court and that the Casey plurality did the thing that we are not doing here, which is save the court in the public’s esteem, not because of popular opinion and not because you’re not a minoritarian check, but because you’re acting like a bunch of hacks. And the idea that that elicits personal criticism from the chief justice and Sam Alito, I think goes to both your point about institutionalist protecting institutions. Right. I mean, what Elena Kagan didn’t say in that series of speeches was this is a mess and I quit.

 

Brian Beutler: Yeah.

 

Dahlia Lithwick: Or, you know, I’m going to do oral argument like from my bathtub, you know, with a tequila because y’all are crazy. She didn’t do that. She, like, puts on her robe and she goes and she goes through the motions every day. And so, again, that asymmetry of the people who are just setting things on fire as compared to the people who are making these like very narrow, very pointed critiques about harms to the institution is the very problem we started off with, right?

 

Brian Beutler: Yeah. I mean, they are there forever. Right. And like it is wise of Elena Kagan and Sotomayor and Ketanji Brown Jackson not to like slowly raise and lower their middle fingers [laugh] at Roberts because at some point the wheel will turn again and it’ll be good to have them on the court for that day. You know, knock on wood, if we’re lucky, which is a sort of a different dilemma than the one that the people in political office face. But I guess you mentioned Mark Joseph Stern, our friend, your colleague, he published a piece, just recently about the toll this is taking on a sort of subset of law professors who feel, I guess, the same kind of tension I was talking about between living a life of reverence to the legal system and seeing it sundered in practice by the people running it. Can you help us understand why this is so hard? I mean I mean, even within yourself, you said it took it took you until very recently to come around to the court reform proposition, but like why why the people with the most knowledge about law and the legal system seem like the last ones to be able to accept what’s staring them in the face.

 

Dahlia Lithwick: I mean, partly because this is their bread and butter. Right? [laugh] They’ve spent their whole life completely steeped in the notion that if you play by these rules, you get the outcomes you want. Right. And so an awful lot of people and this is just like the madness of the legal world, you know, the same people who testify at, you know, Brett Kavanaugh’s hearings, that he’s going to be a great justice and he’s not going to overturn Roe or the people who are arguing cases in front of him. Right. And so, like the level of kind of weird self-interest, the number of law professors who send their clerks, you know, their students to clerk on the court, like the level of just weird self-dealing. And I don’t use that word with joy that exists within the legal system to protect the legal system as it is. And that believes that if you just play by all these rules, you know, like if I just keep saying that Brett Kavanaugh loves and supports women, he’s going to vote to uphold Roe. Like, so there’s an amazing amount of magical thinking that the system is just like self cleansing and self operating, and that’s clearly wrong. But I also like it does come back to my I don’t know what the alternative is. And the, you know, I believe in the rule of law because I really think that the next best alternative is chaos. And that’s what Anita Hill says in the book. And I think, you know, in some sense, the reason that, you know, all these law professors, it’s interesting in Mark’s piece, you know, all of them are talking about, you know, up until this year, I taught the law as though it was, you know, math and science. And I you know, I taught it as though it was this like, you know, communing with oracular founders. And suddenly I’m shocked, shocked that that’s not happening. And you’re just like, what? What now? Like, did you read Bush v. Gore? Like, did you read Shelby County? And I and I don’t say that to disparage them because I’m clearly one of them. But I think that, you know, for all of those of us who think about the courts and as you say, you know, broadly about, you know, political systems, the amount of like the quantum of just faith and aspiration to reality is just completely wrong. Right? Like it’s 80% faith that people are going to abide by norms and rules of the road. And when that faith falls away, I mean, and I talk about this a little bit in the book when I describe, like, how it was impossible for me to go into the court anymore after the Kavanaugh hearings, after hearing him screaming at, you know, women on the Senate, that that once that faith is kind of broken, you’re really just like trawling around for the next thing. And that’s just its own form of nihilism. I mean, then we’re just Steve Bannon people on the other side.

 

Brian Beutler: So, okay, so let’s bracket the practitioners whose bind. I do understand, even if I think that some of them could be a little bit more forthright about what they see. All law professors know what Lochner era jurisprudence is, right? What happened in the Lochner era? Most of them know and believe that it was a period where the court was essentially corrupted by like a robber baron ideology. And I guess another way to ask the question is why is it hard for I mean, in some ways, for me, it’s it’s helpful. For me, it’s like a it’s like a tonic or a salve for me to accept that it’s just happening again. Like there was never a reason to think that Lochner couldn’t happen again, that or that we were somehow immune from those kind of corrupting forces. And now here we are, and it’s happening again. And we got out of it that time through a little bit of political magic, and we could get out of this again with, you know, political hard headedness if we commit to it. But first, you have to accept what’s happening. And the piece of it I have a hard time understanding is why clinging to the to the to the fantasy or the myth or the magical thinking is easier for people who work in that system or who teach about that system than than sort of like just hard nosed, like, peeling back the blinders or whatever.

 

Dahlia Lithwick: So here’s a thing I know you’ve heard me say before, which is part of the paradox of covering the court, which is really different from covering political branches, is that it’s always both. It sucks, but it’s always both. And that you go in that building and you hold in your head both the Lochner story, right. The the legal realism. Professor Eric Segall writes about this all the time. The court isn’t a court. It’s just a bunch of partisan hacks. Why don’t we just live like that’s true? And also that it’s this other thing, right? At its best, it is doing something that is different from just pure politics. And we have benefited from that, you know, in many, many occasions. And I think that part of the split screen you’re describing is that it has been my experience, with some exceptions, that the Supreme Court press corps and the justices like that second story very much, you know, the Oracle story, the balls and strikes story. And they it doesn’t ever fail to surprise and disappoint me that when you cover a confirmation hearing, you will look around and see almost exclusively political reporters in the room, because that’s a political story. Right. And you’re like, wait, where is that Adam Liptak? You know, why is like how is it possible that like Joan Biskupic isn’t in the room? And I think that there has been why and how this happened is like a journalism story I can’t fully understand. But the way the the court press has covered the court feeds completely into that second tale of oracular jurists, you know, calling balls and strikes. I always joke that, like, for most of my career, you know, the press corps has covered the Supreme Court as though the law was alive and the justices were dead. Right. And we’re like, oh, did you see what happened to the dormant commerce clause in there? My God, that was unbelievable. [laughter] And, you know, like there is Clarence Thomas like refusing to talk for seven years. So I think there has just been a weird collision between the legal academy, the court and the dedicated Supreme Court press corps to really do that work that you’re describing of like puffing up this mythology of the oracular court. And then you’ll have, you know, at at random moments, right? Like the Ginni Thomas stuff, which is not being covered by Supreme Court press, it is not being covered by the Supreme Court press. It is covered as this orthogonal political story. And so I think that by bifurcating the coverage and by, you know, in the most like cynical construction of this argument, I say that we who cover the court do it like junior law professors, right? Like we’re all little Akhil Amars who are talking about the Constitution all the time. And that’s where we’re very comfortable. And so we have really colluded in pushing out the story that the justices want us to push out about this kind of perfect, if fungible nine brains in that court. And it doesn’t matter if, you know, Amy Coney Barrett replaces Ruth Bader Ginsburg because they’re both girls and like, we’ve really colluded in that. And I think that’s part of the problem is unraveling that now is really difficult. And maybe I would just say this, I felt such a marked difference last term and this term in the curtain raisers that were being written about the term in the mainstream Supreme Court press, because suddenly everybody was leading with the Gallup polling, leading with the ethics stuff, like leading with, you know, the court’s internal battles about the shadow docket and legitimacy. And every other year that I can recall, those curtain raisers the week before the first Monday in October were about the cases.

 

Brian Beutler: Did you personally then feel like a weight had been when you were like, okay, my relationship with the law on the court is fundamentally altered by the Kavanaugh situation also. Now I’m starting to realize we really do need to make political changes to the court to account for what’s happened over the last ten years. I mean, you you managed to do it. And I’m guessing it kind of felt like like like a little bit of a weight had been released. Like, okay, like, I don’t have to. Not like you were pretending. That sounds mean. That’s not what I mean. But, like, I don’t have to, like, try to. So it’s like, you know, when you realize your parents are just people or whatever, like— [laughter]

 

Dahlia Lithwick: That’s even meaner than pretending. No, it’s totally. It’s totally true. You know, I had this I was just telling Melissa Murray at NYU that I expected the moment of schadenfreude after Dobbs to last much longer than the 15 seconds that it lasted. Like, I was super bummed out that I only was able to do that like I told you so dance for 15 seconds and then it stopped being gratifying. But I think, you know, for a lot a lot of people who went into last term or I mean, I’m thinking really pointedly of the term before that, you know, was awful. And yet we were seeing all these like smart, legal, you know, progressives being like, oh, it’s not a five, you know, four chord. It’s a three, three, three chord. And look at Brett Kavanaugh at the new center of the court. But very much, you know, reasonable and in play. And look at Barrett. You know, she’s clearly clearly someone who has a different approach that’s radically different from the Federalist Society program. And I mean, how many of those did we read the term before last?

 

Brian Beutler: Delusional.

 

Dahlia Lithwick: Delusional and gaslighty. Right. Like, you know, and I said I really like it’s a tricky question you’re asking because it’s not that it was like a relief to be like, okay, now we’re all talking about the same thing. And it’s also like, oh, also we’re on fire. So I can’t say it’s a good thing, but I guess I will say, like for me, the idea that, as I said, I’ve seen such a shift in the tone of coverage in the last two years, you know, after SB 8 and after the polling numbers and a willingness on the, you know, dedicated Supreme Court press corps to say like, oh, the emperor is like so butt naked right now that it’s a, relief is the wrong word, but I think at least I feel like we’re operating in the same playing field now.

 

Brian Beutler: Yeah, it’s liberating, and it liberates you right into the realm of constant dread and fear—

 

Dahlia Lithwick: Yes. [laughter] Yes.

 

Brian Beutler: Okay. So if you were going to write a sequel that looks forward to the rising all stars who might help see us through all this, who’d be on your list for that short list?

 

Dahlia Lithwick: There really are so many extraordinary lawyers doing, you know, so much, you know, reproductive justice where, Dale Ho, who’s being hung up, you know, for a first seat, a Biden nominee, somebody who I’ve so admired for such a long time. You know, there are so many people Sherrilyn Ifill should have been, you know, in this book, I think that the work Sherrilyn has done, both at the NAACP Legal Defense Fund and sort of forward looking, you know, Cristina Rodriguez, who is one of the co-chairs of the Biden Blue Ribbon Commission on court reforms, is, you know, Melissa Murray at NYU. I mean, there’s so many, many, many young, extraordinary people, people who, you know, chapters I didn’t get to on family separation, chapters I didn’t get to on, you know, rethinking the carceral state. I mean, there’s so, so many. And I’m not saying that to deflect. I’m just saying that one of the things I wanted the book to be was not like, these are the eight lawyers, you know, that have changed the world, but they are avatars for the tens and thousands that I didn’t get to. But I do think it really is that like cheesy Mr. Rogers line, like look for the helpers. I think that, you know, on every single one of these fronts, there are massive armies of young lawyers who are doing, you know, [?], I didn’t do anything on climate change and the environment. There are people, you know, the young lawyers who are doing the Native American tribal rights stuff. Unbelievable. And so I think I just want to say, rather than like naming seven and thus offending like the next generation [laugh] for the, you know, I would just really say, I think we have been way too captive to the idea that extraordinary people are going to save us. And what I hope that the takeaway of the book is, is that ordinary people saved us and ordinary people are going to continue to save us and they’re not going to get mugs and they’re not going to get tote bags. And we’re not all going to know their names, but like turn around and help them and lift them up because holy hell, like they are everywhere. We just don’t give them attention.

 

Brian Beutler: Do they have an, an RBG problem in the form of like an old guard of leaders who will not give up the reins in a timely fashion so that they can come save the world?

 

Dahlia Lithwick: I’m not seeing it as much as I thought I might. I think that there certainly are generational shifts. And I think Vanita Gupta talks about this in her chapter in the book that, you know, the youngs are juggernauts and they don’t have a ton of patience for us olds. But I also think that, you know, one of the things that that I tried to flag in the book is someone like Becca Heller, who just, you know, in the face of a whole bunch of institutionalists telling her, like, don’t fight the travel ban, don’t, you know, go into the airports and find volunteer lawyers. Did it anyway. And I think that we’re in this kind of cool moment where you don’t necessarily need a storied institution behind you to make huge change. And so many of the people I’m seeing, particularly now in the reproductive rights context, are just, you know, people I’m thinking of Rochelle Garza, who I write a little bit in Texas in the abortion context, who just, you know, has vaulted from somebody who was the guardian ad litem for someone, you know, we describe in the book and is now running for office. And so I think that there’s maybe less of like formal stairway you have to climb.

 

Brian Beutler: Mm hmm.

 

Dahlia Lithwick: I think it’s enough in some ways to just be a young attorney who is like fiercely committed to democracy reform.

 

Brian Beutler: Okay, then what does the scenario where this all kind of pans out okay. What does it look like? Like, where we aren’t living in Sam Alito’s world until he croaks? Or maybe even longer than that. Like two years. Ten years? How do we get there?

 

Dahlia Lithwick: I mean, this is this is that line that you started with that I think is worrying, which is Sam Alito’s majority opinion in Dobbs says, A, women are totally invisible to me because they’re not in the in any of the founding documents. Sorry. Don’t care. And then. But women are not without electoral power. So if you don’t like what your state legislature is doing, go vote. And that’s the Sam Alito that, you know, in the Merrill case, in in the independent state legislature case and in Brnovich and in Shelby, you know, has made it harder and harder for people to vote, particularly women of color, who are the ones who are much, much, much more affected by Dobbs, right. So I think the problem is that this is never just going to be about winning cases. It’s going to be about massive structural reform. It’s all the stuff you and I have been sort of banging on about for a long time, which is this doesn’t change with the midterms. It doesn’t change with Biden winning in 2024. It changes when we fix a mal-abortion Senate. We massively rethink lifetime tenure and nine justices, the electoral college, the electoral count act like all of the markers of. Constricting the vote and constricting democracy, which the court is playing a part in enshrining. And so I want to say, if it sounds like I am saying or that the book is saying like win lawsuits or win an election or register voters and we’re good. I think that’s the beginning of the solution. [laugh] And I want to be super clear. There’s a reason the last three chapters of the book are about voting rights and gerrymandering. And it’s that like, we would have to really seriously do all the obscure, boring work of massive democracy reform. So it begins maybe with getting out from under the shadow of Alito’s world. But it really does require and this is why I come back to Pauli Murray, who I talk about in the beginning of the book. It really does require understanding that for many, if not most people, this the vote was always ephemeral. The right to abortion was always ephemeral. The right to health care was always ephemeral, right. Equality, dignity, all the stuff that we thought everybody got was always a paper, right, that a lot of white people got. And so I think that unless we’re really brutally honest, I think I quote Carol Anderson in the book saying, like, if you are for the first time in your life standing in line for seven hours to vote, like welcome to voting like a Black person in Georgia, I think that really, really what I’m calling for slightly is to have a much more capacious view of democracy reform then just, you know, get out the vote for the midterms.

 

Brian Beutler: Yeah, this is why I I’ve been ever since the Dobbs oral argument was like the the this they’re going to get rid of Roe v. Wade and then the only way to kind of get it back in any kind of timely fashion will be for Democrats to, like, nationalize codifying Roe as the galvanizing issue for the election. Right. Like we’ll just need more senators in the House and we’ll well, we’ll pass a bill. And I mean, I know that like that falls right back into the trap of our own democratic system in the court. Can just throw that law out, too, and all that, all the rest. But I think, A, you know. I think we’ve seen that nationalizing abortion as an issue and like just to record a fire row would be extremely galvanizing, like enough to to maybe let Dems hold onto their majorities and then they would have to do the institutional reform thing. You know, they would have to change the filibuster rules in order to codify Roe and see how it played out. Like, maybe, maybe it gets thrown back in their face, but like at least they’d have like a they’d get the taste of, of what it would require to fix things more generally. And if the court threw it back in their face, they’d have the impetus to say, okay, enough. Like, we can’t play by the old rules anymore. And it’s time to, like, completely overhaul them. We can’t throw the bums out, but we can outnumber them. And, like, that’s obviously not like the likeliest way things turn out, but it’s totally plausible. I mean, it is by the book, by the rules. It just requires like an election to go well, an election to be smartly run. And then for the for the people who make the promises to follow through with them. And like, maybe we could be off to the races sooner, then it feels like we’re going to be.

 

Dahlia Lithwick: And maybe this is where I come back to women, because I think in the days after Dobbs, you know, there was one response which was, wow, this is really going to get out the vote. Like, women are going to be pissed. And that was a not great answer. And then there was a really cool answer, which is like, holy hell, look what just happened in Kansas, and look what just happened in Michigan. Look what happens when everybody in the country is watching women in Louisiana and Alabama who are like forced to bleed out on the table before there can be an intervention for a miscarriage. And I think one of the things that was like very visible and very visceral to women after Dobbs was not like, oh, you know, the court for the first time in 50 years, like used its power to take away a right rather than, you know, to grant one. Like, that’s not the point. The point is, like every single one of us who’s ever had a miscarriage or a DNC, every single one of us who has a kid is going to college. Every single one of us who, you know, know what it’s knows what it’s like to have a non-viable pregnancy that you have to carry for a long time because the state won’t say you’re dying yet. That’s a lot of people. And it’s in our bones. And maybe it goes back to where I started about, you know, beer and Homer Simpson, which is I think that it is a powerful and I would say untested thing to tell a bunch of women, oh, that DNC that you had that could result in you being investigated. Oh, that methotrexate that you need for your arthritis control for 14 year old girl or a ten year old girl, you can’t get that because your pharmacist says it causes abortion. I don’t think we’ve begun to understand what it is like for generations of women post Roe who thought the law existed to make them equal and fully autonomous human beings, to think they might have to go to jail for fetal endangerment. And so my hope is that isn’t just like, oh, this is going to get out the vote as though that’s a transactional thing, but this is what it’s like. And that’s why what’s going on in Iran is so resonant. I think for American women. This is what it’s like when the law is coming after you. And I don’t think we’ve experienced that in our lifetimes.

 

Brian Beutler: Yeah. And it’s my hope, too. Dahlia, thank you so much for spending all this time with us. You remain undefeated on Brian Beutler hosted podcasts.

 

Dahlia Lithwick: Oh my god, undefeated! Drops mic, here for the win. [laughter] [music break]

 

Brian Beutler: I hope that in addition to being a little bit bleak, this conversation helped give you some sense of what might be coming down the pike from the Supreme Court. Dahlia writes about the stuff over at Slate and even hosts her own Supreme Court focused podcast there called Amicus. So if you want a more granular play by play, you know where to find her. I also hope it helped illustrate why we do this show. To me, the most illuminating part of the conversation was when we talked about how hard it is for people in the legal elite to come to terms with what has happened to their vocation. The right wing take over the court, the slippage of rule of law into this partisan tool to benefit one political faction. The premise of Positively Dreadful is that coming to terms in that way, even when it’s hard, even when it flies in the face of your preconceived notions, is the first critical step toward getting a handle on a problem and ultimately, hopefully solving it. Once you open your mind to the plain truth that one of our two political parties waged a decades long campaign, replete with flagrant rule breaking to corrupt the judiciary and has succeeded. Then the steps that must be taken to restore the court’s legitimacy, or at least end and reverse its mounting injustices, becomes clear. [music break] Positively Dreadful is a Crooked Media production. Our executive producer is Michael Martinez and our producer is Olivia Martinez. Veronica Simonetti mixes and edits the show each week. Our theme music is by Vasilis Fotopoulos.