Transcripts For CSPAN2 Stephen 20240704

And in austin texas. Great. Its very good to see you. [laughter] twenty minutes of silence is about right. Are you sure you dont want to talk about that . [cheering] it is terrific and is in this moment where theres so much on our a minds and it is in the context. Lets begin. Youts immediately to find the things. So we are familiar with multiple rounds with the clean water and what we tend to view as the Supreme Court. This is a term in 2015 described everything that the Supreme Court does. I dont think we would all be here on a thursday night if they were upset but one of the insights built upon if not exploited and it is and more and more important stuff. And pay more attention to what happens in this an accessible ruling. The coining of the term i went that and read the paper you wrote which you coined the term to talk about. What i was clear on as a result of talk about twowo things. On one hand, order. They transmitted diesel and this is the thinking and opinions and all that. Some are reversal and its become part of the court and that is complicated. The shortest way ofs describing it even though we spent our time talk about this, it is unusual to resolve a twopage decision so we get reversal of course are. In 2016 but thereth orders heren texas. Anan unsigned unexplained order late at night september 1, 2021 the cleared the way for the six week abortion ban. B it was kept in place and part of the medication abortion. They can come in different shapes and sizes. The criticalk thing book tries o do is they are the bulk of what the Supreme Court does. Increasingly there is stuff happening in those orders in ways we had not filled. There reading the news, we would not know we are talking about 1 but we have seen 1 , the visible part of the iceberg. It was so immersed so i should have put that in the book. [laughter] that is exactly the metaphor, the book tried to do two things. The stuffbe below the surface, lets spend some time developing that and i said by the way, once we look at whats happening, we see a lot. Seek emergency relief that comes through the door of the shadow. This is really the point. It is subject to confrontation. Think about the flow him a typical lawsuit for and against the Supreme Court has gone through litigation and lower state courts and whatever and the Supreme Court is on the same legal cost. Emergency relief is counter to that. Thats where we talk about this emerged, not because we talk about emergencies but they are judicial emergencies from the perspective of short circuit in the process and it is extraordinary because of the implications of letting this in the lawsuit ruling. In this book you lay out this subject matter where it strictly supports. Want to ask you about capital as it relates to capital punishment. I think it is independent so in a state like texas, they are case for emergency relief. You have a person on death row have review his or her challenges for the method of secretion and is not going to be enough time to provide ordinary process so historically, it turns out it is the Supreme Court penalty. So in the old days if you have these applications go to the circuit. The personality is the job to have the prosecution for the whole court. What that meant in the old days was will and sometimes it was order and the opinion that meant there was a lot where the parties had opportunity where there was some rationale or decision and when there was a ruling by a single justice and that is the model and the Death Penalty and the court confirmed about that case that pushes the court starting in 1980 start coming emergency applications resolved b by the full court but because it is a full Court Without full a argument and without opinion, that happened in the early 1980s. The 80s, 90s and 2000 and it was the duck docket. It pushed the court to take two steps and would focus on the future numbers because it is unique and one thing that happened is the court start taking a penalties specific approach and appliest it to obamasn clean carpet, trump immigration policy, mitigation numbers and redistricting. Now these procedural problems become saturated because they are applied much broader. They are in the dark for decided and public defense. She lost her leave after that decision and she would oppose thatat decision but largely this is the decision. And its more consistent. Aboutio one of her objections but she was going after the procedurals. What she was reacting to was september 2020 were at the end ofpe the tenement. Where the court was more aggressive and active intervening to reverse the altercation to walk all wrong for the court was typing in to block mitigation members new york and california you might notice in those cases oftentimes in russiale over procedural isss i should say hold your fire Supreme Court now it is a five four majority. All answer tied so he cant step in to protect. It isly inconsistencies. It is the partisan filling but the last thing about that Justice Kagan is a conservative but five before and one of the points to underscore the critiques strictly partisan the majority has been the conservative in his defense are always saying the same thing. I have not changed my stripes so he sees the courts legitimacy and it is impacted negatively. The application mechanism isd away they are supposed to be done with full deliberation. It seems to be number of ways in which they have decided to the shadow pocket. One thing i knew when you said it but a lot of this is trump era, i know you say in 19804 its a pivotal moment. I started to Pay Attention to the topic in the summer of 2017 because it wasnt just Trump Administration versus obama administration, Trump Administration took an aggressive t approach to this nerdy procedural maneuver in thf Supreme Court of both parties so the george w. Bush and obama but the government goes to the court nearly eight times so once every other year and the decisions have been so in seven cases as though obvious partisan and its par for the course looking at the historical average. Trump course of the court 41 times four years and justices released in 28 of those cases that almost all of those part of chapter four i believe at the beginning the justices were not leading the charge off the charge is led by the Trump Justice Department but there are always opportunities not these applications in the kept saying sure. How much of this is discord . You cannot talk about the trump years without acknowledge during his presidency he appointed, and barrett. It is the composition of the court because of those four years. Not only in terms of outcome decisions but in the way the court operates. The new conservative majority is used to shift americans to the right so twopart, is that what is goinger on . They are open to the idea of this procedural use and therefore its the way it goes or am i missing something . We dont have the counter side of the argument, you have majority i think two Different Things arein true. The first is, i do think there is something specific not about judicial philosophy or the constitutional interpretation but these particular justices that meant the brakes came on when Brett Kavanaugh replaces kennedy, one of the big things that havent, they are not pendulum swinging so it can be more confident and then it marginalizes between 2018 and 2020 had been on the shadow docket with the more liberal justices but it is they are but part of it is the outside, its how remarkably defensively uncountable the Supreme Court its so we might not be as troubled or they might not be reminding us everyday but it wouldnt change the fact that it is in ways never seen before and they are not necessarily partisan. Okay but i want to push you on this. The makeup of the court in favor of the liberal justices doing the same thing but in ways you agree with. Is that a problem to write this book . How much as they are doing it with decisions that results from this . I would still like this book. [laughter] it would be published by press and would be for myself. Plenty of them are going to be the court by the director and thats perfectly fine. The book tries hard to show support and reach what ig thout was the wrong bottom line but through the right process in the moratorium. As another policy in the august 2021 the eviction moratorium, they wrote an opinion. There is transparency. Here is the belief of what they are asking for. I disagree with how the majority of the justices interpret the Public Health service but they did it right. We know why. Contract that with the navy seals Vaccine Mandate where they locked the covid Vaccine Mandate and did a circuit and the Supreme Court unfrozen it and put the mandate back into effect. I like that result, i think the military has the power about but there is an important legal question is issues limit religious liberty in the military. Even where religious liberty is. His from my perspective the wrong process. Why did they show their work . What is stopping them . Justice alito would say and has publicly said it not a choice because we are writing against the deadline and you buy that . I was about to get there. [laughter] that iss true a nonzero case but. To examples but i would go into effect with capital cases we are going to go at 601. In these other cases. There is none plus they have the ability and the issue what is called administrator but the temporary to give them time so its not that they cant write or dont have what it takes to apply but the court not of the view that is under obligation to you buts its about the can thy know but the decision is released back transparency but you could make it look like regarding your intentions but they are doing it that way but they dont seem to care at all. They dont seem to act that way all. The question is which day we are talking about. Who is the billing . Who is this possible . You know you have an answer but who is the billing, who is responsible . The real villain, it is congress that has taken its hands off the first 100 years pulling these levers and Congress Held the court and dont bother coming in. I was heldss the court and they decide construction. No, go home. Congress give every federal judge a payre raise but its lie a tiny a race because they were met at the so there are levers pulled historically to shoot the court into these problematic procedural holds. It is in the shadow pocket. Justice alito had an accurate summary of the shadow docket. Its going to be an outlier in texas and they precipitate this but the problem is all the shadow docket but its when the decisions are inconsistent, you get the problem of the principal mechanism by which it persuades supposed to politically. Historically the court said our ability to provide principal and we dont expect you to agree with our principles, we expect you to agree that they are. When the court provides principal and explained why there are losing because they are red state and democratic president. Thats the problem. And why it is here and longer. I want to move the conversation off of this and i want to talk about the book but i want to talk about something not really inn the book there is excellent reporting on the conflict they identified and i would say alleged but theres not a dispute by the billionaire, what did you think about the reported, what did you makete of it as it relates to te court. Let me start small. It is the object of the book and why isnt the Supreme Court on the Washington Post and wife did it classically mainstream and that is the broader deep of the function of the docket. And white house reporters. The failure of investigativea work. I think it is a reflection on the broader problem and how we talk about the court and it starts with people on the front line talking about the course of the public and one who is part of the list so you write about the court so that is a great piece about this about why we are the court. I wrote about justice in 1969 and it resigned and its remotely inaccurate. And what happened in this case so one part of the money they got in trouble for, he already paid e back and girl warren went and said you have to resign and if you dont, congress will go after you, that was 1959 in a very political moment. The other place where current ethics with what im trying to do in the book, it is the same perspective of having any responsibly and john roberts invested because the of the Judiciary Committee and jesus actually, it was separation of powers concern and interfere with independent involuntarily come to testify. Hes not making it up, he genuinely believed that because we live in an era the kind of congressional involvement in the court that characterized 175 years doesnt exist anymore it is profound so the notion that they couldnt is the obstacle is not it is current policy. You said you wrote on twitter independent does notot mean uncomfortable. This is about accountability and whether Justice Roberts is not appearing voluntarily or harlan crow telling durbin through his lawyer to take a long walk off appear, im not going to provide name of the public what they are are aware of whats going on. This is going to be accountability and the work of the court. What really struck me about the letter and it is congress with no legitimate purpose in investigating anything they may or may not have given justice thomas. Congress is expressed power to impeach Supreme Court justices. Maybe we dont have the story, the revelation in the public reporting to rise they lacked the authority to decide the question to investigate whether they have engaged in impeachable conduct is both refined to me but also the administration of the moment we are in. [laughter] where they have made the decision for impeachment, there was a mechanism on the other side regardless how it came out called an election and these are lifetime appointees. There is no mechanism to weigh in at election time in this goes back, i should have worn my profession not looking that way. [laughter] my tweets are not confused. [laughter]i i am speaking as an individual so again, i think it is lost, we broke from the british the created independent judiciary and these are critically important part but as hamilton writes, the court is supposed to but doesnt have force for will, only judgment and depends upon Popular Support and it is this argument that it is somehow the legitimate for the Popular Support to exercise and critical of him support so to the balance. I hope you would acknowledge controversy piece because thomas is the least accountable article in a conundrum for anybody watching because hes done everything he can to exempt himself. I would just say you can show problematicg misreporting but te multimillion dollar support and its problematic regardless if the author is a book from one to throw out the window so ive identified as progressive for trying to tell a story specific to using power and whos not. Never thought you think about this before the court and the 57 cases, that is crazy though and will be the fourth turn in a row and im fine with this court but not decided and they decided in different places so why has that happened . No one is telling which ones to take but the court had no discretion even though there was only a little discretion. Congress needs to tell the court and that was part of the story how they pushed against each other. You identify yourself on social media and the person who claimed this phrase was certain which i get in trouble for because people say on taking advantage. To be this is not about left or right, its about transparency and accountability. The town for People Like Us and what the book tries to surmount is to tell a story why everyone should be followed about these even if you are more favorable emerging from the haters. We will go to questions no. Take one here in the front and then go to the back. You mentioned the revolution, and curious of the compelling example you make about just as barretts first term on the child docket and of g curious te media has advocated and where they fit in all this. Its something something [laughter] the short term, i think the media in mind, they have to cover the court and part of the problem is the condition access they identify folks who are physically in the press corps and the way it comes out is narrowly subscribed and its not one projection and they have this remarkably we will tell you when we feel like it approach so the court is more part of the story because the court itself demands to comply and the journalists, thepe court and dey access. Part of this is the court itself is not used to being treated like the others because of the court and the more we come to appreciate the more the court has to act like this. The Court Finally reopened to the public in but good news, was. The things that are supposed to exchangege in the court. Things that matter in the audio. And how did that take place . And they have this impact and they are more paranoid so it has complicated it. Thank you so much for this. My question relates to congressional oversight. What is the likelihood the Supreme Court legislation . If it was legislative, they comments all the time so for example, one way congress exerted power in the 19th century, they bitterly had to go on the c road. They to those and where the legislation is but the Court Strikes down legislation and they are moree accountable. Either result, either outcome. I would think theth argumenti wonder speak to the understanding that they ought to not that yet there is this long history of those who have been governor, i was wondering if you could speak to this months understanding about what it means. I tell the story, i have a longer version, it is the running mate in the team 44 lay forward in april of 1945 only because of the missouri guide anyway. They were consulted on the court but the real reason why, the was thel process advisory of the day so i think we have this notion that they are not clinical actors but political and then there is there is the action that we have blurred a lot in recent years because the court itself there in the party that appointed the president and his line of the court you have consumed democrats and since the house consequences, they responded to an they just lean to the. When he does give us direction, the institution agrees that should be preserved. Roberts gives that speech to the American Law Institute but the dirty group of lawyers and they are going to Mitch Mcconnell complaining about being partisan. [laughter]th the other was enemy. The lotus position of the court, we know every four years ait candidate either by winkingr saying out loud that its about the court. They have a justice who has this x number and im going to fill that seat. Has recently as 100 years ago they fill the seat with the person brothers from the party the senate but appointed by eisenhower,ei eisenhower wanted this support with the catholic so that is a shift in behavior that they have contemporary politics they have not responded. I hope one is about to expand. [laughter] ill do a spin on your question as it relates to the. If we have more than nine of the Supreme Court, the shadow of the shadows docket would be darker or lighter . Ihi think the short version s with more justices will come more possibilities and the procedural method and more justices you have the more random combinations but to answer the question, i have been against extending the court for two reasons, the first is very real politics. They added to the Court Republicans were in charge of the democrats would have 17 so 20 years from now we have this and if you want to destroy the court, great. I dont. Praise the court so the other problem though again and this is consistent with the last however the problem is not the justices are, its how unaccountable they are and the justices we might like but it doesnt make them more accountable so we fall in two track they can be on the bottomom line so we got here in part because of breaking down. Would you be open to shift . Th way to go, buzz kill your im just playing around here in a world in which you can get something through a twothirds of both chambers of congress and threefourths of the states todo reform the Supreme Court appeared so yes, but again like that would be fairly down my list of reformst spirit we dont need a constitutional amendment to restore a much healthier, much more accountable dynamic between congress and the court we need to congress that thinks part of its job is institutional, not just partisan. My friend right there. I do have a brief supreme related question, but first, i understand youve been on the road for a long time here you are finally home, and maybe its time for just small comment of frivolity in that vein. So yeah, i see that and i want to make sure youre coming back, right, to texas . Know, the nfl. Thats up to him. We want to hearre about that. Your comment . You know evan is an enormous gait defense but i do. And hes an enormous mets fan. I just want to make sure you knew. Katz and dogs. He grew up in queens and i grew up in manhattan where totally counter predicted. Anyway, to the Supreme Court, do you fight it, this gets a little off beyond your book a little bit do you find it ironic and ironic maybe to soft or weak term that the Supreme Court now is in taking part administered state, is in one sense in the simplest terms saying congress does not provide enough guidance to the executive. And here you have the Supreme Court, really the heart of your objection, to the shallow docket, is that it doesnt provide guidance. I mean, there is a contradiction. I dont think theres a contradiction i think its the opposite side of the same coin, which is the court has claimed power in the context of the substantive law if youre talking about in the context of administrative regulation by suggesting congress has to speak more clearly and so the court has said over and over again like if its a question of vast political or economic significancess this is a major question doctrine. Congress has to express the authoress of the program or if its not authorized. Might see that coming soon in the student loan case. Thats a similar move to me to the court saying hey congress, you havent done these things, you cant do these things. As what were what we space where itses against the subtitle of the book of the Supreme Court is amassing power for but it is messing power in both directions. And its capitalizing on what the justices know to be true, which is that our current Political Landscape is one which there is no appetite for Institutional Reforms either on the substance, either for example, restore r te epas authority the Supreme Court particularly today, or to restore the sort of legislative control over the court we saw. I see those as deeply consistent, not inconsistent. I think we have time for one more. Over there. So who do you think delete dobbs . Do you think it effective . Do think it affected what ultimately happened and why do you think chief Justice Roberts never followed up on his investigation, quoteunquote . I dont know who leaked dobbs. My theory has always been, it was a secondgeneration leak, was that, that a Justice Alito the graph to a friend, not expecting it to become public and then it was the friend who made the decision to sort of send it t out into the world tht i have no informed that you acknowledged the problem is not the friend sitting out in the world to the problem was the justice they can get to the french. But we know that thats happened before. That doesnt make it right. Agreed that it makes it less extreme unless acceptable. Will be dont talk enough about the dobbs leak is that week before the dobbs leak the wall street journal ran an editorial talking about how it was 54 in their efforts underway to try to intimidate the kavanaugh to sort of soften him. That seems very well sourced given what followed. D. Dixie, like he was talking to wall street journal picked it doesnt account for how four days after the topic theres a story in the Washington Post specific identifies quote lawyers close to the conservative justices reporting on what was said in conference, and dobbs. Conference where the only night people interim are the justices. So unless youer start to list ay dice in there, which by the way that would be pretty cool, right . So like the story of the dobbs leak to be is not just who leaked it but what we dont talk more about the clearlakes surrounding it that wouldve been on their own some of the most remarkable leaks out of the court in recent years. To question it chief Justice Roberts, sometimes you dont want to find out, and so i think there are two features of the course intro investigation. One is the chief was going to let the executive branch, investigate over his dead body, right . Was a universe which is going to invite the fbi to come investigate the internal workings of the court and the second is that its not hard to imagine a universe where if he had suspicions about where the leak came from especially if the suspicions are relatively higher in the organization chart, he might have been inclined to not push that hard, two of the suspicions verified. This goes back to, the book and actually a lot with the chief because i find roberts this fascinating s fascinating character in the story. Hes the most unpredictable in the weight of the current when it comes to the topic of the book. And his two things are true. One is like he does not have as much power as you might think you guys just because hes a chief. He isju not the boss of the othr eight justices. Something i think we might not ofn thought that between 2018 2020 where he was also immediate so he could do whatever he wanted down but two he has a bully pulpit that is used for and what i actually think one of the real question is why isnt he using it more right now, because i have no trouble believing that he sees a lot of whats happening now as serious problem for the court in the long term, whether thats because it would get in with his substantive agenda whether because his institutional views are actually altruistic. He could m say more. He could be more public, and, frankly, and this is not a suggestion, this is an observation. If he really thinks the court needs to be saved he can resign and let a democratic president with the Democratic Senate fill his seat. And so i think hes a complicated character because hes not doing those things, even as hes complaining about, rightly, these institutional erosions. I want to ask you as we leave here, do you agree with the premise on roberts that the person who leaked it is higher in the org chart . Because remember the talk immediately was it was a staff member and its a staff member to a liberal adjusted who was mad. I will say, i mean if you talk to folks of our work inside the building, and i havent come folks of clerked on the court folks of work at the court would almost all say that the odds up the higher in the totable you go. Because a clerk who was bound to have been a leader is risking their entire career, or as a justice who was found to be the liquor will be invited to give speeches atan fancy banquets and float on private jets to them. Okay. On that note we are going to stop. [applause] it was great. Thank you. [applause] weekends on cspan2 are an intellectual feast. Every saturday in American History tv documents americas stories, and on sundays booktv brings you the latest in nonfiction books and authors. 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