During Donald Trump’s first term, the Supreme Court made some effort to check his power. But that era is over. The court has ruled that Trump cannot be prosecuted for actions he took as president, including for his role in the January 6 attack on the Capitol, and it just wrapped its latest term by restricting lower courts’ power to block his unlawful orders on issues like birthright citizenship, abortion care, and immigrants’ basic rights.
“What the Supreme Court did is it limited lower courts’ ability to use what has been the most effective tool that lower courts have to reign in the Trump administration’s lawlessness, which is to block a policy on a nationwide basis,” says Leah Litman, author of the new book, “Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.”
This week on The Intercept Briefing, newsroom counsel and correspondent Shawn Musgrave speaks with professor and attorney Litman and politics reporter Jessica Washington about how the Supreme Court’s right-wing supermajority is laying the legal foundation for unchecked executive lawlessness — and signaling to Trump that it won’t stand in his way.
Listen to the full conversation of The Intercept Briefing on Apple Podcasts, Spotify, or wherever you listen.
TRANSCRIPT
Shawn Musgrave: Welcome to The Intercept Briefing. I’m Shawn Musgrave, newsroom counsel and correspondent for The Intercept.
During President Donald Trump’s first term, the U.S. Supreme Court seemed at least somewhat interested in holding him accountable to the law.
But even before Trump was reelected, the Supreme Court showed signs that it wouldn’t stand in his way in a second term.
CBS: Well you’ve been watching a special report. The nation’s highest court has ruled that former President Donald Trump is entitled to some level of immunity from federal prosecution for official acts he took while in office.
PBS: Former President Donald Trump is immune from criminal prosecution for any so-called official acts taken as president.
WHAS11: Absolutely immunity for core constitutional powers.
SM: Last summer the Supreme Court ruled that Trump couldn’t be prosecuted for actions he took as president, including for his role in the January 6 attacks on the Capitol.
And this past June, the Supreme Court finished its term by limiting lower courts’ authority to block any of Trump’s unlawful orders on issues like birthright citizenship, abortion care, and immigrants’ basic rights.
The Supreme Court’s conservative supermajority also greenlit Trump’s horrific practice of deporting people to countries they’ve never lived in, countries where they may face torture and inhumane detention, like South Sudan. The Court did so with barely any explanation at all.
For good measure, this term the Court also signed off on a slew of conservative attacks on transgender and reproductive healthcare, pornography, and even basic representation of queer people in public school classrooms.
All of these are perfectly legal and constitutional, according to Chief Justice John Roberts and the six rightwing justices.
Joining me now to discuss the Supreme Court and how we got here is Leah Litman, a law professor at the University of Michigan and co-host of the Strict Scrutiny podcast. In May, Professor Litman published a new book, “Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.”
Welcome to the show, Professor Litman.
Leah Litman: Thanks so much for having me.
SM: Also joining us is Jessica Washington, politics reporter for The Intercept, who’s been covering legal battles over reproductive rights and other issues. Welcome, Jessica.
Jessica Washington: Thank you for having me.
SM: We’re speaking on Friday, July 11.
Professor Litman, before we get into the Supreme Court’s train wreck of a term, could you set the scene a bit? Your book essentially argues that the Supreme Court’s conservative supermajority is no longer practicing law. It’s just doing conservative politics using judicial language. How did we get here?
LL: So I think we got here in a number of different ways. One is a story of the decline of our democratic institutions. In part because of the Electoral College and Senate malapportionment, it became easier for a party that enjoys only minority support to win control of the Senate and the presidency. And of course, those are the institutions that then select Supreme Court nominees.
And so you almost have this double layer of democratic deficit that is built into the modern Supreme Court. And that court therefore became increasingly comfortable catering to an increasingly narrow segment and minority of the country. You add to that several choices that the Republican Party itself made to really lean into the politics of minority rule, deciding to basically channel the backlash to feminism, channel the backlash to the civil rights movement, and go all-in on oligarchs and corporate interests. And that made them a party that then depends on minority rule.
And so in order to constantly whip their base into a frenzy, they always portray themselves as the victims. And so when that is the message of the political party, and that party can obtain power through minority rule, that’s what you are going to see in the justices they appoint. Particularly because they also perfected this judicial selection machine where they could identify people who are willing to go all-in on some of the more fringe elements of the party.
SM: And we’ll get into this a little bit when we talk about some of the recent decisions. But what role does originalism — the judicial doctrine favored by the six of the justices now, and kind of depending on how you count some of the other liberal ones, maybe they’re also originalists too — but how does originalism play into your framework and kind of what we’re seeing recently from the court?
Can you first talk about what originalism is and what role it’s playing?
LL: Of course. So originalism refers to a method of interpreting the Constitution, and it generally maintains that the Constitution means what it meant when it was originally ratified, whether that’s in the 1700s, or in the case of some of the amendments, 1800s or afterwards.
And so it directs decision-makers to a time when the country was much less democratic. And therefore it’s not really surprising that originalism cropped up as a way of resisting some of the civil rights movements and advances of the 20th century. The first time you start hearing things about how the Supreme Court departed from the original intent of the framers was in the aftermath of Brown v. Board of Education, when segregationists are criticizing the court declaring segregated public schools unconstitutional. And then it really picks up steam during the 1980s in the rise of the Federalist Society and as the Ronald Reagan administration decides to lean into the backlash to feminism and the civil liberties and civil rights revolution of the 1960s. And so originalism starts to become trumpeted and advertised as the method of getting courts to roll back those civil rights advances. And I think it kind of naturally lends itself to doing so. So how does it fit in? I mean, it was a project that was pumped out and advertised as a way of accomplishing some of the Republican Party’s agenda.
And it’s no surprise that in the hands of a super majority Republican dominated Supreme Court that it does just that.
SM: So let’s talk about how this has played out in some recent decisions, specifically, decisions around reproductive healthcare. Jessica, in June you wrote about a ruling that paved the way for South Carolina and other red states to target Planned Parenthood’s funding.
Can you tell us about that decision and how it relates to ongoing fights about defunding reproductive health?
JW: Yeah, definitely. So Medina v Planned Parenthood at South Atlantic, which is the case you’re referring to, can effectively be boiled down to: Can states bar Medicaid patients from accessing a healthcare provider, in this case Planned Parenthood, for ideological reasons?
And the court’s answer was more or less, yes they can. To take a major step back though, in 2018 South Carolina’s Governor Henry McMaster attempted to exclude Planned Parenthood from the state’s Medicaid program, limiting the healthcare options for the 1.3 million South Carolinians who were in the program.
McMaster was explicit that he did this because Planned Parenthood provided abortion care, and I think it’s really important when we talk about this, remember that Medicaid in South Carolina does not cover abortion care, except in extremely limited circumstances. And lower courts have repeatedly sided with Planned Parenthood arguing that the Medicaid act, kind of ironically when we’re talking about originalism, explicitly allows recipients to pick the provider of their choice in a clause known as the free choice of provider provision.
But in June, the Supreme Court rejected those earlier interpretations in a six-three decision. They ruled against Planned Parenthood and that Medicaid recipients do not have a right to pick a specific provider. Obviously, as you’ve mentioned, this comes in a long history of Republicans trying to defund Planned Parenthood any way they can.
And this ruling extends so far beyond South Carolina, essentially granting other conservative states the leeway to also exclude Planned Parenthood from their Medicaid programs. This has massive implications for millions of low income Americans. I believe nationally, about a third of all women have received healthcare services from Planned Parenthood.
And now we’re talking about limiting access to reproductive and sexual healthcare in places where access is already abysmal and incredibly limited. I mean, we have incredibly high rates, I think, in South Carolina of maternal mortality, of sexually transmitted diseases, and really limited access to contraceptives and of course abortion care.
SM: So Professor Litman, this sounds like a pretty technical decision, but Justice Ketanji Brown Jackson writing for the three liberals wrote a pretty fiery dissent, slamming it as “part of a project of stymying, one of the country’s great civil rights laws.” How does this decision about Medicaid and Planned Parenthood and interpreting one federal statute fit into broader efforts over the decades to chip away at reproductive rights and other civil rights?
LL: Absolutely. So I would highlight two aspects of this decision that I think are relevant. One is that, in my view, it really underscores that the movement that led to the rise of originalism, the movement that led the court to overrule Roe v. Wade, it was never just about originalism. It was never just about letting the voters decide whether abortion access is protected.
It was always about this broader backlash to women’s sexual autonomy, their sexual freedom, feminism and civil rights more generally. And so of course, right, this decision is not about originalism, it’s not about the constitution. It is about how to interpret this set of federal statutes. And so it’s no surprise that even when they’re not turning to this methodology originalism — that again, was advertised as a way of rolling back Roe v. Wade and other social policy advancements — that they would do the same thing and accomplish the same result just through a different method here, interpreting statutes.
Now, when you say Justice Jackson links this to the broader project of rolling back civil rights, as Jessica described, the question in this case is whether patients and providers can sue states when states violate federal law, the Medicaid act. Again, no real question here that South Carolina’s decision to boot Planned Parenthood violates federal law. Supreme Court, right, doesn’t deny that it does. The question is whether you can do anything when a state violates that federal law and the patients and providers had relied on this federal statute, section 1983, which is known as the General Civil Rights Law. That law was passed in the wake of the Civil War during reconstruction as a way of ensuring that private citizens can enforce their federal civil rights and get their day in federal court when states are attempting to deny them their rights.
And that is the federal law that the Supreme Court says these patients and providers cannot rely on when South Carolina is attacking women’s access to healthcare. And Justice Jackson links the court’s decision to narrow civil rights remedies and the ability to enforce civil rights to the Supreme Court largely dismantling reconstruction in the aftermath of the Civil War.
And so I think that those are really the two projects on display in this Planned Parenthood decision, both an attack on the project of multiracial democracy, that reconstruction represented, and also this attack on feminism, the idea that women have rights.
SM: So there’s another way that this has played out recently in the reproductive healthcare arena.
Last summer, two years after overturning Roe in the Dobbs decision, the Supreme Court punted in another major abortion case out of Idaho, and we’re now starting to see the fallout from that move under the Trump administration. The case last summer was about patients’ rights to emergency abortions under the Federal Emergency Medical Treatment and Active Labor Act, or EMTALA.
The Supreme Court sent the case back down to lower courts without ruling on what’s actually protected or not under that federal law. Jessica, so what has the Trump administration been doing recently to weaken protections for emergency abortions?
JW: Thank you for asking about this. So just to start off, EMTALA or the Emergency Medical Treatment and Labor Act requires that hospitals that take Medicare provide stabilizing care to patients experiencing medical emergencies.
So in 2022, after the fall of Roe, the Biden administration provided guidance, clarifying that if abortion care was necessary to stabilize a patient in an emergency situation, hospitals were required to do so, regardless of the abortion laws in the state and whether or not they contradicted that effort.
So in June, the Trump administration rescinded that guidance with a super vague statement, essentially saying we’re rescinding this, but kind of nothing really changes and we don’t interpret it the same way. And they said that, and I’ll read it cause I think it’s helpful to. “CMS will continue to enforce EMTALA, which protects all individuals who present to a hospital emergency department seeking examination or treatment, including for identified emergency medical conditions that place the health of a pregnant woman or her unborn child in serious jeopardy.”
It’s really not clear what they meant here. They didn’t add a ton of extra information. HHS told me that effectively nothing would change when I asked. But when I talked to providers, they told a very different story. They said the confusion caused by this new guidance would get women killed in these really uncertain and fast-paced medical emergencies where every second counts.
So essentially what the Trump administration has done here is add a bunch of confusion into our medical system that already had a ton of confusion, and this confusion gets people killed.
SM: Professor Litman, let’s talk about the Supreme Court’s role in the confusion. This seems like another example of the conservative majority on the Supreme Court using a procedural or technical maneuver to give anti-abortion Republicans and the Trump administration now free reign.
They didn’t technically weaken or change the federal law EMTALA, but they also declined to say what it meant. So can you talk about what you see in the road ahead for reproductive rights under this court?
LL: I mean, the Supreme Court has its hands all over the unfortunate catastrophe that is unfolding because states are basically being told maybe you don’t have to abide by EMTALA when it comes to abortions.
So what the Supreme Court did in this EMTALA case is it dismissed the writ as improvidently granted, which just means they decided not to decide whether EMTALA actually does prevent states from enforcing their abortion bans to prohibit hospitals from providing health and stabilizing care when that care is an abortion.
When a woman shows up to an emergency room and she’s experiencing severe complications, and the question is can we stabilize her by providing an abortion and some states restrictive abortion laws say, no you can’t. And EMTALA, right, should say, no you have to. And so by declining to decide whether EMTALA does indeed prevent states from enforcing their abortion bans in those circumstances, the Supreme Court left open the possibility that states can continue to enforce their abortion bans in those medical emergencies. And so that is what creates the uncertainty that Jessica is alluding to, whether indeed these abortion bans can be enforced against hospitals and doctors that are trying to provide life and health saving care to their patients.
I think the second way in which the court is responsible for this catastrophe is during the period in which the Supreme Court was ostensibly deciding to decide whether to decide it, they had stayed a lower court ruling that had blocked the state from enforcing its abortion ban in these cases of medical emergencies. So what happened when the state could enforce its abortion ban in these cases of medical emergencies, women had to be airlifted out of the state in order to receive emergency care.
If you read the stories of these patients, it is appalling.
SM: Yeah, it’s horrifying,
LL: Right, like they are telling the helicopter pilots and whatnot, tell my children I love them. They don’t remember what is happening. Women are being told, maybe get helicopter insurance because the price of these rides is just immense.
And so the Supreme Court, again allowed the state to enforce its abortion ban during the period in which it was deciding whether to decide this case, opted not to decide it, and thereby cleared the way for the Trump administration to signal to states, don’t worry, you can enforce your abortion bans in these medical emergencies.
SM: Let’s turn to some of the other signals the Supreme Court is sending to the Trump administration and conservatives around the country. Let’s start with the birthright citizenship case. The conservative majority didn’t address whether we all still have birthright citizenship as a bedrock constitutional concept via the 14th amendment.
Instead, they ruled that district courts couldn’t issue nationwide injunctions in a staunchly originalist decision that Justice Jackson torched in her dissent as a “smokescreen of legalese.” So Professor Litman, what’s the real impact of this decision and how does it fit into your framework of a vibe-based Supreme Court?
LL: Yeah, so the impact of this decision I think is twofold. One is the practicalities in litigation, that is, where it might actually undermine people’s ability to enforce their rights. And then the second is more atmospheric and what signals they are sending to the Trump administration as far as emboldening their attacks on lower courts.
So I’ll just start with the first, kind of like the practical rubber hits the road. What the Supreme Court did is it limited lower courts’ ability to use what has been the most effective tool that lower courts have to reign in the Trump administration’s lawlessness, which is to block a policy on a nationwide basis.
Because what the Supreme Court is saying is in order to block the administration from applying its policy to anyone anywhere, you need one of two things to happen. One is your case needs to proceed as a class action, and the second is a case could be filed by a state and a court would have to conclude that in order to remedy all of the harms to a state, the policy has to be blocked on a nationwide basis.
Now, some cases involving some policies are going to be able to clear those procedural obstacles, but not all of them are. And so what that means is in some set of cases, the Supreme Court is going to say, no, you can’t have a class action here, or your state can’t get a nationwide injunction. And what that is going to create is what Justice Jackson called a catch me if you can regime of executive lawlessness, where in order to prevent the executive brand from violating your rights, you would have to sue. And that allows the executive branch, again, to potentially implement its illegal policies in some places that didn’t opt to sue against some people, who weren’t able to get a lawyer, or weren’t able to be part of a class action that was certified. And that’s going to create this patchwork of lawlessness where the executive branch is basically free from its legal obligations.
In some ways, I think, the more concerning aspect of this decision, although that is certainly very concerning. The more concerning aspect of this decision is the Supreme Court’s choice to resolve this issue now, in the context of a case that involves some of the most egregious and blatant lawlessness. Because the Supreme Court had a choice about when to decide this question of nationwide injunctions, what case to decide it in, and also had a decision about what issues in the case to decide. That is whether they would also say, sure, you can’t get a nationwide injunction, but by the way, this executive order, super illegal in multiple ways.
The plaintiffs challenging it asked the Supreme Court to decide those questions and by opting to decide that the issue in this case that warranted their time is the behavior of the lower courts rather than the behavior of an executive branch that is violating the Constitution, violating federal law and refusing to comply with court orders. That the problem is the lower courts? That is really going to embolden the executive branch in their continued attack on the legitimacy of lower courts enforcing federal law against the executive branch.
SM: Yeah, and since the birthright citizenship case, we’ve seen smaller decisions on the shadow docket from the Supreme Court of them just saying, no, actually we’re just going to reverse this injunction that the lower court issued
LM: Right.
SM: No explanation. That’s what they did in the South Sudan case. So, vibe certainly seems to be the way to think about it.
[Break]
SM: Maybe let’s turn to perhaps the most vibe based decision of the term, in my opinion: The Pride Puppy case.
LL: OK. I think I would agree with you. [Laughter]
SM: Yeah. Yeah, it’s a tough category. I would put it between this and maybe the porn case, but the Pride Puppy case. Jessica, can you briefly give us the background on this one?
JW: So in this case, parents in Montgomery County sued over the inclusion of LGBTQ+ inclusive books. These books included, as you’ve mentioned, Pride Puppy, along with a host of other books celebrating people of different queer identities. Parents argued that because they weren’t given the option to opt out of these lessons, their religious liberty was violated.
So in this case, the court ended up siding with the families. And it’s a little more complicated than that, but that saying that they were entitled to a preliminary injunction while their lawsuit went ahead. Now, I think what’s important in this case to talk about is the dissent. So in the dissent Justice Sonia Sotomayor noted this was an incredibly slippery slope, and I think a lot of legal analysts could agree.
This really opens the floodgates for parents to challenge on lessons from everything from evolution to civil rights if it violated their specific religious belief. This also clearly opens the floodgates as well for litigation from families over the inclusion of LGBTQ+ books and classrooms generally.
So I think this is a case where you can really see this kind of slippery slope argument going forward. And also, when you’re talking about this case, we’re really talking about just the inclusion of queer people in general in stories for children. We’re not talking about books that said you have to be trans or anything like that.
We’re talking about books that simply tell children it is OK to be different.
SM: Or just that they exist.
JW: Or that they exist!
SM: Their inclusion as characters.
JW: Yeah, their inclusion as human beings and people with equal value and rights. And this is definitely a backward slide.
LL: Jessica, I agree with your reading of the books. But I think Shawn, why this decision takes the cake on the most vibes-based is because when Justice Samuel Alito and the other Republican appointees looked at the books, they picked up different vibes. And the vibes they picked up is these story books, which again involve a pride parade, and a puppy in a rainbow bandana, and a woman in a leather jacket, and a book in which a girl’s favorite uncle is going to get married, just so happens gets married to a man, and the girl’s concerned that her favorite uncle will have less time to spend with her.
SM: Filth, absolute filth.
LL: [Laughs] The vibes that he picked up and the other Republican appointees is what the books were saying is you have to accept marriage equality or trans people because otherwise you are evil.
Like literally, if you read the opinion, Justice Alito talks about this storybook, “Uncle Bobby’s Wedding,” and says, the book is coy about the precise reason why little Chloe objects to her uncle’s wedding. And it’s like, it’s not coy about this at all. But again, he picks up some different vibes because the books involve gay people and trans people, and he just can’t live with that.
SM: So this ties into a chapter of your book about the Supreme Court’s really scavenger hunt for religious discrimination as part of the conservative blowback to queer people just finally getting some legal rights in landmark cases like Lawrence v Texas in 2003, which struck down state sodomy laws, and of course the Obergefell decision in 2015, which legalized same sex marriage.
So can you give us a bit of the historical context for how we got to Justice Alito’s very particular reading of Pride Puppy?
LL: Yeah. So here too, the story really starts with the political and social movement that the Republican Party capitalized on. And in the midst of this backlash to feminism, there is also a backlash to advancements in LGBT rights.
So my book talks about Anita Bryant, who is this former pageant queen who appeared in Florida orange juice commercials, and she kinda leads this crusade against LGBT rights. And she insists she’s not doing so out of hate, but out of love. And that the problem is that, as she calls it, the homosexuals around the country have the support of liberal politicians and they’re filled with religious bigotry.
And so it’s these ideas that get incorporated into the Republican Party’s resistance to LGBT equality, where they paint efforts to obtain civil rights for the LGBT community as actually attacks on those religious believers who are opposed to LGBT equality. And you start to see these ideas surface in the dissents to those major cases that represented victories for LGBT equality.
In Obergefell v. Hodges, the marriage equality decision, Justice Alito talks about how that decision, to again, recognize that same sex couples can get marriage licenses, how that is going to facilitate the marginalization of people with traditional views about marriage. And he says it will call to mind the harsh treatment of gays and lesbians in the past. As if allowing gay people to get married is just like prohibiting them from getting married and a period in which you could be institutionalized for consensual sexual intimacy with a person of the same sex. That’s the mindset that was in play among the Republican appointees on the Supreme Court, and that is now the mindset that you can see surfacing in their majority opinions.
They deny that there is discrimination against LGBT people at the same time that they insist any and all equality for LGBT individuals is actually discrimination against the religious and social conservatives who are opposed to LGBT equality. And based on that idea, they are chipping away at LGBT equality and giving people with objections to marriage equality the ability to opt out of civil rights laws that prohibit discrimination on the basis of sexual orientation or gender identity. And so it’s that kind of long arc that I trace in political and social movements and then identify in the writings of the Republican appointees on the court today.
SM: Right. One of the really formative moments for me in law school was reading Justice Scalia’s descent in Lawrence.
LL: Oh yeah.
SM: And I mean, I had heard of Scalia all my life as this kind of lion of originalism and rigorous legal thought, but then if you read the entirety of his dissent, there’s some pretty bigoted zingers in there that didn’t quite make the news coverage at the time.
LL: Yeah. He talks about how people are entitled to protect themselves and their families from what they view as an immoral or destructive lifestyle. That is how he talks about that case.
SM: Yeah. And the capture of the homosexual agenda.
LL: Oh, yeah. The court has signed on to the homosexual agenda. It’s like, oh my gosh.
SM: Before we wrap up, I want to talk a bit about the court’s two most recently confirmed justices. There’s Justice Amy Coney Barrett, the conservative appointed by Trump, who going into this term, was being framed as a moderate or kind of a wild card in the conservative majority by some commentators, especially compared to some of the other Trump picks for SCOTUS. And then there’s Justice Ketanji Brown Jackson, who’s leaning into the role now of writing these blistering, very clear-eyed dissents sometimes just for herself.
So Professor Litman, what did we learn from this term about these two justices?
LL: I think what we learned about Justice Jackson is that she is really the next frontier of what I hope will be Democratic appointees to the courts in that she recognizes what her Republican colleagues are up to and she is willing to call it out in ways that lay plain. You know, the slipperiness of their maneuvers, how selective they are in their approach to legal rules, and the underlying ideology that is doing work at issue in these cases. And I think her willingness to do that is, from my perspective, greatly appreciated, very powerful, and calls more attention to the Supreme Court than they would otherwise get in a world of more subdued dissents or a world where the Democratic appointees are engaged in appeasement and trying to make compromises with the Republican appointees to accomplish what, I don’t know, but I appreciate her recognition that that is not the strategy right now. Especially in a world where the court is six to three Republican appointees.
And I have found her writings and her statements off the bench to just be incredibly persuasive and memorable and also accessible. Justice Barrett, I was not one of the people that thought she was some secret, moderate, liberal squish. So what we learned is that people trying to sell that narrative, were selling us a false bill of goods.
This is a rock-ribbed right-wing conservative, who just so happened to say a state court in New York could engage in an electronic remote sentencing of Donald Trump on those 34 felony convictions, as long as he was going to impose no prison time. Like that was one of the cases in which she departed from her Republican colleagues, in which everyone was making some big deal about it.
And then, I can go into the other examples. But the point is, they weren’t that big a deal. And she was with them on the big ticket cases and in fact, she’s to their right on some issues.
SM: Yeah, exactly.
LL: In Skrmetti, the case about, yeah, the ban on gender affirming care for trans kids, the Chief Justice’s majority said, oh, this law doesn’t actually discriminate against trans people. And she wrote separately to say, but even if it did, I would be fine with that and still treat it as constitutional. So this is not some secret moderate who’s going to save us.
SM: Yeah. Her concurrence in Skrmetti was wild, especially since from her wing of the court, you’re not supposed to talk about things that are necessary to the decision.
So to kind of pull in this really farfetched argument that it would be really hard to show that trans people have been subject to de jure or by law discrimination was the thrust of her concurrence, which Justice Thomas signed onto. And what world, this century or another, can you make that statement with a straight face? It’s not a moderate result. I agree.
Jessica, do you have any thoughts, particularly reading some of the dissents that you’ve covered from Justice Jackson?
JW: I think what’s really interesting to me is in Washington, collegiality is so important. Waiting your turn is so important, you know, not speaking before your time. And the fact that she’s been willing to, especially in the Supreme Court, throw that out the window: speak openly, speak often, speak forcefully, call out her colleagues — I think we’re seeing, as Professor Litman pointed out, we’re seeing really this shift in Jackson and hopefully a shift that we see maybe from some lawmakers as well.
But this recognition that we’re not in regular times, we are in this really quick descent, I would argue, towards something akin to fascism. And the fact that she recognizes that and is willing to speak on that is such a shift in this court, and it feels so important in this moment.
SM: I agree. We’ve talked about the bleakness of recent Supreme Court decisions. Let’s end maybe by looking to the future and how our democracy might find ways to repair some of the damage. Professor Litman, in your book’s conclusion, you come out in favor of expanding the court and also give some other thoughts on countering the conservative reshaping of the judicial branch.
So how can we, get past all the damage that the Supreme Court has inflicted so far, and probably will keep inflicting at least for the rest of Trump’s term?
LL: It’s really two things. One are the specific proposals you can enact into law to democratize an institution like the Supreme Court.
And then the second is all of the things that need to be done in order to get us to a point where we can actually adopt those reforms. So it’s easy enough to list the things that I think have to be done from Supreme Court expansion, to limiting the Supreme Court’s authority to strike down laws like the Voting Rights Act, to ethics reform, to all of the other things that would be very helpful to making the Supreme Court a better functioning institution, giving Congress more control over the kinds of cases the Supreme Court hears, or creating term limits, like all of that would be great. And then the question is: OK, how do we get from here to that world?
And this answer is always frustrating to people and they don’t like to hear it, but it’s going to take a while to change an institution like the Supreme Court. And there are going to be things we have to invest in that are not going to yield immediate returns. From public education and information to organizing, to investing in state and local elections and primaries to identify those democratic leaders who understand the situation in the same way that Justice Jackson understands the situation, contra other democratic politicians and leaders.
So, those are some steps, and that involves organization that involves education, and that involves staying committed to the strategy over the long haul, because again, it’s not something that’s going to get fixed merely by securing a good outcome in the midterms or the next presidential election because the reality is the Democratic Party is still the way it is. And part of the work that has to be done is either reshaping and reforming the Democratic Party so that it understands and responds to the situation we find ourselves in, or changing enough people’s minds to create enough pressure on the current democratic leaders and democratic political elites to do that.
SM: Jessica, do you have any thoughts?
JW: So my two cents are definitely from the people I’ve spoken to, court expansion, and then also just the extent to which we’ve seen so much corruption within the court, really unchecked — unchecked by Congress, even though that is their role. So definitely some real checks and balances on the Supreme Court that we just haven’t seen before, seems to be very important especially with everything that has come out — thank you ProPublica — about Clarence Thomas. It definitely seems like a little more rules in the Supreme Court would help us out.
SM: Alright. And with court expansion and Pride Puppy. I think we’re gonna leave this conversation there.
Thank you so much Professor Litman for joining us on the Intercept Briefing.
LL: Thanks for having me
SM: And thanks for joining Jessica.
JW: Thank you.
SM: Last month, the Supreme Court upheld a ban on gender-affirming care for trans kids in Tennessee.
In her dissent, Justice Sonia Sotomayor wrote, “The majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review. By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims. In sadness, I dissent.”
Ella, from Los Angeles gave us a call to share how her mom and other mothers of trans children are organizing. Here’s Ella.
Ella: My mother, I don’t know that she would personally call herself an activist, but her and a bunch of moms from greater Los Angeles who have trans children are currently working on a massive spreadsheet of essentially hundreds and hundreds of trans resources.
They’re trying to find tips about possible laws, talking to lawyers, and have created a really incredible and powerful network of support. I think it’s really moving the lengths that these women are going for their children. Something that I cling to when I think of how scary a lot of these times are.
SM: Thanks for sharing, Ella.
That does it for this episode of The Intercept Briefing.
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This episode was produced by Truc Nguyen. Laura Flynn is our Supervising Producer. Sumi Aggarwal is our executive producer. Ben Muessig is our editor-in-chief. Chelsey B. Coombs is our social and video producer. Fei Liu is our product and design manager. Nara Shin is our copy editor. Will Stanton mixed our show. Legal review by David Bralow.
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Until next time, I’m Shawn Musgrave.
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(Except for the headline, this story has not been edited by PostX News and is published from a syndicated feed.)
