The Very Worst of SCOTUS 2023
Speaker A: This ad free podcast is part of your Slate plus membership.
Speaker B: The court today does what courts should.
Speaker A: Not, as our boys sit around in their gingham shirts and their weird surf shorts, just mastering the universe.
Speaker C: His own court has collapsed into the squabble of partisan politics, and two of its members are are maybe two of the most partisan justices who have ever served in history.
Speaker A: Still life in corruption and graft and quid pro quoism.
Speaker D: We have a very thin record.
Speaker C: I think that Alito is making a kind of category error here.
Speaker D: He said she said situation.
Speaker A: John Roberts essentially flips the bird to the Senate Judiciary Committee.
Speaker C: We’re all on the up and up.
Speaker C: The salmon fishing is totally above board.
Speaker C: Just trust us to police ourselves.
Speaker D: Can’t promise I haven’t said that.
Speaker D: Come out for coffee.
Speaker D: You have my number.
Speaker A: Hello and welcome back to Amicus.
Speaker A: This is, of course, Slate’s podcast about the courts and the law and the Supreme Court and democracy.
Speaker A: And from all of our families here at Slate to yours, we want to wish you a truly peaceful and happy holiday season.
Speaker A: And we want to wish you and yours a happy 2024.
Speaker A: To light up the landing strip to 2024, Mark Joseph Stern and I have opted to reprise.
Speaker A: Last year we did this only for Slate plus members.
Speaker A: But this year, why not fling the doors open and reprise our New Year’s theme from last year’s show, in which we counted down the top ten crappiest, suckiest, and lamest moments of the US Supreme Court’s term?
Speaker A: And so this year, we shall do the same with the 2023 year at the highest court in the land.
Speaker A: Needless to say, friends, this top ten could take quite a while.
Speaker A: But honestly, as 2023 winds down, we can at the very least, come together to say goodbye to some of really the most wretched experiences of the past 365 days.
Speaker A: And there is, of course, nobody I like being wretched with and celebrating suckiness with more than our own jurisprudence co pilot Mark Joseph Stern, who covers the high court and the law for us at Slate.
Speaker A: So hi there, Mark.
Speaker C: Hi, dahlia.
Speaker C: Happy to be here.
Speaker A: Happy New Year.
Speaker C: Happy new year.
Speaker C: I feel like the introduction there didn’t make this sound like a romp or a delight, but listeners should know that it will be, and it will end on a note of hope, right?
Speaker C: I think self congratulatory hope, but hope nonetheless.
Speaker A: We’re supposed to surprise them with hope when they’re just wallowing.
Speaker A: But yes, we’re going to end with hope.
Speaker C: Well, they need something to cling to as they slog their way through herein.
Speaker A: We’Re going to bring you Dahlia and Mark’s second annual barrel scraping rundown of the US Supreme Court’s very bad, no good, ickiest, worstest moments of the 2023 calendar year.
Speaker A: Mark, you want to go first?
Speaker C: I want to start off with what every listener is surely clamoring for right now, which is audio of Neil Gorsuch reading his opinion in 303 creative.
Speaker C: I’m sure listeners remember 303 Creative is the fake case out of Colorado in which a woman claimed to be a wedding website designer who wanted to make these websites but discriminate against same sex couples.
Speaker C: Turns out no same sex couple had ever asked her to make a wedding website.
Speaker C: She herself had never manifested any desire to make them.
Speaker C: This case was cooked up by a far right law firm called Lions defending freedom.
Speaker C: The facts were just bogus through and through, but Neil Gorsuch ruled in favor of discrimination in this case, ruled in favor of the fake plaintiff, and read his opinion from the bench in a way that is maximally smug and seemed designed to own not just the libs, but the dissenters led by Justice Sonia Sotomayor.
Speaker C: And what I want to specifically point out is that Justice Gorsuch reimagines the facts of the case from start to finish, and yet in his bench statement, turns around and accuses Sonia Sotomayor of doing the actual reimagining, gaslighting to the hilt, as is his want.
Speaker D: The dissent must reimagine the facts of this case and the legal question before us.
Speaker D: It must disregard the party’s stipulation that Miss Smith will work with all persons.
Speaker D: It must ignore that everyone agrees Ms.
Speaker D: Smith’s work is expressive in nature and squarely protected by the First Amendment, and nothing like a hotel, restaurant, or other business providing non expressive goods or services.
Speaker A: Excellent.
Speaker A: That’s a very solid, crappy moment, and I want to follow it up with a reference to one of my top five, which was the reveal of the ethics code.
Speaker A: I’m putting ethics code in a great big fat air quotes in my head, and I hope the listeners can hear them.
Speaker A: They’re covered in glitter in honor of New Year.
Speaker A: But this was, I think our friend Gabe Roth at fixed the court in his prebuttal to the chief justice’s State of the judiciary report, which will drop with the ball on New Year’s Eve, noted that, quote, 2023 was the most important year for judicial ethics in decades.
Speaker A: End quote.
Speaker A: And yet it ended finally, after all this wrangling, with the release of this lackluster, non binding, unenforceable cut and paste rehashing of the ethics rules that the court had already told us.
Speaker A: They were lacklusterly and non bindingly and unenforceably following last spring.
Speaker A: And so I must say that at the very, very tippy top of my list of things that are depressing and disappointing, the fact that the court had the opportunity to show the country that they understood that in the face of one revelation after another horrifying revelation after another, of ethics violations, of unreported trips, of unreported air travel, of lavish gifts, of salmon fishing, of cavorting with parties who would come before the court or whose interests would come before the court, none of which was revealed.
Speaker A: What the court finally revealed toward the end of the calendar year was a great big whomp.
Speaker A: Whomp of nothing.
Speaker A: So that’s my number nine on the top ten crap moments of the year.
Speaker C: That’s a great one.
Speaker C: I especially love the way that we were gaslighted into believing that this code has existed all along, and we just had to believe in it hard enough for it to be revealed as truth to the public.
Speaker C: As you wrote at the time, we were the ones who misunderstood.
Speaker C: This glorious court had been adhering to this stringent and definitely legitimate code the whole time, and we just had to beg them hard enough for them to be willing to hand it down.
Speaker C: Let us peep it and say, don’t you worry, little ones.
Speaker C: We’re all on the up and up.
Speaker C: The salmon fishing is totally above board.
Speaker C: Just trust us to police ourselves.
Speaker A: I think one big ethics theme of this past year is ethics, Colin.
Speaker A: It’s not us.
Speaker A: It’s you.
Speaker A: Okay, what’s your next one, Mark?
Speaker C: My next one is another grab from inside the courtroom.
Speaker C: This one was during arguments in counterman versus Colorado, a case we didn’t talk about as much as 303 creative.
Speaker C: But it was very important.
Speaker C: It involved First Amendment and stalking, specifically, the First Amendment rights of stalkers who are tormenting and abusing women through speech that is threatening and vile and dangerous.
Speaker C: During oral arguments, John Roberts decided to do his I’m a comedian act, which is always trouble, because he typically only does it when he’s feeling like the case before him is so easy and obvious and unworthy of his attention that he might as well pull a tight five.
Speaker C: And that’s exactly what he did here.
Speaker C: Now, recall that in this case, the alleged stalker had sent thousands of messages to his victim over the Internet.
Speaker C: Thousands of messages, many of them frightening and violent and weird and disturbing.
Speaker C: So much so that his victim abandoned her career as a musician and fled the state of Colorado.
Speaker C: But John Roberts decided to just read a few choice quotes from the record and turn them into a mockery of the victim.
Speaker C: And here is perhaps the lowlight of that argument.
Speaker D: I’m sorry, this isn’t remotely like that.
Speaker D: It says, staying in cyber life is going to kill you.
Speaker D: I can’t promise I haven’t said that.
Speaker D: Come out for coffee.
Speaker D: You have my number.
Speaker D: I think that might sound solicitous of the person’s development.
Speaker D: I mean, if we’re talking just about what the statements that.
Speaker D: What tone would you use in saying that that would make it threatening.
Speaker A: And, Mark, you and I both pointed this out at the time, but please, please, can we just highlight once more that the double throat punch of the court’s kind of cavalier treatment of a victim of stalking?
Speaker A: And we had Marianne Franks on the show to talk about this.
Speaker A: And we also published, as you note, her reaction to that oral argument at slate.
Speaker A: But the double double whammy here is that the people who had no regard or solicitude for the victim of years of online stalking and abuse are the very same people who cannot stop for a moment obsessing about the threats and abuse and insults that are directed at them.
Speaker C: I think that’s a perfect segue into our next worst moment of the year, if you want to take that away.
Speaker A: I’m going to take it away.
Speaker A: And this really is a hall of fame moment.
Speaker A: I just want to talk about the portrait.
Speaker A: I just want to talk about the portrait of Harlan Crowe and Mark Paioletta and Leonard Leo and Peter Rutledge, just hanging with Clarence Thomas at Camp Topridge, a huge compound owned by Harlan Crowe in upstate New York’s Adirondack park.
Speaker A: And I like that we have a little moment of art history here in the show.
Speaker A: This is the thing that, God bless them, our friends at Propublica, who broke the story and have broken so many of the stories of Harlan Crowe’s generous offering of gifts and love to Clarence Thomas.
Speaker A: But not just love, access.
Speaker A: Access to people like Leonard Leo.
Speaker A: And so walk with me, if you will, to this portrait by the artist Sharif Tarabub.
Speaker A: I love this part.
Speaker A: He’s a Montreal illustrator, so a canadian, really.
Speaker A: Still life in corruption and graft and quid pro quoism.
Speaker A: Here we are at this massive compound just kicking back with Peter Rutledge, Leonard Leo, Mark Paoletta, conservative operatives who have chosen to reshape the court in the image of conservative operatives and millionaires, and they’re sitting around in their Adirondack chairs.
Speaker A: There’s cigars, there’s laughter, there’s joy.
Speaker A: And there is also an absolutely massive native american, bare chested man statue reaching up to the skies as our boys sit around in their gingham shirts and their weird surf shorts, just mastering the universe.
Speaker A: It is everything everywhere, all at once.
Speaker A: Words fail.
Speaker A: When I look at this portrait, every single time, a little tiny part of me that used to really have deep, deep regard for the line between the work of the judiciary and the utter, tawdry corruption of the 1%, there’s no line there.
Speaker C: That was a beautiful description.
Speaker C: I was an art history major in college.
Speaker A: I didn’t know that.
Speaker C: I might have something to add, which is that to me, it’s not so much a still life as a quintessential, almost archetypal scene of Christ preaching to the apostles, right?
Speaker C: You have this central figure, this almost sorcerer like magic man in Clarence Thomas who’s sitting there sharing his wisdom with this close inner circle of the few people who truly understand and support him.
Speaker C: And it’s this beautiful moment captured in paint for all eternity.
Speaker C: Who else but a Canadian could do it?
Speaker C: Dahlia, really?
Speaker C: Let’s be honest.
Speaker C: And I think it’s almost like a foreshadowing of what I’m sure Clarence Thomas would view as the passion scenes to come later in his life, the persecution that he views as falling down all around him over the last year, as these exposes have come out just one after the other, I think he feels that he is attending his own stations of the cross, and this is almost a last supper scene.
Speaker C: But he knows that no one in that crowd is going to betray him.
Speaker C: They’ve got too much money and power invested in that relationship for any kind of Judas figure to emerge.
Speaker C: So I think it’s a rich text as well.
Speaker C: And even though it is a low light in our year, in some ways, it spoke to my soul in a deep way.
Speaker C: And I have to call it a highlight, paradoxically, as well.
Speaker A: Excellent.
Speaker A: And maybe one other note before we leave the portrait and the verdant piney greens, among the many, many lavish gifts that crow bestowed on, including buying his mom’s home and gifting his grand nephew’s tuition.
Speaker A: While this particular painting, according to ProPublica, belongs to Harlan Crowe, Harlan Crow has gifted other paintings by the same artist to Clarence Thomas.
Speaker A: In other words, the portrait is not just an encapsulation for all time of the gift of grift.
Speaker A: Paintings are part of the gift of grift itself.
Speaker C: I love that the gift of grift is the name of your next book.
Speaker A: The gift of the grift.
Speaker A: Clearly the grift of the Magi.
Speaker C: Wow.
Speaker C: Incredible.
Speaker C: What a great twist to end on.
Speaker C: And I think this, too, leads nicely into our next item, which is Justice Sam Alito complaining about the criticism of him from the public, specifically in the pages of the Wall Street Journal opinion section, where he said, in one of two different pieces that involved interviews with him, struggle sessions with him, he said, quote, I marvel at all the nonsense that has been written about me in the last year in the face of a political onslaught.
Speaker C: The traditional idea about how judges and justices should behave is they should be mute and leave it to others, especially the organized bar, to defend them.
Speaker C: But that’s just not happening.
Speaker C: And so at a certain point, I’ve said to myself, nobody else is going to do this, so I have to defend myself.
Speaker C: And the Wall Street Journal writers add, he does so with a candor that is refreshing and can be startling.
Speaker C: So I guess I think that Alito is making a kind of category error here, which is this notion that Supreme Court justices have some kind of divine right to be fiercely and unquestioningly defended against legitimate political reporting and public criticism toward their activities and their rulings.
Speaker C: That is the basis of this entire gripe.
Speaker C: That is also the basis of his own prebuttal in the pages of the Wall Street Journal opinion section before one particularly spicy pro publica report came out.
Speaker C: And I guess I just don’t know where he got that idea and how he can back it up.
Speaker C: I don’t want to give Justice Amy Coney Barrett too much credit here.
Speaker C: Okay?
Speaker C: Obviously, this is not a show that typically gives her credit, but she recently did a talk where she know justices are public figures.
Speaker C: We wield a lot of authority.
Speaker C: We have to have a thick skin in response to public criticism.
Speaker C: I’ve learned how to do that.
Speaker C: I’ve developed a thick skin, and that’s all I really have to say about it.
Speaker C: And I think that that’s true.
Speaker C: I mean, you don’t really see Justice Barrett coming out being like, why isn’t every single credentialed attorney in this country defending me to the hilt on Facebook, to their crazy MSNBC watching know, you don’t see this kind of grievance mongering from Barrett or even Kavanaugh or Roberts that you do from Alito and Thomas.
Speaker C: They are the court’s whiners in chief.
Speaker C: And as entertaining as it is to do dramatic readings of their whining, it is getting a little bit old, and it is kind of a consistent reminder that they don’t seem to fully understand what their jobs are.
Speaker A: Yes, and we could add the coda to this story that, of course, the fawning correspondent in this particular Wall Street Journal.
Speaker A: I don’t know what to call it.
Speaker A: Is it an op ed?
Speaker A: Is it a reported piece?
Speaker A: Is it just offering itself up as Samuel Alito’s personalized microphone, as you say to the world, no other justice actually has a little bell that they can ring to make op ed writers come and take dictation.
Speaker A: But all of that is not enough.
Speaker A: But it is worth saying that one of the two authors of that piece then goes on to represent members of another fake case that has fake facts that you and I described, a major, major tax case that the court heard.
Speaker A: And it’s not just that Sam Alito rings a little bell, recites his grievances, and they get published verbatim, but that the guy who’s the quote unquote journalist in that particular episode is somehow also a lawyer who represents who, Mark.
Speaker C: Who represents the Moors, a couple who are trying to preemptively destroy Elizabeth Warren’s wealth tax well before there’s any indication that Congress could ever pass it, by cooking up a totally fake case built on lies, fraud, and deceit, which we have covered on a previous episode.
Speaker C: But it’s worth reiterating, this case is just as fake as 303 creative.
Speaker C: And only Sam Alito, of all of the justices seemed seriously ready to go to bat for the plaintiffs.
Speaker C: Which is funny, because it’s his best friend and interlocutor who’s representing the plaintiffs.
Speaker C: I’m sure that there’s no connection between those two things, Dahlia, because Supreme Court justices are incorruptible.
Speaker C: We’re assured they have ethics and glitter.
Speaker A: There’s more.
Speaker A: David Rifkin could very well have been in the Adirondack chair portrait, because David Rifkin is, in addition to representing the moors in that tax case, Leonard Leo’s attorney.
Speaker A: Of course he.
Speaker A: Because of course he is.
Speaker A: Because.
Speaker A: What’s our next one, Mark?
Speaker A: I guess it’s my turn.
Speaker A: Oh, wait.
Speaker A: This is our joint submission, which is, again, a Samuel Lido classic man.
Speaker A: He is really acquitting himself magnificently.
Speaker A: This is the Supreme Court’s stay in the Miffa pristone case.
Speaker A: That is one of two drugs in the medication abortion protocol.
Speaker A: And last year, we had a preposterous opinion.
Speaker A: I mean, snot out your nose, preposterous opinion from us district Court Judge Matthew Kasmaric.
Speaker A: Reversing the FDA’s two decades old approval of that drug.
Speaker A: More fake group, fake doctors with fake complaints.
Speaker A: Put that aside and the Supreme Court instituted a stay that lasts until the court will hear the case.
Speaker A: But wait.
Speaker A: Justice Sam Alito has complaints.
Speaker A: Both Alito and Clarence Thomas would have allowed the ruling by a panel of the Fifth Circuit to stand.
Speaker A: And this is some classic, classic insult comedy material from Justice Alito’s dissent that starts with a whack at the shadow docket and railing at Justice Amy Coney Barrett, but then moves into unbelievable territory with the whack at the Biden administration.
Speaker A: Will you take it up from there, Mark?
Speaker C: It’s so bad that it’s good, right?
Speaker C: I mean, Alito’s heart was barely in this.
Speaker C: I honestly think, like, Alito could not muster a substantive defense of Kazmirk’s opinion or the Fifth Circuit’s decision trying to refashion Kazmiric’s opinion into something coherent and legible.
Speaker C: So instead, he just kind of starts hurling out insults, and one insult, as you noted, is hurled at the Biden administration, claiming that even if the courts blocked MiFa pristone in part or in whole, that the Biden administration would maybe just ignore that decision.
Speaker C: Based on what?
Speaker C: Based on not any court filings or representations from the administration, but based on some advocacy from progressive scholars who felt that the administration could ignore it, even though if there’s one thing we know about the Biden DOJ, they follow the rules to a t, sometimes to a flaw, they play it by the book.
Speaker C: And yet, Alito said, I think they’re just going to ignore this decision, so we shouldn’t even weigh in because they’re going to just do whatever they want anyway.
Speaker C: But there’s something else in this opinion that I think is really bad and also kind of funny that deserves a highlight here, which is that, as you said, matthew Kasmerick’s opinion was like, snort out your nose absurd, right?
Speaker C: Justice Alito doesn’t have any negative things to say about that opinion, but he does have negative things to say about a dueling decision that came down minutes after Kazmerics from an Obama appointed judge in the state of Washington named Thomas Rice, who, in response to a different lawsuit brought by blue states, issued a carefully tailored order preserving access to MiFa Pristone.
Speaker C: In those states, there were sort of dueling injunctions.
Speaker C: One, Matthew Cosmerics, was nationwide.
Speaker C: It applied in all 50 states.
Speaker C: It vastly exceeded any known judicial authority.
Speaker C: The other applied only to the plaintiff states.
Speaker C: It was carefully circumscribed it, really played it by the rules.
Speaker C: And Alito only decides to insult the latter.
Speaker C: And he claims that Judge Thomas Rice granted relief without any good reason to do so, so that the Biden administration could leverage his injunction as a basis to implement their desired policy while evading judicial review.
Speaker C: So basically saying this judge and the Biden administration were colluding to keep MIFa pristone legal, and they’re the real villains here, not honorable anti abortion warrior Matthew Kuzmarik.
Speaker C: You can’t make it up.
Speaker C: You really can’t.
Speaker C: Maybe he wrote this on post it notes in the card of the Phillies game, and that’s why it’s so terrible.
Speaker C: But I really kind of expected a little bit more from Alito, who was generally a smart guy.
Speaker C: This didn’t deliver.
Speaker A: And can I add one footnote to your footnote?
Speaker A: Making it a footnote cubed.
Speaker A: But I think it’s worth also just adding that it is not manifest on our top ten list as we round down.
Speaker A: But it is worth saying that one of the things that is crazy making about that Alito descent is his determination that there would be no irreparable injury in denying the stay.
Speaker A: There would be no irreparable injury.
Speaker A: Well, there would be, of course, two pregnant people, but they are utterly invisible in this instance to San Alito, just as they were in Dobbs.
Speaker A: The pregnant people whose lives are imiserated, whose health and well being are annihilated, just doesn’t matter to him in any way.
Speaker A: And so I don’t want to leave that dissent without noting the fallout of the Dobbs decision in terms of making life miserable and wretched for pregnant people and women throughout the country lingers on, and that the fact that Justice Alito doesn’t even know enough to care is very much shot through in that dissent.
Speaker C: Couldn’t agree more.
Speaker C: Invisible people all around.
Speaker C: There’s another class of invisible people to the majority, maybe even despised people who I think this next item leads us right into, which is people who are not wealthy, specifically people who owe student debt.
Speaker C: One of the worst decisions of the Supreme Court this past year was blocking the Biden administration’s rather modest but still meaningful student debt relief plan, which would have forgiven a subset of borrowers $10,000 of their debt.
Speaker C: The Supreme Court, of course, blocked it by a six to three vote.
Speaker C: John Roberts wrote the majority opinion, and we’ve talked a lot about that opinion before.
Speaker C: I’m not going to rehash all the terrible bits of it now.
Speaker C: I just want to point to the very end where John Roberts winds himself up to take a swing at Justice Elena Kagan, who wrote an impassioned dissent in this case that really clearly p***** off Roberts.
Speaker C: And Roberts closed out by saying it has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.
Speaker C: And what I love is that John Roberts wrote that Elena Kagan saw it and then said, you know what?
Speaker C: This is a perfect way to begin my bench dissent.
Speaker C: Next.
Speaker C: Know, Justice Kagan actually took the extraordinary step of saying in her dissent that this case is not a case, something that we’ve been saying for a while.
Speaker C: I appreciate the clarification from Justice Kagan herself.
Speaker C: And she accuses the majority of violating the Constitution.
Speaker C: She actually says of John Roberts and his merry band of conservatives are violating the Constitution by deciding this case.
Speaker C: And I think that’s just glorious, because how many times does the Supreme Court accuse other branches of violating the Constitution?
Speaker C: And here Kagan says, we are doing it ourselves.
Speaker C: And those are fighting words for John G.
Speaker C: Roberts.
Speaker C: And I am so grateful that she.
Speaker B: Said them in every respect, the court today exceeds its proper, limited role in our nation’s governance.
Speaker B: At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to Congress and the executive and the people they represent.
Speaker B: The court today determines that some 40 million Americans will not receive student loan assistance that Congress authorized and the secretary of education put in place because so says the court, that assistant is just too significant in hearing this case at all, and then in striking down the secretary’s loan forgiveness program.
Speaker B: For that reason, the court’s opinion today departs from the demands of self restraint.
Speaker B: The court today does what courts should not.
Speaker C: This case was not a real case.
Speaker C: This case was another fake case, but fake in a kind of different way.
Speaker C: The lawsuit was cooked up by red states that don’t have any vested interest in some of their citizens getting student debt relief.
Speaker C: Instead, Missouri claimed that it was suing on behalf of this student debt servicer that happens to have been created by the state, but is separate from the state, is not part of the state, and in fact, did not want to participate in this litigation, so much so that it refused to turn over key documents.
Speaker C: And Missouri had to use the state level Freedom of Information act just to get basic info about this student debt servicer.
Speaker C: And yet the majority said, oh, okay, well, Missouri has standing on behalf of this servicer.
Speaker C: We’re going to parlay that into a justification to hear this case.
Speaker C: And we’re going to apply the major questions doctrine to essentially change the meaning of the law, which currently allows the secretary of education to waive or modify provisions of the statute, specifically including loans that are owed in order to grant relief to a large class of people.
Speaker C: We’re just going to take our red pens, cross that out and say we don’t think Congress really meant to do that.
Speaker C: It’s too big of a question to leave in their hands and prevent about $430,000,000,000 worth of debt from being relieved for more than 40 million Americans.
Speaker C: I think that Justice Kagan, as a policy matter, probably doesn’t care that much about student debt.
Speaker C: I don’t think it keeps her up at night.
Speaker C: I don’t think it’s a top item on her agenda.
Speaker C: But I think that the fundamental lawlessness of this opinion, the way that the court made up this heretofore unknown theory of standing a state pretending to represent this servicer that doesn’t even want to be part of this litigation and using that to rewrite the law while accusing the Biden administration of rewriting the law, it was too much for Justice Kagan, and that is why she went so hard in the final weeks of the term.
Speaker C: Justice Katanji Brown Jackson and Justice Sonia Sotomoyor wrote a lot of the big dissents and read them from the bench.
Speaker C: This was the one that Justice Kagan saved for herself.
Speaker C: And so as awful as it is for John Roberts to accuse her of this disturbing breach of norms and protocol, I love that her response was to just double down and say, too bad, John.
Speaker C: I said what I said, and I meant it.
Speaker A: It’s so interesting, mark, because to me, it also lifts the veil a little bit, because I think that there is this not in front of the children vibe that we get so often at the Supreme Court, where I’m thinking of Justice Sotomayor’s stench comment in the Dobbs argument, there are these rare moments where you see from the justices like, and now you have gone too far, and this was one of them.
Speaker A: And I think there’s something sort of chivalry delightful about these moments of, I am, in fact, going to do this in front of the children, John Roberts.
Speaker A: I am going to tell you what I think in front of the children and let it land where it may.
Speaker A: And I think you’re quite right that in this calendar year, at least in terms of things that were written or said aloud, that was either shining or incredibly depressing example of an in front of the children moment where the critique had gone too far.
Speaker A: I want to.
Speaker A: Just as I think this is our, we’re at number two horrific moments of the term, and it’s just called all things Rahimi.
Speaker A: And you can join in if you see fit.
Speaker A: This is the big second Amendment case that was supposed to clarify the 2022 ruling in New York state, rifle and pistol versus Bruin.
Speaker A: That was the case that just kind of blew up two centuries of Second Amendment thinking.
Speaker A: And Clarence Thomas just created, out of the blue, this kind of quote, unquote, originalist test that said that you need a historical reference point either from 1791 or 1868, some analog in order to justify regulating guns.
Speaker A: I suppose the fact that the court even had to take it was gross.
Speaker A: The court was supposed to be clarifying this new test that now holds that for gun regulations to be constitutional, quote, the government must identify a well established and representative historical analog, not a historical twin.
Speaker A: End quote.
Speaker A: What does that mean?
Speaker A: Who knows?
Speaker A: We’ve now had, in the intervening years, courts falling over themselves to try to cherry pick, in a way, from text and history which analogues are going to win.
Speaker A: And then we can just talk about Zachie Rahimi.
Speaker A: Here’s a guy who really likes to shoot his guns so very much.
Speaker A: Assaulted his girlfriend, the mother of his child, threatened to shoot her, leads to a restraining order against him.
Speaker A: Then there’s more shooting.
Speaker A: There’s more guns shooting in convenience stores, shooting in traffic.
Speaker A: He’s just a big shooting guy.
Speaker A: And he claims that the federal law that prevents him from owning a gun violates the second amendment rights under this new test in Bruin.
Speaker A: And the fifth Circuit Court of appeals originally rejects this claim.
Speaker A: But then after Bruin comes down, they love it.
Speaker A: And so this case comes to the court in November, and at that point, it just becomes an amazing, amazing portrait.
Speaker A: Not as good as the Adirondack chair portrait, to be sure, but it’s the majority in Bruin sort of backing into the hedges away from originalism in the manner of Homer J.
Speaker A: Simpson.
Speaker A: Right?
Speaker A: Like, we didn’t mean it.
Speaker A: We didn’t mean it.
Speaker A: We didn’t mean it.
Speaker A: And most of the conservative justices want nothing to do with boosting Zachie Rahimi.
Speaker A: But who does?
Speaker A: Oh, surprise, surprise.
Speaker A: Clarence Thomas and Samuel Lido.
Speaker A: So first, we have a little bit of audio from the oral argument.
Speaker A: Amidst the sound of backing away, here’s Samuel Lido asking how really low and unfair the standard must be in a civil domestic violence protective order setting.
Speaker A: So let’s listen.
Speaker D: We are told in some of the amicus briefs that there are situations in which the family court judge, who has to act quickly and may not have any investigative resources, faces, he said, she said situation.
Speaker D: And the judge just says, well, I’m going to issue an order like this against both of the parties.
Speaker A: And then, of course, we have Clarence Thomas.
Speaker A: In light of everything you and I have just said about fake cases, claiming that the record below was, quote, we.
Speaker D: Have a very thin record, and I’m trying to get a sense of what actually happened in this case.
Speaker A: So I don’t know what else to say about Rahimi other than who knows what the, quote, unquote, originalists are going to do with this, quote, originalist reading of this case.
Speaker A: But the idea that both Thomas and Alito had no trouble getting behind Zachie Rahimi at oral argument in a case that more or less, in my humble opinion, really makes no point other than at the time of the founding or the incorporation of the second amendment against the states, men were very much allowed to beat their wives, and only white guys could own guns.
Speaker A: I’m done.
Speaker C: I mean, that’s exactly it, right?
Speaker C: A faithful application of Clarence Thomas’s test in Bruin leads to a loathsome and vile result here, because, as you said, domestic violence, not a crime in 1791, not a crime through most of the 19th century and in much of the country.
Speaker C: And so there’s no historical analog for this federal law that prohibits people who are under restraining orders for domestic violence from possessing firearms.
Speaker C: That is a conclusion that I think some of the other conservative justices tried to resist.
Speaker C: I think they were doing a kind of duck and cover from Bruin, or I call it cleanup on Isle Bruin.
Speaker C: And I think what Alito and Thomas were doing was trying to find a way around that by poking holes in the existing law rather than going back into history and saying, oh, well, how are we sure that this is really protecting all of the fundamental rights of abusers?
Speaker C: But in the process, I think they kind of showed that they didn’t understand how this law functions.
Speaker C: Surprise, surprise, because the federal law at issue here requires a lot of procedure before an individual can be stripped of their firearm rights.
Speaker C: I mean, it requires notice and hearing and evidence and all of this stuff that was present in this case.
Speaker C: But Clarence Thomas just sort of denounces that as thin as you said, and Alito just sort of analogizes it to he said, she said situations.
Speaker C: And that’s exactly what Judge Ho did on the lower know, the Trump judge who’s been perhaps most radical about Second Amendment rights.
Speaker C: He, you know, in the real world, estranged and bitter wives will lie about abuse in order to gain leverage in custody proceedings and alimony proceedings and child support proceedings.
Speaker C: So we should be very wary of people who accuse their husbands of abuse because they might just be doing it to get more money out of them during the divorce.
Speaker C: I think that that attempt by Judge Ho backfired for most of the justices, but I think Alito and Thomas were the hallelujah choir right there with him.
Speaker C: And it is just more evidence, as if we needed any, that women, especially vulnerable women, abused women, are invisible to some of the justices on this court.
Speaker A: So I think that leads to our final hellscape moment, which for me was, and I think we talked about this a whole bunch at the breakfast table at the end of last term.
Speaker A: But it’s the moment in which Chief Justice John Roberts essentially flips the bird to the Senate Judiciary Committee that is attempting to have an ethics hearing last April.
Speaker A: We’ve talked about a bunch of doctrinal lows, and we should mention the affirmative action decision.
Speaker A: There were some very bad moments.
Speaker A: This wasn’t that.
Speaker A: But if we end where we more or less began, with the fact that this was one of the worst ethics years in the history of the court, I kind of put this at rock bottom, because not only did John Roberts decline to testify at a hearing before the judiciary Committee on Judicial ethics, but he wrote this inane explanation of why he would, in his words, quote, respectfully decline the invitation to show up.
Speaker A: And in this letter to D*** Durbin, he said that.
Speaker A: And this is the part that gets my hackles know.
Speaker A: Appearances by chief justices are exceedingly rare, given concerns about separation of powers, and that he needs to not show up because he needs to make some point about, quote, the importance of preserving judicial independence.
Speaker A: And I think that that letter does two things.
Speaker A: One is, as I’ve said, he makes this faint at the idea that separation of powers and judicial independence means that nobody tells the Supreme Court what to do, which is, by the way, almost verbatim, what Justice Alito said in his Wall Street Journal fawning piece about himself.
Speaker A: But second, and this is the really important thing, it locates John Roberts in the Alito Thomas camp at a moment when he needed to be in the Elena Kagan, even Amy Coney Barrett, as you say, even Brett Kavanaugh camp of we take very seriously public concern about judicial ethics because this year has been a blur of scandals that John Roberts knows are scandals.
Speaker A: Unlike Thomas and Alito, I don’t think he thinks that these gifts and trips and grifts and hangouts with the Koch brothers and their legion admirers, I don’t think he thinks they’re okay.
Speaker A: That letter was a choice to align himself with that view of judicial independence, with that view of separation of powers.
Speaker A: And to me, tell me if I’m overstating this, the choice to not take seriously what has happened at the court in 2023, the choice to associate himself with a critique that he knows not just to be historically flawed.
Speaker A: Right.
Speaker A: Separation of powers has never meant that any institution operates independent of the others.
Speaker A: It means checking and balancing.
Speaker A: Congress has long imposed regulations on the court.
Speaker A: We all know that John Roberts cares and understands deeply how the public’s approval of the court affects the legitimacy of the court.
Speaker A: And his decision last April to align himself with two people who do not care about that, as opposed to the many members of the court who care about it and don’t know what to do about it, was a choice to participate in the declining approval of the court as opposed to staunching the bleeding.
Speaker C: I don’t think you’re wrong.
Speaker C: I think I would just add that the letter bristles with contempt for Congress itself bristles with contempt for the first branch of government, the one that’s supposed to be in the driver’s seat here.
Speaker C: And that historically the court has claimed to respect as the branch that gets things done.
Speaker C: And that includes policy decisions, that includes oversight of the other branches, that has always included oversight of the federal judiciary.
Speaker C: Our friend Steve Lattek has said many times, there is a long and entrenched and rich tradition of Congress regulating the Supreme Court, and of Congress talking to the Supreme Court and having a kind of colloquy, a back and forth with the justices about how the Supreme Court’s docket should be changed, how it should be regulated, how its budget should be altered, what needs to happen for the court to function properly.
Speaker C: Properly, not just in the eyes of the court, but in the eyes of the people’s representatives in Congress.
Speaker C: And that has all come crashing down only over the last few years and decades.
Speaker C: And largely under John Roberts’control, he has held the Supreme Court and the federal judiciary above the other branches.
Speaker C: And when Congress says, I would like you to simply appear before us and speak about this issue that is concerning large swaths of the american people, John Roberts dares to say no, because he recognizes that at the end of the day, Congress switches parties in control.
Speaker C: Republicans will gain the Senate back.
Speaker C: One day, Democrats will have to fight with their colleagues.
Speaker C: But he will still be chief justice.
Speaker C: He will still have a solid conservative majority.
Speaker C: He gets to do what he wants.
Speaker C: And that is another example of a court not acting like a court that I think should concern us all.
Speaker C: It goes beyond the arrogance of turning up your nose at the quote unquote invitation.
Speaker C: I really think it goes to the chief justice’s rather profound contempt for not just this Congress, but for Congress in general.
Speaker C: He views politics as a kind of dirty business that he wants to hold his court above, unable to see somehow that his own court has collapsed into the squabble of partisan politics.
Speaker C: And two of its members are maybe two of the most partisan justices who have ever served in history.
Speaker A: Yeah.
Speaker A: And I think maybe this is the stinky cherry on top.
Speaker A: It’s not just that he’s like, I declined to even show up to tell you to p*** off.
Speaker A: I shall put it in a letter, which, as you said, really just smacks of arrogance.
Speaker A: It’s just a reminder that John Roberts is in, let’s just call it, the untenable position of having two members of his court that he has no control over and who double down in the face of criticism.
Speaker A: And there are, I want to believe, a hundred subtle, soft power ways that he could have gotten ahead of that.
Speaker A: And instead he chose to say, I’m going to defend their indefensible claims.
Speaker A: And as I say, it just to me is the capstone of a year in which, having arrogated unto itself more and more and more power to be the decider of all things and to make up fake tests in which fake plaintiffs win over and over again, it so bespeaks a lack of humility, which was the watchword, remember judicial humility?
Speaker A: Humble umpire, balls and strikes that John Roberts said he brought to the court.
Speaker A: Just disappointing in someone who should know better.
Speaker A: So, listen, Mark, we did not get to a lot of horrible things.
Speaker A: The Clean Water act, as I said, affirmative action.
Speaker A: It’s hard to choose the ten worst things.
Speaker A: And maybe some of these were atmospheric rather than shifts in the legal landscape that are terrible.
Speaker A: But can we please, having promised our listeners some budding green shoot of hope going into 2024, can we find one thing that was good or hopeful about the last 365 days of the US Supreme Court?
Speaker C: I think what really jumps out is that this was the year that Supreme Court reporting changed forever in an amazing and important way.
Speaker C: This was the year that outlets like ProPublica, kind of newcomers to the scene, and the New York Times, the old guard, if you will, decided that the Supreme Court deserves to be treated like a branch of government rather than a temple of mystics, deserves to be investigated and probed like any part of government does, and deserves to be treated skeptically and should be interrogated not just in terms of what its members are doing, but in terms of how it exercises its power, where that power comes from and where it leads.
Speaker C: This was a huge overhaul, I think, of how the media approaches the court viewing the term and its decisions not just as kind of a series of fun little brain puzzles, not just as a handful of blockbusters that’ll have clicky headlines, but as part of an ongoing campaign that is infused through and through with politics, that emerged out of a well funded movement that is tied up in a historic corruption scandal.
Speaker C: And that all of this story has to be told at once.
Speaker C: That you can’t pluck out individual items and pretend as though, for instance, the big tax case, the well, tax case, or the affirmative action decision, or the 303 creative case, that they just emerged out of nowhere.
Speaker C: And now the court has to apply exactly what James Madison would have wanted.
Speaker C: That they are manufactured.
Speaker C: That this court is wielding its power in its very specific, tactical way, that it is departing from long held norms in order to achieve its goals more quickly.
Speaker C: And of course, again, it cannot be repeated enough that some of its members are not doing anything at all.
Speaker C: To even pretend to adhere to the most basic judicial ethics that you can imagine.
Speaker C: All of that reporting was extraordinary.
Speaker C: Its impact is reflected in ongoing public opinion polls of the Supreme Court, which are very low, and it stands to continue into the next year and beyond.
Speaker C: And that makes me really happy, because I do feel like for a long time, Supreme Court coverage had issues without saying too many mean things about too many.
Speaker C: Know, some folks did a great job, but there was a lot of trust in the institution.
Speaker C: There was a lot of naivete about how it operated.
Speaker C: It ended up being almost unseemly, the amount of punches pulled by some of the press coverage.
Speaker C: I think that era has ended, and I am oh so grateful for that.
Speaker A: Amen.
Speaker A: We can probably say explicitly that some of the punch pulling critique was directed at ourselves and the way we covered the court.
Speaker A: So we can just be transparent about that.
Speaker A: And maybe one final little loop, which is a bit esher Staircasey, but I’ll say it anyway.
Speaker A: I think some of the backpedaling that we have seen after that term in 2022, that ended with Dobbs, that ended with Bruin, that ended with the EPA case, coach Kennedy so much, that was a supermajority that largely just didn’t care what the public thought.
Speaker A: I think that some of that Homer Simpson like tiptoe away from the craziness is really well and truly attributable to this kind of skeptical press coverage.
Speaker A: In other words, I think that where you are seeing a little bit of a softening from Amy Coney Barrett, from Justice Kavanaugh, and from the chief justice, it is entirely true.
Speaker A: I think we’ve now made that point multiple times that Justices Thomas and Alito, and often Justice Gorsuch do not care about press critiques.
Speaker A: I think it is at least fair to say that this kind of scrupulous, exacting, demanding press coverage that has emerged and has really changed that sense of the court as an oracle, where we just take dictation and humbly pray that the justices like the way we told their stories.
Speaker A: I think that that is actually affecting the behavior of some of the justices who are in a position to not be a party to blowing up the last vestiges of the court’s integrity.
Speaker A: So not just the journalism, possibly some of the justices themselves, that are changing, I think, slightly in response to a lack of credulous reporting and credulous public acceptance of that reporting.
Speaker C: I think one perfect example here is the shadow know.
Speaker C: There was so much criticism of the court’s abuse of the shadow docket, and in pretty clear response, Roberts and then Kavanaugh and Barrett eventually pulled back.
Speaker C: And I really think that was in large part due to the sudden emergence of genuinely skeptical, thoughtful, hard hitting coverage of that issue.
Speaker C: And I think it’s true of the shadow jocket and of so much else that the court has been up to, especially its substantive decisions, which have been, while often very far right, sometimes not as extreme as expected.
Speaker C: And in the occasional case like the Voting Rights act decision, downright good.
Speaker C: I really do think that the justices have an eye on their opinion polls, they have an eye on the coverage, and they realize that with the world finally watching, they need to get their house in order.
Speaker A: Mark, Joseph Stern covers the Supreme Court and the law and democracy and so much else for us at Slate.
Speaker A: Mark, I wish you a happy, happy 2024.
Speaker A: And I imagine, based on our last show with Jeremy about all the ways that the law of Trump and the law of the land are about to crash into each other, that you and I will be talking a whole lot more about the Supreme Court in 2024.
Speaker C: It may be the only good thing about my 2024, aside from my wonderful family, but I am happy to be sharing whatever misery is coming our way.
Speaker A: With you, Dahlia, and that is a wrap for this episode of Amicus.
Speaker A: Thank you so much for listening in.
Speaker A: Thank you so much for your letters and your questions and your comments.
Speaker A: You can always keep in touch at amicus@slate.com.
Speaker A: Or you can find us at amicuspodcast.
Speaker A: Sarah Burningham is Amicus’senior producer Alicia Montgomery is vice president of audio at Slate, Susan Matthews is Slate’s executive editor and Ben Richmond is our senior director of operations.
Speaker A: We will be back with you with another episode of Amicus next week.
Speaker A: And until then, we wish you a happy new year.
Speaker A: And hang on in there.
