With A Court This Right, What Could Go Wrong? | Crooked Media
Jon, Jon & Tommy's first ever book is here - Order Democracy or Else NOW! Jon, Jon & Tommy's first ever book is here - Order Democracy or Else NOW!
November 09, 2021
What A Day
With A Court This Right, What Could Go Wrong?

In This Episode

  • The U.S. ended a year and a half-long pandemic travel ban, reopening borders to vaccinated travelers from 33 countries. Yesterday was an emotional day as families around the world were finally able to reunite after being apart.
  • We take a step back and discuss the Supreme Court during the middle of its term. Jay Willis, who runs the legal site Balls and Strikes, breaks down how these justices are leaning on certain issues and what we might expect from them on important cases coming up.
  • And in headlines: the Justice Department seized approximately $6 million in ransomware payments, Nicaragua’s President Daniel Ortega is on track to win a fourth consecutive term in office, and the House committee investigating the January 6th riot issued new subpoenas for six of Trump’s close allies.

 

Show Notes

 

 

Transcript

 

Priyanka Aribindi: It’s Tuesday, November 9th. I’m Priyanka Aribindi.

 

Josie Duffy Rice: And I’m Josie Duffy Rice, and this is What A Day, where we are begging Snuffleupagus to join his friend Big Bird and get vaccinated. 

 

Priyanka Aribindi: Yeah, everybody else on that street’s done it, Snuffy. What’s the holdup here? 

 

Josie Duffy Rice: I feel like Snuffy is maybe not five yet. He’s been four for two million years. 

 

Priyanka Aribindi: Since the ’70s, I guess. 

 

Josie Duffy Rice: On today’s show, we do a midterm check in on the Supreme Court. Plus several countries, like the U.S., are calling Nicaragua’s latest presidential election undemocratic. 

 

Priyanka Aribindi: But first, the U.S. ended a year and a half-long a pandemic travel ban yesterday, reopening borders to vaccinated travelers from 33 different countries. The ban included people from the U.K., much of Europe, China, Brazil, South Africa and more. And it kept most non-U.S. citizens out of the country. 

 

Josie Duffy Rice: I’m so excited about this. The pictures are amazing. Another sign that hopefully we’re getting back to normal. So what do people need to do now to get into the U.S.?

 

Priyanka Aribindi: So visitors are now able to fly or drive into the U.S. with proof of vaccination from the list of eight vaccines that are approved by the World Health Organization, plus a recent negative COVID test. But there are some exceptions for underage travelers and people from countries with low vaccine availability. This resulted in, as you were saying, a really emotional day as families around the world were finally able to reunite after being apart for nearly two years. There is lots of reporting of tears and balloons and just happy reunions at airports around the country. It’s really heartwarming. Highly recommend looking at the pictures and checking it out. 

 

Josie Duffy Rice: Same. It’s an easy way to make your day better seeing people reunited. 

 

Priyanka Aribindi: So U.S. land borders also reopen for non-essential travel yesterday so leading to even more reunions at the Mexican and Canadian borders. Just a good day all around. 

 

Josie Duffy Rice: Truly, such a great day. So I’m interested because vaccines have been around for a while in many of these places. So why did this take so long? 

 

Priyanka Aribindi: That really is a good question. So countries have been lobbying the Biden administration to ease up on this ban for a while now. European countries relaxed rules for international visitors, including those from the U.S., this past spring. If you are on Instagram, how could you forget? You saw it everywhere. This ban was put into place by Trump last year, and Biden expanded it earlier this year. But now that it’s going away, it seems to be giving a boost to airlines and other travel industry companies. Just, you know, good all around. 

 

Josie Duffy Rice: Yeah, I know there are a few other COVID updates as well to share. So what else is going on? 

 

Priyanka Aribindi: Yeah. So in L.A., people ages 12 and up will now be asked to show their proof of vaccination at indoor areas, including restaurants, bars, gyms, movie theaters, concert venues—basically everything you want to do inside. It’s one of the country’s strictest vaccine mandates and went into effect yesterday, though the area does have pretty high vaccination rates already, with 72% of residents 12 and up fully vaxxed. 

 

Josie Duffy Rice: That’s a pretty serious rule, at least where I’m from in Georgia. So are there any exceptions? 

 

Priyanka Aribindi: Yeah. So there are exceptions for people who say they have a medical or religious reason for not getting vaccinated. Those people can show a negative COVID test from the previous 72 hours to get into an indoor space. I will say I was in New York, and this is pretty similar to the policy that’s been in place for a while there. And just from my perspective, the peace of mind you get kind of being able to socialize a little more freely in a place where you’re like, oh, right, everyone showed this at the door. It’s just like an extra layer of, you know, letting yourself feel good and comfortable being out and about and living a more normal life. So I’m for it. 

 

Josie Duffy Rice: Yeah, I am in Georgia where there are very few rules, and I think it’s great to see places take this seriously and make it easier for people inside. So speaking of vaccine requirements, the White House announced last week a broad vaccine mandate for most employers in the country but it’s running into some issues. Is that right? 

 

Priyanka Aribindi: Yeah. So on Friday, a federal appeals court temporarily froze Biden’s vaccine mandate. That is one for private employers with more than 100 employees. It says that they must require masks and testing for unvaccinated employees starting December 4th, and mandate vaccines or weekly testing by January 4th. But the White House is saying that private employers should still abide by the mandate while the legal matters are sorted out. But that is kind of the latest round up on some COVID news that’s been going on. 

 

Josie Duffy Rice: Great. So that’s mostly pretty good news, and it’s always good to feel like we’re moving back to normal. So thank you, Priyanka. 

 

Priyanka Aribindi: Definitely. 

 

Josie Duffy Rice: Now we’re going to turn to the Supreme Court. It’s in the middle of its term, but so many important issues have already been heard by the justices, and they’ll be hearing even more of them in the coming months. 

 

Priyanka Aribindi: Right. So they’ve heard arguments regarding things like Texas’s restrictive anti-abortion law, the case against a gun control law in New York, and more. So what is on the docket this week? 

 

Josie Duffy Rice: One case actually dates back to 911. Three men from California, all Muslim, accused the FBI of religious discrimination and of illegally conducting surveillance on them after the 911 attacks. The court is deciding whether or not this case can move forward. The FBI says that being sued could reveal state secrets. I have to say Priyanka, that’s a great excuse for not wanting to be sued. If you sue me, it will reveal state secrets. Let this be a notice to everybody. We’ll be watching that and more. But Priyanka, I wanted to take a step back and get a better view of this very, very conservative court so listeners know how these justices are leaning on certain issues and what we might expect from them on a couple of really important cases coming up. So yesterday I talked with my good friend and classmate from my One L year of law school, Jay Willis. He runs the legal site, Balls and Strikes, and he’s a really good guide on what to make of the court. So I started by asking him takeaways of the justices so far based on the cases that they’ve heard this term. 

 

Jay Willis: I actually think some of the biggest hints about this particular court and where it’s going are coming from outside the courtroom. So you’ve seen some of the conservative justices lately going on a little PR tour on behalf of this 6 to 3 conservative supermajority. You had Justice Samuel Alito lashing out at the media in a speech recently for portraying the court, and I’m quoting here, “as captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.” Which is just like objectively true but we’ll set that aside, for now. Yeah, all of this is just a little like “doth protest too much” right? I think the justices understand that a 6 to 3 conservative court is inevitably going to do some things that most Americans don’t want, that people find really alarming, and that actively hurt people. And it feels like they’re trying to get out in front of that criticism a little bit. 

 

Josie Duffy Rice: Yeah, I think related to this, you have been critical of legal journalism and how the field has kind of traditionally covered the Supreme Court. What are the problems you have seen traditionally with Supreme Court coverage and how do you try to approach the Supreme Court differently at Balls and Strikes? 

 

Jay Willis: So you’ve got to consider the unique place we’re at in the Supreme Court’s history right now. This is the most conservative, reactionary court since the Great Depression, back when things like: is fifth grade too young to work in a coal mine? and, is it OK for the state to forcibly sterilize—I’ll quote again—”feeble minded people”? back when those were like open legal questions. The median vote on this court is probably Brett Kavanaugh, which if you recall him like shout’ely going on about revenge on behalf of the Clintons a couple of years ago does not seem like a great outcome if you’re interested in how the law is going to help advance progressive politics and progressive causes. But you see media and the legal establishment still talk about the court as moderates, sort of straining to find moderation, rewarding conservatives for doing like anything less than the most extreme rightwing outcome imaginable. 

 

Josie Duffy Rice: Right. 

 

Jay Willis: This past term, there was a whole slew of articles applauding the court for not overturning the election, which like, I’m sorry, the bar is at the center of the Earth’s core if that’s what we’re rewarding these days. My perspective is that the legal coverage needs to center the law’s real world impact, and the people who are most affected by what the justices actually do. 

 

Josie Duffy Rice: There seems to be a lot of hand-wringing around legitimacy when it comes to the court. So Justice Alito recently I talked to Atlantic writer Adam Serwer for daring to insinuate the justices are driven by political values. As you pointed out, this has been kind of a constant fretting from the court, worried about being seen as political. Do you think it’s true that the court has lost legitimacy with the average American populace, and if you do think it true, is not necessarily a bad thing? 

 

Jay Willis: I mean, just this past summer, right, they decided a major voting rights case in Arizona that is going to make it much easier for Republican lawmakers in Arizona and across the country to suppress the vote, especially among communities of color. If you’re a Native person in Arizona and you’ve been living your whole life dealing with the constant campaign of voter suppression by Republican lawmakers in your state, is a court that upholds that campaign legitimate? The dip you’re seeing in the court’s approval numbers right now is part of a broad realization of what members of marginalized communities have long understood: the court and the legal system, they protect existing racial, economic power hierarchies. They preserve wealth. Their job is to keep power where it is right now. An outcome is not legitimate just because, again, someone who wears a robe to work declares that the law compels it.

 

Josie Duffy Rice: Related to kind of this conversation about where the court is and what it should look like, there’s been a lot of talk about court expansion, and it’s been framed, I think, by the right as this like wild left-wing crazy idea, you know, a sign of how off the rails the left is. Is this an idea that you support, and similarly, what you think about term limits for Supreme Court justices? 

 

Jay Willis: Yeah, I mean, first of all, I’ll point out sort of what you’re alluding to, which is expanding the Supreme Court is just objectively not radical. It’s happened like a half dozen times in history. It can be done by simple statute. There’s no constitutional amendment. There’s nothing like that. The idea that this is some sort of like wild left-wing plot is basically just ripped straight from like a Tucker Carlson monologue. But it’s just objectively not true. But to the substance of that look, term limits are a great idea, but they’re not sufficient because they don’t address the immediate crisis posed by the existence of this conservative super majority. And the only way you fix that is by expanding the court. If you support term limits without supporting court expansion, it’s like talking about wanting to put a fancy new sprinkler system in your new house while you watch your current house burn to the ground. You’ve got to start with court expansion and then do everything else. 

 

Josie Duffy Rice: So many important cases are in front of the court, right? So the future of Roe v. Wade, gun rights—there’s so much happening. What cases should our listeners be aware of, and what do you think that they should focus on, especially people maybe who don’t have a background in law and don’t follow this kind of obsessively? 

 

Jay Willis: Well, the biggest issue before the court, as you mentioned, is abortion. This term, the court is not only going to deal with this deranged Texas anti-choice bill, but it’s also dealing with a separate lawsuit, a challenge to the state of Mississippi’s 15-week abortion ban. In that case, the justices will have the chance to actually formally overturn Roe v. Wade, which currently protects the right to an abortion. One, you’ve got to remember that the conservative justices have spent their entire careers steeped in a conservative legal movement centered around ending the right to bodily autonomy. Going after Roe v. Wade is the right-wing’s white whale. And the fact that they finally have a chance to do that, I think you have to keep in mind where this fits in their culture war. And then I also want to talk about a handful of cases that the justices could use to limit the Biden administration’s effort to issue any kind of regulations, like through the EPA, that reduce greenhouse gas emissions and fight climate change. What’s potentially at stake in these cases is not just climate change regulation, it’s the executive branch’s ability to do anything through administrative agencies. There’s sort of a worst-case scenario here that would require Congress to be super explicit going forward about what exactly agencies can and can’t do, which like in an era when Congress can’t agree to name a post office, that basically just stops policymaking in its tracks and could give the court veto power over efforts to meaningfully stop climate change. And I think what you have to keep in mind is the court’s role in the broader policymaking process. As long as we’re stuck in a number of nine justices where six of them are these conservatives, all of this is going to get way worse before it gets better any time soon. 

 

Josie Duffy Rice: Priyanka, that was my conversation with Jay Willis, he’s the Editor in Chief of the site Balls and Strikes. It’s a great site for court watchers and also for regular folks who don’t know that much about the court. So please check it out. 

 

Priyanka Aribindi: That’s me. 

 

Josie Duffy Rice: That’s most people. So it’s a great site for everybody. I would also recommend checking out Jay’s bracket from earlier this year. He did a “worst Supreme Court justice of all time” bracket, and it is hilarious and amazing. If you google his name Jay Wallace and worst Supreme Court justice for all time, you will find it and we will link to it in our show notes as well. That’s the latest for now, and we’ll be back after some ads. 

 

[ad break] 

 

Priyanka Aribindi: Let’s wrap up with some headlines. 

 

[sung] Headlines. 

 

Priyanka Aribindi: The nation’s computers breathed a sigh of relief yesterday after the Justice Department seized approximately $6 million in ransomware payments. Law enforcement officials also charged two men who were allegedly part of REvil, the appropriately named ransomware gang responsible for the cyber attacks last summer. One of the men charged is a Ukrainian national arrested last month in Poland, who allegedly participated in the hack of the software firm Kaseya on July 4th, which affected up to 1,500 companies. The other man is a Russian national and still remains at large. As a freelance cyber detective myself, my hunch is that he’s hiding somewhere inside the mainframe. That is the only thing I know, the only computer words I know. Don’t ask me any other questions. This operation is a huge win for the Biden administration’s fight against ransomware, which accelerated after a series of hacks obstructed critical infrastructure such as meatpacking plants and the Colonial Pipeline. 

 

Josie Duffy Rice: Nicaragua’s president Daniel Ortega, and the vice president, his wife, are on track to win a fourth consecutive term in office after Sunday’s election, which many in the international community called undemocratic. Ortega faced just five challengers from parties allied with his own after a series of arrests before the election that sent seven other candidates and more than 150 other people to jail. Always interesting when you send your opponents to jail. All 27 members of the European Union issued a joint statement to accuse Ortega of quote, “systematic incarceration, harassment and intimidation of opponents, journalists, and activists.” Secretary of State Antony Blinken said the U.S. was poised to issue sanctions, visa restrictions, and more. And he also called for the immediate and unconditional release of the opposition candidates. Ortega has been in power since 2007. In the past several years, more than 100,000 Nicaraguans have fled the country, with U.S. authorities stopping tens of thousands of them from trying to enter America through the southwestern border. 

 

Priyanka Aribindi: Wow, this sounds awful, and I had no idea that this man and his wife were such a terrible power couple. 

 

Josie Duffy Rice: Making your wife your vice president, it really gives away the punchline of your dictatorship, so it’s a rough move. 

 

Priyanka Aribindi: The bold group of time travelers who are journeying into the past so we can understand our future, the House Committee investigating the January 6th riot made moves yesterday. They issued new subpoenas for six of Trump’s close allies, all of whom sought to use false claims of voter fraud to keep the former president in power. Those subpoenaed include Trump’s former national security adviser, Michael Flynn, his campaign manager Bill Stepien, and his lawyer, John Eastman, who wrote a memo explaining how Trump could mobilize Congress and Mike Pence to disqualify Biden’s win. The House committee’s interest in this group points to a new phase of their investigation, focused on how Trump and his associates effort to quote, “Stop the Steal” led to the Capitol riot. The committee has now issued 25 subpoenas total. The lucky recipients are required to hand over documents and sit for depositions in early December. 

 

Josie Duffy Rice: There’s a new higher education project from the people who make hundreds of thousands of dollars by speaking but also are silenced. Ex-New York Times columnist Bari Weiss announced the founding of the University of Austin yesterday, a school that will reject the quote, “illiberalism” of contemporary college campuses and pursue truth without censorship. I’d like to just repeat: these people are not censored. In other words, this will be a college where students can major in playing devil’s advocate. Its founding members include Kathleen Stock, who resigned from the University of Sussex amid accusations of transphobia. Andrew Sullivan, who has a long history of lightly endorsing eugenics. And Ayaan Hirsi Ali, who called Islam quote, “a nihilistic cult of death.” The school is already mounting its fundraising operation, so if you’re a billionaire and you’re concerned about free speech, you can donate $100 million to the University of Austin to establish your own undergraduate college, maybe called the “Your Name Here” school of just asking questions. For now, the school is unaccredited and won’t accept undergrads until 2024. Its first classes will launch next summer and are called—and I’m not kidding—quote, “The Forbidden Courses”. They’ll offer quote, “spirited discussions about the most provocative questions that often lead to censorship or self-censorship in many universities.” The people behind the University of Austin, are fierce defenders of free speech for educators but oddly enough, they said nothing in their announcement about the huge conservative effort to make it impossible to talk about race in schools.  

 

Priyanka Aribindi: Wow. I wonder why that is.

 

Josie Duffy Rice: Yeah, it’s very strange how that happened. You know, there’s only one thing that’s been made illegal lately and that’s talking about race in certain states, but they didn’t mention that. I have to say that if this school does not confer degrees or take undergraduates and isn’t accredited, does that mean I can also start my own college? 

 

Priyanka Aribindi: Hell yeah. Hell yeah, it does. 

 

Josie Duffy Rice: I am feeling pretty good about this, honestly. 

 

Priyanka Aribindi: And those are the headlines. One more thing before we go: on the latest episode of Hysteria, Alyssa and Crooked Media’s Senior Political Director Shaniqua McClendon unpack last week’s election results. Oh boy! 

 

Josie Duffy Rice: Yikes. Plus, Alyssa speaks candidly with Monica Lewinsky about her experience creating American Crime Story: Impeachment, her recent documentary, “15 Minutes of Shame” and that time she ran into Ken Starr on Christmas Eve. That poor woman, the last thing she needed is to see Ken Starr on Christmas Eve. Totally unfair. New episodes of Hysteria drop every Thursday. Listen and follow wherever you get your podcasts. 

 

Priyanka Aribindi: That is all for today. If you like the show, make sure you subscribe, leave a review, check the mainframe, and tell your friends to listen. 

 

Josie Duffy Rice: And if you aren’t reading, and not just the constant stream of publications from intellectuals who are silenced, like me, What A Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/subscribe. I’m Josie Duffy Rice.

 

Priyanka Aribindi: I’m Priyanka Aribindi. 

 

[together] And follow a vaccine mandates for Sesame Street! 

 

Priyanka Aribindi: Yeah, why Snuffleupagus? Come on. 

 

Josie Duffy Rice: He’s going to do it. 

 

Priyanka Aribindi: We have Oscar the Grouch. Elmo, I don’t know who else. Josie, this is your beat. 

 

Josie Duffy Rice: It’s true. I know what’s up on Sesame Street.  

 

Priyanka Aribindi: Why am I rattling off names? You know all these.

 

Josie Duffy Rice: A ton of new characters, a ton is happening. There is a lot happening. 

 

Gideon Resnick: What A Day is a production of Crooked Media. It’s recorded and mixed by Bill Lance. Jazzi Marine is our associate producer. Our head writer is Jon Millstein, and our executive producers are Leo Duran and myself. Our theme music is by Colin Gilliard and Kashaka.