Hello friends, welcome. Delighted you're with me today. My guest is Sarah Isker. Sarah is a longtime legal expert, a legal commentator. She has a podcast about this from court called advisory opinions. And I just love this conversation. I enjoy having a nice little good faith back and forth about the Supreme Court. That just like gets all my juice is flowing.
I think you're like this conversation with just lively and spirited, but is also done in a way where people can, you know, push back on each other's ideas and still be friends afterwards, and still send each other a text and be like, loved to the conversation, so good. You know what I'm saying? So, let's dive in. I'm Sharon Nickman, and here's where it gets interesting.
There's just like so much going on right now. Obviously, this is an incredibly busy time in the country. So many hearings, so many important decisions. There just seems to be a lot happening, plus half the country is sick with some kind of virus, Sarah. It's true. Half of my household, in fact. And I think what people feel is that more and more the Supreme Court is at the center of these political debates. And there is something a little bit new about that because you want to back up even 20 years ago,
Congress and the president were the focus of our political debates. So why this mostly sudden change where we're constantly talking about the Supreme Court and the Supreme Court is really in all of these headlines, I would argue goes back to sort of the end of the Bush era at the beginning of President Obama's presidency when they started getting really frustrated that Congress wasn't doing enough and you had all this political pressure building up from their voters that were like, do something about any number of problems, you know, health care, immigration, you name it.
And so what President Obama said, if you remember in 2014, was I've got a pen and a phone, and if Congress won't do parentheses what I want and parentheses, then I'll take care of it from here. And so we had this big rise in executive orders, and what that means is that you have the Supreme Court basically reffing who's supposed to do this, who gets to decide.
is that the president, because the Constitution's pretty clear that like the president can execute the laws, but the laws are supposed to come from Congress. And what started to happen was that every president would come in and basically reset the laws. So something that was a crime under Obama wouldn't be a crime under Trump, would be a different crime with different regulations under President Biden. And so the Supreme Court is constantly now in these headlines trying to ref who gets to decide the majority, the president,
the minority or Congress or nobody. And so it becomes really then important. Who are these Supreme Court justices? How are they deciding these things? And I think that's why you see such a focus on the justices, the institution and those headlines. And also over the last handful of years,
there's been a tremendous amount of focus on who is on the court. You know, like when I was going to college, which was apparently back in the Stone Age, only people who really paid attention to these things, only people who were studying constitutional law or political science could even name more than two justices on the court. You knew about Ruth Bader Ginsburg.
That's really new. I feel like that has shifted and more Americans could name more members of the court. Certainly, probably not all nine, but they'd probably be like Clarence Thomas. You know what I mean? They would probably be able to name at least a couple people on the court, especially with all of the scrutiny on Thomas and Alito and
billionaires and those kind of stories have really taken the spotlight that, as you pointed out, used to be on members of Congress and shifted it to the court, the Kavanaugh hearings, the potential assassination of Brett Kavanaugh, with the people outside his home, et cetera. All of these things have created this tremendous amount of scrutiny on the court that perhaps was not there 25 years ago. And then, correspondingly,
approval of the Supreme Court has plummeted. People don't think they have their best interests at heart. And I'd love to hear your talk about this. It's difficult, I think, to see people being allowed to get away with things that they know as a normal average individual that they would never be allowed to get away with.
I would love to hear you talk a little bit more about why public opinion of the court has plummeted from your perspective. What does it look like from where you sit? So largely speaking, all of our institutions, when they're in the spotlight, when they become the focus of our politics, lose approval, lose trust. The more we can ignore them, probably the less they're doing and the less annoying they are. Right.
There's a few reasons for that one. Transparency is not always a good word. You know, the introduction of C-SPAN into Congress probably wasn't actually great. It certainly wasn't great for what we think of Congress. Now, the flip side of that is maybe we should have been watching the whole time and we would have known what bad guys were in Congress. But generally speaking, I think we have found that transparency, there's a little bit of a Heisenberg principle here, right? If you're watching, it's not the same behavior.
And so in Congress, for instance, there used to be real debates in the Senate. And then we introduced cameras. And now there aren't anymore. Now it's just press conferences. Right. Because you're not going to have a real debate with someone when everyone's watching. You can't really make compromise. You can't really discuss what you need to get what they need. And so all that log-rolling and everything stopped. That's why Congress stopped doing a lot of what it was supposed to be doing. So that's one thing.
just transparency on the court, focus on the court, you end up being part of a political conversation, and then everyone retreats to their sides. When you actually dig into the numbers of why support in the court has fallen, basically, if there's a Republican in office, Democrats don't approve of the Supreme Court. If there's a Democrat in the presidency, Republicans don't approve of the Supreme Court, even though that's irrelevant to who is on the Supreme Court. So it's really become this political football. That's answer number one.
Answer number two is that the court by its nature is supposed to be a counter-majoritarian institution, meaning that if we could just leave everything up to the majority, you wouldn't need a Supreme Court. The majority would get its way. So much of the Constitution is to prevent the majority from getting its way. It's meant to have the separation of power so that one checks the other, but think about the Bill of Rights. You don't need a First Amendment to protect popular speech to protect speech that the majority of Americans approve of.
We have a First Amendment to protect really unpopular speech. Same with criminal process, 4th, 5th, 6th Amendment, 8th Amendment, 7th Amendment, mostly. You know, criminal defendants aren't very popular people. The majority would like string them up on a flagpole out in the courthouse. We just beat each house. That's right. The court is supposed to be counter-majoritarian, to stand up to the majority and rule against the majority to protect those minority interests, whatever they are. Minority religion, minority speech, unpopular people.
Well, guess what? The institution that constantly tells the majority know is also not going to be a very popular institution if the majority is paying attention. And in fact, I would argue one of the great interesting parts of the Supreme Court. For one, think about how they're appointed. They're appointed by presidents, but it's sort of then a lagging indicator because they stay on the court a lot longer.
In the most popular Supreme Court opinions, historically, think Brown be board of education, they were standing up against the majority. Those were popularly passed laws to have segregation, Jim Crow laws in the South, and the court was saying no to the majority.
Historically, the cases that we look back on with the most disdain, Korematsu, Plessy, Dred Scott, obviously, are the cases where the court was actually leaning into the majority, giving into the majority or thinking that they could handle the political moment and solve the problem better than any other branch, which isn't their job. So I also think that's this great irony when you look at the Supreme Court as an institution. It's counter-majoritarian,
but it also is what gives it legitimacy over time, over long stretches of time, even if it doesn't in the moment. This is an interesting thing to think about, too. Is the counter-majoritarian nature of the court is that causation or correlation? When you're talking about the least popular decisions versus the most popular decisions and their impact on the sweep of history, is it correlation or causation? You know, you're thinking about Korematsu. It was the idea of like, we need to, in turn,
or incarcerate Americans of Japanese ancestry for our own quote-unquote security at the time that was not that unpopular of an idea. You're exactly right. It was giving people permission to live out the prejudice that they were feeling sort of in their heart.
And a fear. Yeah, a fear. You look wrong. I'm scared of you. I can't distinguish between an enemy and a non-enemy. Let's just put you all in this prison camp. And so it was giving legitimacy to something people were feeling anyway. And now, of course, we look back on that and we're like, it was terrible. How could we have justified that? What were we thinking?
So technically, Korematsu has never been overturned because there's never been another internment case. That's right. Yes. However, the Supreme Court announced that Korematsu was in effect overturned in the Trump travel ban case. That's right. That's exactly right. Yes. They were like, we've really got it wrong in the past, you guys. We can't do that again. Yeah. So I'm wondering, do you view it as causation or correlation? The fact that it is counter-majoritarian, does that necessarily make it in the long sweep of history a better decision?
Are we going to look at some of the more recent counter-majoritarian decisions? The majority of Americans think that abortion should be federally legal with some restrictions.
Not everybody do everything they want. I'm not saying that's what women do, but you know what I'm saying? Not a free-for-all, but with some restrictions, abortion should be legal nationwide. The majority of Americans think that. Yeah. I mean, abortion's where this is all headed, right? That's what this conversation is about. It's what it's been about for 50 years. And one could argue that the worst decision for the Supreme Court is an institution.
was Roe v. Wade. Now Ruth Bader Ginsburg criticized Roe v. Wade. I mean, whatever you may think about abortion or even the constitutionality of abortion, Roe v. Wade itself is a pretty indefensible decision. You basically have seven members of the court.
kind of making up this trimester thing, sticking themselves into this issue that the court arguably had no real business being in. And, you know, Justice Kagan, when she's 22 years old before she goes to law school, this is circa 1983, let's say.
She writes her master's thesis, of course, at Oxford, because she's a freaking genius. And it's all about the exclusionary rule. So the police come into your house, they don't have a warrant, and they get evidence of a crime. And then you were like, hey, you didn't have a warrant. They can't use that against you in trial. They weren't supposed to have the evidence in the first place. So even though you may be totally guilty, we've decided they still can't use that evidence.
And she writes her whole master's thesis about why precedence stick and why they fall apart using this case map the Ohio as an example of precedence that fall apart over time and have all these exceptions built into the exclusionary rule. Oh, well, if you would have found it anyway, it doesn't matter that that time you found it without a warrant, for instance. And her point was if you build it on solid ground,
that is accepted at the time, that's when counter-majoritarianism is at its strongest, if you will. But if you don't know why you're doing it, and it's just sort of masquerading as politics, but you're like putting a little legal gloss over it, that's when your president's gonna be at its weakest. So in that exclusionary rule case, there were three different cases leading up to MAP and then MAP, the fourth case. And they all found different parts of the Constitution to put this exclusionary rule.
Roe v. Wade isn't that different, right? They were like, well, it might be the Ninth Amendment. It could be the pernumbers and emanations of the Fourth Amendment and the First Amendment, you know, privacy-ish stuff happening. I mean, we all learned the word pernumbers and emanations. Specifically because of this case. Yes. And you've never used it again.
I use it in no other context, except ironically to make joke to other lawyers. The Supreme Court, what they did was they took abortion away from the majority, in a sense. There could be no laws on abortion, Congress couldn't do anything, states couldn't do anything, and where something like that had worked in a case like Brown v. Board of Education, and where it would work later in Obergefell with gay marriage.
just didn't happen with abortion. Abortion was frozen in time legally, but then the politics focused on it. So our two political parties, for instance, were not divided along an abortion line. When the time Roe v. Wade was decided, I mean, it was about 50-50, basically. Republicans were about 50-50. Democrats were about 50-50, who was pro-life, who was pro-choice. It then totally self-sorted over the next 40 years. Republicans for choice in the 1990s was one of the biggest packs on the Republican side.
Now, I might get this one or two off, but I believe there's zero pro-life Democrats in the Senate. There is one pro-life Democrat in the House. And I think there are two pro-choice Republicans in the Senate and none in the House. I may, again, have that slightly off, but basically it is totally sorted on that. So what the Supreme Court has done in Dobbs is say we're unfreezing it. We're putting it back to the political process because clearly,
The legal solution to this quote unquote solves nothing. It actually made the politics so much worse so that abortion became the single litmus test for running for office for becoming a judge for all this stuff. I think time will tell whether that turned out to be correct. I will say that 50 years of Roe v. Wade did not seem to be working for anyone. And so
Far be it from me to have the arrogance to say that I know what future generations will think. I spend a lot of time thinking about what we do now that future generations will find odious. I mean, even think just 10 years ago, we can name things that are quote unquote problematic that we took for granted. So I don't presume to know.
But I do have hope that now that we see it return to the political arena, to your point, the pro-choice side, and those terms are so loosey-goosey and sort of mean different things to different people, but by and large, the pro-choice side is winning politically, and it's lowering the temperature, I would argue. And that probably will be a good thing if the political parties can be about something other than abortion,
whether it's immigration or the size of government or some foreign policy issue. That's probably healthier.
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But I would push back against what you're saying a little bit. I hear what you're saying that, yeah, can we talk about something other than abortion? And you saw this in the Nikki Haley campaign, like, can we stop demonizing the issue of abortion and acknowledge? And just vote on it. Yeah, and just, yeah, can we acknowledge that it's complicated and people make decisions for different reasons and not just have it be so black and white? Like you saw that she tried to gain traction with that sort of rhetoric.
But I think a lot of people do feel like this is worse. I think a lot of people do feel like I live in Texas and it's worse for me now, you know, like to find worse, worse from a, you know, a broad political perspective, maybe better in the long run, but worse in the short term for people who feel like their rights have been restricted, they would not say it's better.
I want to be clear. I am talking about sort of institutional level, political level, better worse, how the branches are supposed to interact with each other. I would say from a personal level, because of course I totally understand that, yeah, if you live in Texas, you feel really differently about this than if you live in New York, for instance.
Or Kentucky, Michigan, these red or purple states that have voted for pro-choice measures, Arizona, Florida, but Texas did not. Let's let this shake out a little, right? Let's put some of that political pressure that I think will come from that. We already saw it happen in Alabama, right? The court said, hey, it looks to us like the best reading is that you banned IVF.
And then immediately within three weeks, the Alabama legislature met and was like, no, no, no, no, sorry, sorry. We definitely didn't mean to ban IVF because it was so wildly politically unpopular. So let's give this a few years to shake out. I know that's cold comfort to people who are feeling that now. I do understand that. But in terms of who to blame for that, I would not blame this Supreme Court who did Dobbs. I would blame the Roe v. Wade court.
that kind of messed this up in the first place. The Supreme Court then tried to fix it in Planned Parenthood versus Casey, which overturned Roe v. Wade in everything, but name only. They basically kept having to say, yeah, everything that we said in Roe v. Wade, we're not going to keep, except we're definitely not overturning Roe v. Wade, y'all. So like, we have been struggling with this legally for a long time. Don't blame the last people to hold the ball, if you will. Well, but people do, but they do. True.
True. They do. They do. And it's really, like you said, it's cold comfort when you read some of the language about there's no long history and tradition of abortion, blah, blah, blah. And again, I'm not arguing a pro-choice position here. I'm just giving voice to what people tell me all the time. Yeah. Worship has always existed.
The idea that it's like not in our history and tradition, that seems like a white man with no knowledge of women's health, making pronouncements of which he clearly does not understand. It's like the court admits we are not experts on the internet. You know, like they are literally like, we don't know about the interwebs. Okay. Don't ask us. You know, like they've said that in so many words.
We're not interested in the internet. Oh, yes, this came in literally, quote, she said, yes, we are not the foremost experts on the internet. Exactly. Like we don't know. And so it almost seems to many people like the same kind of idea of like Alito, like you know about the history and tradition of women's health issues. You do or supposed to trust you in this regard. That's how it seems to many, if not most of the women of the United States.
Okay. So I would not have written the opinion like Justice Alito did, right? Let me tackle two things that I think are of interest to this point. Yeah. One is the idea of unenumerated rights. So nobody's arguing that abortion is an enumerated right in the Constitution, right? There's nothing like the First Amendment that says, you know, religion and speech and proportion. It's not in there. Okay. Right. So we know it's not an enumerated right. So then we're talking about what are our unenumerated rights?
in the constitution. This was a problem that the founders absolutely were very focused on because, remember, there originally wasn't a bill of rights. This was the anti-federalist position. Federal farmer is like, I am deeply concerned that without a bill of rights, these people are going to do whatever the hell they want. And I'm uncomfortable with that federal farmer and some of the other anti-federalists, Brutus, etc.
win over a lot of the Hamilton Madison types who come around to a bill of rights. Now, maybe they came around to it out of political expediency, like they were going to lose the fight, so they might as well be part of the ones writing it. But regardless, one of the big concerns from the federalist pushing back is if we do a bill of rights like you want.
We can't list everything. And what's going to happen about those unenumerated rights? So from the beginning, we've known about this problem that there are unenumerated rights. And by definition, they're not listed. And who's going to decide what those are? So here's what I would say to the people who are like, abortion is an unenumerated right. There are unenumerated rights. If you want the Supreme Court deciding what those are, then there's going to be a whole lot of unenumerated rights, many of which you will not like.
Right? So, for instance, they could just as easily find an unenumerated right to a fetus having a right to life as an unenumerated right to abortion. So, basically through our history, we have held very tightly on those unenumerated rights. The only two that have truly been recognized are the right to raise your children and the right to travel. That's it. Those are our only unenumerated rights.
I think that's probably too strict. But what we've said over time is that it's much better if we go through an amendment process, so we all can agree on that unenumerated right that we should have put in there, rather than have these nine platonic guardians who are unelected and who aren't really removable, finding all sorts of new rights all over the place. So that's the problem with the unenumerated rights part, that abortion, maybe it was in there the whole time.
Probably not though. Okay, the second issue is precedent. So like overturning Roe v. Wade. I think precedent is a fascinating part of the Supreme Court because on the one hand, you don't want them just flip flopping on precedent. We call it starry decisis, right? To let the things stand. So once the Supreme Court's decided something, there's a really strong presumption that it's decided. We're not revisiting it because it would just be flip flopping all over the place. People wouldn't know what the law was. The court would see more political. It would hurt the institution. But what do you do about Plessy?
So the Plessy decision is 7-1 Supreme Court decision upholding Louisiana's separate car act, which of course was a separate but equal train car act. It's a fascinating test case. It's all set up. Homer Plessy is an octaroon, as they were called at the time. He is 1-8th black. That means one grandparent. I mean, it's the whole thing. Amazing. They even hire a private police officer to arrest him because they're worried the real police won't do it.
But the Supreme Court upholds that. If you say that you always have to uphold precedent, how are you overturning Plessy? 50 years later when it comes to Brown. And more to the point, the only reason Story Decisive is an interesting issue at all is when you're upholding a decision that you believe was wrongly decided, but you're going to uphold it anyway for the sake of stability, right? Because it was correctly decided you don't need precedent. That's irrelevant. You just decided on your own and you come to the same conclusion.
You need the theory of precedent, the idea of starry decisis for the incorrectly decided decisions that we're going to keep anyway for that stability argument. And so that's where you get the Plessy problem, right? And so Roe v. Wade didn't create stability. Nobody was really relying on it in that real sense. And so I do think it looks more like Plessy if you believe it was wrongly decided like Ruth Bader Ginsburg did. And I mean, Roe itself.
Not Planned Parenthood versus Casey. I think that's actually a pretty different and interesting case. But I guess my overall point to people is this stuff is really interesting and it's much more complicated than the headlines of I'm pro choice and I hate the Supreme Court or I'm pro life and I love the Supreme Court.
because whichever side you're on, the way the Supreme Court decided this will not necessarily turn out the way you want on some other issue or some other even abortion case. As we've already seen with the Idaho abortion with Miffa Press Stone, the Supreme Court again and again has been ruling the other way on the cases that have come up since Dobbs, but those haven't generated the headlines.
I want to change gears a little bit. I know we could probably spend this whole time talking about abortion because Americans are into that, right? Other countries are like, why are you arguing about this? I would argue because the Supreme Court took it out of that political context and we're basically a Encino man. We have defrosted in 2022 from 1973. So give it some time. I think we're going to be talking about abortion a lot less in five years.
But one could also argue, Sarah, that we're going to be talking about it less because the gerrymandered state legislatures have taken the power away from the people, consolidated their own political power to remain in power, and people have absolutely no political recourse.
Isn't that going to be a big reason why we're not talking about it? Only about half of the states allow for citizen ballot initiatives, for example. Only about half of them do. The other half are like, sorry, there's nothing you can do. Vote differently in November in our strongly gerrymandered contest in which you have basically no hope of electing somebody different. Aren't we going to be talking about it less because people have less power to actually change anything?
I think there are huge problems with our elections right now. Gerrymandering is pretty far down on my list, and I'll tell you why. The real problem is we have become more polarized, we have self-sorted, and then we don't vote in primaries, and then you can get sort of down to the gerrymandering problem, but gerrymandering and theory shouldn't cause many of the problems that you're pointing to, right? What's changed to me is a couple things. One,
campaign financial form, something that I was super in favor of back in 2002 when they passed it, and they decided all these horrible, unintended consequences. We wanted to get big money out of politics because big donors didn't represent normal Americans. They don't have the same interest. That is true. You know who also definitely doesn't have the same interest?
small dollar donors. They're less than 2% of the population. They are inclined to give that $5 and $20 because they saw something on social media or cable news that outraged them. They are turned on by anger, outrage, negative partisanship, meaning it's not that they're for something, it's that they're against the other guy. They're very convinced that the other side is out to get them, ruin their way of life, hates them. And so we create this negative polarization where Americans actually hate each other. I think there is a direct through line
to the campaign financial reform changes that we made, that then leads to the far more partisan Congress that we have now, because people are more worried about primaries than they are about the general election. That's not a gerrymandering problem if you're more worried about the primary. And this is both sides. And so we went from a place where incumbent protection, I think, was one of the biggest problems in Congress. That's a gerrymandering problem, right?
where the incumbent's always going to win because the district is plus seven. We've gone from that to a primary problem, so that each side of the house, Republican and Democrat, becomes more and more extreme as they're trying to prevent their flank from priming them, or the flank does primary them and wins, and that moves the house.
farther and farther to those extremes. So if you want to prevent this stuff, go vote in primaries. And we should change the way primaries work, rank choice voting, all of those things haven't been shown to be a silver bullet. But I'll tell you, they're at least like a lead bullet. So yeah, we should be experimenting a lot more with how to have better elections.
And gerrymandering is not a problem. I'm not totally disagreeing with you. But it's pretty far down on my list of democracy eroding issues right now. But isn't it true that more than 90% of races in the country are not competitive?
in the general election. That's not true for the primary. But what ends up happening in the primary is whoever wins the primary is going to win the general election. Correct. Because this district is gerrymandered so that only Democrats will win it or only Republicans will win it. But the point is yes, we have self-sorted. So people blame gerrymandering when in fact a lot of people move next to neighbors that they agree with politically or start to agree with their neighbors politically because they talk politics with them. And that's also a relatively new phenomenon.
One of the things that's changed about gerrymandering though is that we've gotten much better at identifying voters. Our technology makes it so that you can type in your address and a company can just tell you with a high degree of certainty who you're likely to vote for.
And those computers that do the line drawing can do it down to the house and the block to make sure they know exactly where the voters are. That is a huge problem. Again, it's not that I don't think gerrymandering is a problem. I would fix other things first. I don't like the gerrymandering. But I also think, I mean, look at our two parties shifting right now. I mean, the Republican Party doesn't stand for half the issues it stood for 10 years ago and like none of the issues that Reagan stood for. So as the party shift,
If gerrymandering were the issue, in theory, the gerrymandering should fall apart for Republicans. But it doesn't because we're so tribal and we're so team oriented right now that you just go along with the title of Republican. gerrymandering again, not good. I don't like it, but it's a chicken and egg issue.
These places are being gerrymandered because we've gerrymandered ourselves. I will also note one of the other changes is a lot of states have adopted either bipartisan redistricting commissions or nonpartisan redistricting commissions, and it hasn't fixed it at all.
Okay, let's change gears because, you know, like new president returning to office, people are very curious about what the future of the court is going to be. A lot of people were like, listen, Sonia Sotomayor, you should just retire now and give Biden a chance to replace you. What if you die? They don't want to repeat a Ruth Bader Ginsburg. They feel real salty.
about what happened with Merrick Garland. They feel real salty about the fact that Obama never got to have his pick come before the Senate because, you know, quote, unquote, election year. And yet they were willing to rush Amy Coney Barrett through the process and like snip, snip, snip, snap. It does not seem fair. So a lot of Democrats were kind of maybe gently, I couldn't say for sure, leaning on Sonia Sotomayor. Please just go ahead and retire before Biden leaves, blah, blah, blah.
She didn't want to. She didn't want to. She's going to be in office for an undefined period of time. Democrats are concerned about who is Trump going to replace potentially her. Thomas could also retire. Lido could also retire. In fact, it's more likely that they might retire now that Trump is coming back into office. They want to be replaced by Trump and not by somebody else. What do you see as potentially? I'm asking you to prognosticate here, of course, potentially changes in personnel.
for lack of a better term. The personnel of the Supreme Court, who do you think is likely to retire or potentially have to be replaced over the next four years? I will give you an insight into what sort of conservative legal world thinks is the most likely Supreme Court come 2029. So the day that Trump leaves office in 2029.
exactly the Supreme Court we have now. They do not think that Thomas and Alito will retire. He's sticking. And Sonya Sotomayor obviously will not retire by choice. And yeah, she's pretty young. I get that she has diabetes. But like, get over it. That's very different than the Ruth Bader Ginsburg issue. Ruth Bader Ginsburg had recurring cancer. And still, I actually believe that the institution of the Supreme Court is far better off when we don't have strategic retirements.
There's some things that can't be helped. Sandra Day O'Connor's husband, for instance, was suffering from dementia. She wanted to leave the court to spend their final years together. She had to retire at some point. She actually had wanted to retire in 2001, whoever won the presidency between Bush and Gore. When then Bush v. Gore happened and she voted with the majority, which put Bush into office.
She decided she could not retire under Bush because she had helped put him into office. So, in fact, she waited until an intervening election and didn't retire until after the 2004 election. And, of course, she retired in June, announced her retirement in June. George W. Bush announced that John Roberts would be his pick for Associate Justice to replace her. Then, Rehnquist died suddenly in September.
John Roberts never even had his hearing for associate justice. He went straight to chief justice and was confirmed to that. Then you had Harriet Myers who failed bit of a disaster. Yeah, bit of a disaster there. It's all to say like justices who try to overly plan these things out don't do very well. Chief Justice Warren announced his retirement at the end of LBJ's term when it looked like
Richard Nixon was gonna win, right? Remember LBJ says he's not gonna run again. And so Warren's like, man, better get out while I can. This does not look good for Democrats. And he tried to strategically retire. I would argue that Warren did enormous damage to the court during his time as chief justice, even though I agree with so many of the Warren court decisions. But by being so forward and so political, he had really politicized the court. Then he retires in this very political manner. LBJ picks Abe Fortis to replace him as chief justice.
Abe Fortis runs into a big brick wall and LBJ can't get it through and time runs out. And so Nixon gets to replace Earl Warren, not LBJ. So the whole thing backfired anyway, which is all to say, I don't know. Everyone in DC thinks they're playing five-dimensional chess. You're not. You're playing checkers at best. Make the next move. Don't try to think five moves ahead. It's not how this game works.
But wait a second, five-dimensional chess. What about all of the deep state, Sarah? What about all of these people? What about QAnon? What about the five-dimensional chess that some person at the Department of Energy is playing? I'm teasing, but you know what I mean? I'm a member of the deep state, according to Cash Patel. I am on his enemies list, so maybe I have another person to ask about that. It's probably just a matter of time before I am as well.
I was never at the DOJ, so maybe not. Maybe I'm flying below the radar here. I have been accused of treason, the only crime defined in the Constitution. So it's very cool. We should get you an award. You have an owl statue. Now you need, I have an eagle statue. Here we go. I award you a golden eagle, Sarah.
Cash Patel thinks you're a traitor, you deserve a golden eagle. Thank you. That's an award you've earned. So you think we're sticking with what you got. Unless somebody kicks it, unless somebody dies, you do not. It's the most likely outcome. I think, okay, so that's the most likely outcome. The next most likely outcome is that Alito leaves and everyone else stays. The next most likely outcome, I think, is that Alito and Thomas leave. And the next would be something to do with someone's health, although, again,
I don't know that I'd say that Sotomayor is the most likely. Thomas has a health incident. A bus hits someone. There is some sort of violence. I mean, that Kavanaugh assassination attempt didn't get the attention that I think it deserved from a political violence standpoint of just how close we came to something that would have really torn the country apart. That guy was armed to the teeth. He had a plan.
He had flown across the country, a lot of intentionality. A lot of intentionality and but for the grace of God, he called his sister and told her what he was about to do, and she convinced him to call the police and turn himself in. Now, there were also marshals who had seen him at that point outside Kavanaugh's house. I'm not saying that it was going to happen, but that should really scare us and have us all take a moment to say like, huh, I don't know, maybe we shouldn't have protesting at people's homes.
You know, there's lots of places to protest. And protesting at people's homes maybe makes it harder to prevent the crazies. Yeah, I think that's reasonable. Nobody's preventing you from standing out in front of the Supreme Court building on one of the streets saying what you have to say, holding up your signs, doing all that you get on the news. That is the most American thing you can do. Tell me who you think. Well, let's say somebody does leave and Trump has the opportunity to replace another justice. Who's on his shortlist as of this moment?
Okay, so I have called these the normie shortlist and the not normie shortlist. The normie shortlist is that he picks someone who looks like what a Supreme Court justice would pick under any other president, any other Republican president, let's say. In that case, you're looking at Amulthapar on the Sixth Circuit, Judge Jim Ho on the Fifth Circuit, Judge Andy Oldham on the Fifth Circuit, who happens to be a former Alito clerk, by the way,
So if Justice Alito were to leave, I think Judge Oldham. I actually don't like this, but for the last few iterations, they have looked for someone to replace the judge who retired by looking at their clerks.
I mean, talk about elite, right? Like six of the current nine justices clerked on the Supreme Court. That's not a lot of diversity of experience. When you look back at like the Warren Court, the diversity of experience on the Warren Court was kind of bananas compared to career jurists that we have on the court today.
We have professionalized being on the Supreme Court and really changed how one decides to be on the Supreme Court. There's like this path that you can follow now to be on the Supreme Court. Now, I will say from a different diversity standpoint, judge the par and judge Ho would be the first Asian Americans on the court. So that would be a first in a different way.
Those would be the three, I think, at the top of the short list for that normie list. There's some that are on that list that are maybe more dark horses, Judge Lisa Branch on the 11th Circuit, Judge Patrick Boumate on the 9th Circuit. You know, there's more names I could show you, but.
Let's move on to the bonkers list because that's the list that people have fun with, right? That's your list with Judge Eileen Cannon, the district judge down in Florida who was on Trump's classified documents case where they're just like, she'll rule the right way because really what conservatives have always looked for is process over outcome because you don't know what the case will be in 15 years when that person's still on the court. It'll be a totally different topic. And so you pick someone for the outcomes you want now
But you don't know the outcomes that you'll want in 15 years of the topic, so you want someone who has the right process, because you hope they'll use that process in 15 years on whatever the topic may be. But what you see right now within Republican Party and even this growing movement within the legal conservative side is F process, we want the outcome. I would say Eileen Cannon is the most short-sighted pick because so far the only outcome that we've seen is
She votes for Trump. That guy's going to be in office for like a hot second in the grand scheme of the Supreme Court tenure, I'll say. But nevertheless, that does seem to be something that they're very interested in, this idea that you'll vote the right way, whatever that right way may be. So look, you can look at all sorts of people for that. Pam Bondi, as the attorney general, could go up. John Sauer, the solicitor general who defended him in the immunity case,
There's Jonathan Mitchell, who has been mentioned on that list. He defended Trump in the disqualification case. There are plenty of lawyers on Trump's team that are qualified to be on the Supreme Court. And I think I use that term a little differently than others. I don't mean that means I agree with them. That doesn't mean I want them to be on the Supreme Court. I was actually one of the people who spoke in favor of Justice Elena Kagan's confirmation back during the Obama administration, even though I was a Republican operative.
because I said she was qualified to serve on the Supreme Court. This caused a lot of problems at the times, but obviously she was qualified. That's not even really a question, but it is now in our partisan moment where people think qualified means agrees with me. Right. That's not my definition. Right. Right. Or something is true if I agree with it.
That's what we're operating on with here. It's true. I like it and it's true. I don't like it. You're a liar. In a bad person. You're a traitor. You're committing treason. You're the deep state. You're going straight to hell. Do not pass go. I disagree with you.
Yeah, that's where we are. We really could just keep doing this and just keep going back and forth. What about this? And what are your thoughts about this? If there was one thing that you could share with the listener, that you want them to think about as we're heading into the second Trump term, when it comes to the courts at large, to the judicial branch, to the Supreme Court, what is something you would share with people as we are approaching this change in administration?
Yeah, I get so frustrated with the headlines because we haven't figured out a way to write headlines about the Supreme Court. You know, court strikes down bump stock ban. Well, the actual headline should have read, court says only Congress can change criminal laws.
At any point, Congress can do almost everything we've talked about. Student loan, debt relief, gun control, all of that stuff. Abortion. But instead, the headline makes it sound like one team wins, one team loses, and that it was just the same as an election. And just the Supreme Court decided it through their own election process when that's not the case. And if you don't like Donald Trump, you should be thrilled with all of these cases of late where the Supreme Court has been reigning in presidential power.
So, Chevron was overturned, in this case, called Loperbright. And the left freaked out, and I was like, wait, you're the one who should be cheering the loudest, because what this means is that Donald Trump can't unilaterally change the law for four years. He can't make new crimes. He can't get rid of old crimes.
If you are ever voting against a president who's won, we should want less power in the presidency and more power in Congress. And I think that's where the court is headed. So my suggestion for those who are skeptical of the court, concerned about the court, is dig in that one layer past the headlines. Listen to a Supreme Court argument. The one I'm recommending, I have already named my argument of the year, which we're only halfway through the term. So I'm a bit premature, but I think I'm going to stick by it.
And it's this case called Thompson v. United States. It is a question of whether when someone says something false versus when someone says something that's misleading. If the statute only says false, what exactly does that encompass? How misleading can something be where it's no longer false and only misleading?
and how misleading can something be until it becomes false. It was the most fun two hours you can spend with nine Supreme Court justices. It's called Thompson to United States. You can get the oral argument, audio or transcript on supremecourt.gov. So if you are interested in doing some of this diving a little deeper, start there. I think you'll understand a lot more about what the Supreme Court actually does.
I love it. Sarah, where can people find you? I have a podcast on the law with New York Times columnist David French called advisory opinions. I am also on left right and center on a lot of local NPR stations and on the dispatch podcast and ABC News contributor.
I love listening to your podcasts. I think it's fantastic. You're so good at it. I'm so happy to have you here today and hopefully you'll come back. Sharon, I'd love to be here. I would love to come talk Supreme Court all the time with you. These are the most fun conversations of two people of good faith trying to grapple with hard stuff. Totally agree. Thanks, Sarah.
Thank you so much for listening to Here's Where It Gets Interesting. If you enjoyed today's episode, would you consider sharing or subscribing to this show? That helps podcasters out so much. I'm your host and executive producer Sharon McMahon. Our supervising producer is Melanie Buckparks and our audio producer is Craig Thompson. We'll see you soon.
