The Supreme Court Sucks. But at Least We Can Talk to Leah Litman About It!

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:58 Thomas: Hello and welcome to Opening Arguments. This is episode 1157. I'm your host, Thomas Smith, and joining me shortly is Matt Cameron on the other side of the break because we've got a really fun one. We've got an interview that I'm so excited about. Leah Littman's on the show. I've been a long -time listener of Strict Scrutiny and just really excited to speak to professor and podcast host Leah Lttman, who now also has a book coming out. It's called Lawless, How the Supreme Court Came to Run on Conservative Grievance, Fringe Theories, and Bad Vibes. And look, I'm going to level with you. I'm gonna be honest with you I'm usually a little bit hesitant to grab the folks promoting books who are going on all the shows at once I tend to be hesitant about that because there's like eight other shows that already have Leah Lippman on them right now because of this book But I absolutely make an exception when it's a chance to talk to somebody that I've been a big fan of for a long time So more than happy to have any excuse to get Leah Littman on the show she's truly just so smart so worth listening to and this interview does not disappoint at all so with that said I'm so excited to get on over to the interview with Leah Littman we'll take our usual break first which you can of course avoid at patreon .com slash law there you can support the show support conversations like these get bonus stuff and most importantly get rid of the annoying ads who wants them nobody patreon. Com slash law and

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0:02:22 Thomas: We are joined by Leah Lippman this is so much fun. I get this all the time, but I get to be on the other side of this. I listen to you all the time. How are you doing?

0:02:31 Leah: Likewise, it's one of those weird things where I really do feel like I know the people I listen to, and so I can at least relate when other people say that back.

0:02:42 Matt: It's funny you say that, because reading your book, Lawless, How the Supreme Court Came to Run on Conservative Grievance, Fringe Theories, and Bad Vibes, I could hear your voice all the way through it, very much a Leo Litman book.

0:02:49 Leah: I will take that as a compliment, I think.

0:02:52 Matt: Please do, please do.

0:02:52 Thomas: And it's a nice contrast to Overruled, which we checked out.

0:02:56 Matt: Which I could also hear the author's voice in all the the way through.

0:02:57 Thomas: So I think it's sort of the, yeah, the duality. It's like one, there's too many laws and then yours it's lawless. I like it.

0:03:03 Leah: You know, I like that. I can, in Overruled, hear Neil Gorsuch's voice as well, Well, and that might speak to why that one didn't slap for me. Yeah.

0:03:09 Matt: All the way. And if you listen to the audiobook, you can literally hear his voice

0:03:17 Leah: Would not recommend. Zero out of 10.

0:03:17 Matt: Reading the intro. Yeah. Not my favorite audiobook reader.

0:03:19 Thomas: Yeah. I'd put that on 14 X speed and just pretend it was like the chipmunks or something I wouldn't yeah I wouldn't mess with that

0:03:27 Matt: I was about to ask you what inspired you to write this book, but I think generally gesturing toward the Supreme Court. Tell us a little bit about how you got here with this book. What made you put down pen to paper on this one?

0:03:36 Leah: So I think it really started with the podcast, which Melissa, Kate, and I started back in 2019. And, you know, that was the point after Brett Kavanaugh had been confirmed to replace Justice Kennedy. And it didn't seem to us. People understood just how serious that personnel change was going to be for the substantive future of the Supreme Court and what it would mean for the law that was going to govern all of us. So we wanted to start the podcast to provide more information about the court and what we thought it was going do and where we saw it going. And we never really anticipated that that would become a thing. We were just three law professors, recorded the first episode literally in a friend's garage right after I had moved to Ann Arbor. And I think the signals we got from people who were suggesting, we do want to understand the Supreme court. We think something is wrong, But we're not totally sure we understand exactly what that is. And we're really troubled by it. But gosh, just following the headlines in the news is so depressing. So it was really like based off of that ethic or feeling that the book came to be. I started working on the book, thinking about the proposal, really 2022 to 2023. So that was basically right after Dobbs.

0:04:46 Leah: Yeah, so that was obviously a moment, you know, was not.

0:04:45 Thomas: Were you a fan of that one or no okay

0:04:50 Leah: I know that might be shocking. Not a big fan of that one. But to my mind, that kind of attention on the Supreme Court and understanding of the consequences the court has for all of our lives is the general posture that people should have toward the Supreme Court. So I wanted to write a book explaining that and painting a broader story.

0:04:52 Thomas: I'll teach their

0:05:10 Matt: And you've spent some time inside the Supreme court yourself, courting for Anthony Kennedy, right?

0:05:14 Leah: Yeah. So I clerk for Justice Kennedy in the October term 2011, 2011 to 2012. That was when the court heard the big constitutional challenge to the Affordable Care Act. Yeah. I

0:05:22 Thomas: Own oh fun

0:05:24 Matt: What was the atmosphere in the court at the time, as much as you could tell us?

0:05:27 Leah: Cannot say it was super good vibes. It was a pretty intense year. It was also an odd year because, you know, we all now lived through the experience of having Justice Alito's majority opinion in Dobbs leak. And that was obviously super rare, really wild. But the year I was clerking, Jan Crawford at CBS and other people reported before the Affordable Care Act opinion came down, they reported what they heard to be the votes at conference.

0:05:55 Leah: So it was was an intense year in part because not only there were these huge cases and the Affordable Care Act case was just one of them, it was also because it was a year where it felt like to me the court was kind of exposed in a lot of ways. And it was apparent that basic norms about how the court functioned had really broken down.

0:06:15 Thomas: Wow they ever get to the bottom of that Dobbs leak I know they look so hard they've searched far and wide wearing their hot dog suits I don't know if they found who was responsible

0:06:23 Leah: The marshal has continued to ask people, people, did you do it? And thus far, no one has owned up to it.

0:06:26 Thomas: Though I like to imagine he's still doing like it's I have to it's my job all right did you do it just forever just

0:06:33 Matt: When

0:06:34 Leah: Did you do it? Right. Care to change your answer? Yes.

0:06:38 Matt: You're talking about that feeling, and this is 2011, 2012, I guess I'd want to explore that a little and ask what you mean about the feeling that the norms are starting to break down.

0:06:42 Leah: I think I can tell the story just through the lens of the Affordable Care Act challenge. So this was the argument that Congress lacked the power to enact this sweeping health care reform law that required individuals to pay some tax penalty if they didn't obtain health insurance in the previous year. And this big constitutional challenge cropped up around the idea that it was somehow this big intrusion on people's liberty to penalize them for not having health insurance because so many people go about the world thinking, oh, I want to be free and not have health insurance. And so it was seeing that constitutional challenge, which lacked any basis in the court's case law, and I think was pretty squarely foreclosed by the court previous opinions like Gonzalez versus Raich, which upheld the the Controlled Substances Act, and regulated people who were not in any sense active in a market. And it was seeing that constitutional challenge pick up, take off, get amplified within the conservative ecosystem, and almost take down by just one vote, miss taking down this major signature piece of legislation from a Democratic president passed by a Democratic Congress. And I think it was seeing that up close really made me step back and realize, oh, wow, like we are peering over the ledge, if not already sliding down it.

0:08:12 Thomas: Like it's like oh you just need five assholes I guess that's all you get five assholes to say anything and then that's the new thing is it hard to communicate just how broken things are because I find it hard I fight because I feel like everyone snaps it into their you know the regular like partisanship lens or they're like oh yeah I'm not going to do that I'm going to you're just you know everybody's going crazy about everything these days is it hard to communication how do you try to communicate how far we've gone on

0:08:39 Leah: I think he is hard to communicate in at least two respects, one kind of based on more recent developments. You know, on some level, I think people have come to expect and just normalize the idea that courts are partisan and, of course, judges are partisan. But I just think that grossly obscures and looks past a lot of what is going wrong right now and what exactly the partisan agenda is that the court has signed on to. And of course if people recognize polarization and whatnot they might dismiss my own views right as just reflecting a disagreement with the law part of why I wrote a book with so many darn footnotes um you know so everything would be substantiated I brought the receipts and you know second is we are currently in this moment with the Trump administration where a lot of people are looking to the federal courts and that includes the supreme court with a hope that they will save us from some of Trumpism. And I fully expect the court will rule against the Trump administration on at least some matters. And I just vehemently vehementely vehementally oppose the idea that that would allow us to snap back to a world before Dobbs where people kind of think like oh yeah the Supreme Court is mostly fine.

0:09:19 Matt: Much appreciated. Yeah.

0:09:54 Leah: And so part of what I hope the book does is just offer a corrective to that mindset that I just worry people are sliding into.

0:10:03 Matt: Yeah, I really appreciated that the opening lines of the book and the introduction are starting with the flags in front of Samuel Alito's house. Houses, I guess.

0:10:10 Leah: Yeah. Not just one flag.

0:10:10 Matt: That's really the right place to start. Yes.

0:10:13 Leah: Multiple freaks, multiple flags.

0:10:13 Matt: Not just one house. That is right. Why did did you choose to start with that yeah

0:10:17 Leah: Yeah, so I chose to start with that in part because it's just like a super pointed example that is very easy to explain, very easy zu digest, that I think will strike people as problematic, given that at the time he was displaying these flags that are associated with Stop the Steal, the court was deciding multiple cases involving January 6th. Part of of it is also kind of related to what we were just talking about, which is I think the court cannot run away from Donald Trump and the Trumpism they have enabled. They partially cleared the path for his return to the presidency and made his reelection easier. They have enabled his agenda and ideology in numerous ways, and they will continue to do so when they inevitably rule against him in some matters. And so I wanted that to be the opening anchor for the book, in part because it's a very clear vignette of a court gone wrong or a justice gone wrong. And also because I think it encapsulates how ensconced the Republican justices are in this Trump worldview, this Trump universe.

0:11:19 Matt: And you really make the point at the end by book ending it with uh american psycho I really appreciate every one of the chapters has a pop culture frame really helpful but I just want to read very quickly one of my favorite paragraphs in the book because I think it really makes the point that I've been trying to formulate for a long time here about exactly what you're saying about the fact that it just seems like this is a normal court doing normal stuff and you're making the point throughout this chapter of course that the way they're destroying the administrative state is you know worse than it looks it's almost straight the horror film american psycho people in the film think the smooth and charming patrick bateman can't possibly be a serial killer. His simmering homicidal rage even fits seamlessly into his life as a lawyer. But that's precisely what allows Bateman to get away with murder. He literally says he's into murders and executions, but the listener decides he must have said mergers and acquisitions. Like the Republicans, Bateman says the quiet part out loud and everyone just goes along with it. It's such a good point because we look at the court and we see the Supreme Court that we've always seen. But as you're saying, it's just not the same court that you were part of or that you were involved with even 15 years ago, right?

0:12:14 Leah: I think part of what is so astonishing, you know, in that particular chapter is how far the court has swung from what used to be the kind of median Republican orthodoxy. You know, the Republican Justices used to Be All About Chevron Deference, this idea that, of course, federal courts would defer to administrative agencies reasonable interpretations of the statutes they administer. That is no longer good enough. They had to end that one because it allowed Democratic administrations to actually engage in some regulation when Democrats held the White House. Republican justices, you know, used to be super into textualism, this idea that, course, the only thing, right, they could consider when interpreting statutes was the words of the statute. And trying to impose any substantive values on that was just bad, bad, enter the major questions doctrine, which of course, right, is a giant exception to textualism, which basically says we're not going to read statutes that empower administrative agencies according to their terms because we don't like regulation and we think regulation is kind of a big deal. And there are just so many different examples of how far the Republican Party has moved toward the fringe, like they are now catering toward an increasingly smaller segment of the country. And the justices they appoint have tracked that same movement. Yeah.

0:13:26 Thomas: Don't remember when but there's a certain point when it really hit home to me like I think I had this image in my mind that they were still you know especially with roberts like he was still you know he's conservative he's you know she's the worst but like he's not a trumper and then a certain it was like oh wait they're just getting their information from fox news now like when when did that was that always true and I just didn't notice or do you think there's been a real shift in their information diets.

0:13:53 Leah: So I think that has mostly been true, but I also think the media ecosystem has worsened over the last 10 to 15 years. And I think the justICES have come to reflect that as Fox News and whatever network Matt Gaetz is on at any particular time, right? Like moves closer and closer to these conspiracy theories. That is the content that is being fed to these Republican appointees. And you hear it in the questions that they ask at oral arguments. We heard Justices Alito and Gorsuch invoking these tropes or theories that Fox News just fixated on, like a Democratic representative pulling a fire alarm in Congress or President Biden allegedly engaging in some transactions that resulted in money going to Iran, or Justice Alito speculating that public schools are telling children they should be trans and gay and lesbian, and they're teaching the 1619 Project. And that is the worldview that they are occupying. And I think we all look at the things Fox News says and laugh at them like, oh, funny, ha ha ha, right, vaccines don't actually cause a woke mind virus. But that that worldview and that conspiracy theory ecosystem has a real audience at the Supreme Court.

0:15:13 Matt: I guess I wanted to ask you, and again, I might just be the only masochist here, but did you read Neil Gorsuch's Overruled on purpose?

0:15:18 Leah: I did. So we have, yeah, I say reluctantly and with regret. We've prepared a book episode about it that we had been planning to do a little bit ago, but there were just too many other things to cover. So that will happen at some point. But yes, I did read it in preparation for an episode we were going to do about the book. And right.

0:15:38 Thomas: It's a perfect insult to the book. It was a perfect measure of the book that you read it and you're like, this is not even important enough to talk about right now. It is so silly.

0:15:48 Matt: But reading that paragraph of the Patrick Bateman paragraph I just read out did make me think of the book, of that kind of, yeah, the sort of like nice silver fox normalcy that he presents. And of course, he's just a reasonable guy asking asking questions about maybe there's too many laws.

0:16:00 Thomas: I can't believe I'm going to say this, but I feel like that's an insult to Patrick Bateman. Like, honestly, I feel it's just like Gorsuch is such a dork. Like it just doesn't, you know, he couldn't pull that off. I don't know.

0:16:05 Leah: Don't do that to Bateman.

0:16:14 Matt: Yeah, true enough. But of course, he's sort of concern trolling about the small guy who's getting his magic rabbit overregulated or the multi -toed cats in the Hemingway Museum or whatever, but not talking about the actual people that need regulation and why we need to keep those regulations. I don't know. There's something I learned a lot about Neil Gorsuch from that book, maybe.

0:16:32 Leah: Yeah, he definitely has a lot going on that I think people should know about. You know, on some level, part of what is so striking about that book is something we've observed in his opinions, which is just his willingness to play fast and loose with the facts and really give misleading impressions about the facts. So Ruth Marcus, you know, former columnist at the Washington Post now writes for The New Yorker, wrote a column basically calling out his summary of the facts of one of the cases that he used as an example of supposed government overreach. We've all read his opinion in Kennedy versus Bremerton School District in which he characterized the football coach's prayer as private, not at all associated with his role as a coach. We all saw the picture Justice Sotomayor included in that opinion showing that was just not an accurate description of the the facts and I could go on, but yeah, I mean like that book is just a perfect encapsulation of Neil Gorsuch on many different levels. Yeah.

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0:19:02 Thomas: Recently, it's almost felt like Amy Coney Barrett has been some level of... I want to use my words carefully, but it has shown some level of sanity that the others have perhaps not shown. How are you looking at what she's doing? Do you have any hope for the future that maybe she's not going to be quite as horrible as we thought she'd be? I don't know.

0:19:21 Leah: I don't. And I guess like I would kind of, I

0:19:22 Thomas: Okay. Good. I'm relieved. Just there was a tiny bit of hope I had built. I am so glad that you just extinguished it immediately. Thank you. Oh, good.

0:19:28 Leah: Am here to crush hope. That is, yeah, my role when it comes to the court. So the way I look at it is this, pick your issue, that issue, like there's a possibility that Brett Kavanaugh will be to the left of Barrett and Gorsuche. There's a possibly Gorsache will be to the left of Barrett and Kavanaugh. And there's a possibility Barrett will be to the left of Kavanaagh and Gorsuch, right? And depending on the issue, that might be the case. Justice Kavanagh had joined the Democratic appointees on a case involving the Clean Water Act. Justice Barrett did so recently. Justice Gorsuche has joined with Democratic appointee on Native American affairs. It is true Justice Barlett has sided with her Democratic colleagues As well as the chief on one or two big Trump cases, you know, whether it was his sentencing on the New York charges before becoming president or on whether to stay a lower court decision that basically challenged the administration's decision not to spend federal funds that Congress had appropriated. But on a host of other issues, she's just completely lockstep with her Republican colleagues, whether it comes to, you know, the Voting Rights Act. She was to the right of Justice Kavanaugh and the chief justice a few years ago in Allen versus Milligan. She basically would have gutted what remained of the Vouting Rights Act she was within completely in Dobbs and overruling Roe. You know, in that case, she basically speculated, like, why do we even need abortion protections anymore? Because you can just drop your baby off in a drop box. So, no, I don't hold out hope. It just so happens that depending on the issue, right, there's going to be some variation among some of the Republican appointees. But that shouldn't obscure the fact that on most of these issues, she is fully with them on the social issues, cultural wars, whatnot, on the attacks on voting rights. And so, you know, I just think those decisions where she has departed with some of the other Republican appointees just speak to what mindless partisan hacks some ofthe other appointees

0:21:30 Leah: Are and also how extreme the asks are that the Trump administration and others are asking of the court. Like, yeah, go ahead and declare that the president gets to exercise the legislative power. Like, that's not a thing. Right. And she realized that's Not a thing and that doesn't mean she's drifting left right or moderating or has a real independent streak. It's just in these set of cases, you know, she can read. Right.

0:21:50 Thomas: Right. Yeah, it'll be like, wow, Supreme Court rules 5 -4 that the president can't eat your children. Oh what a what a progressive, you know, decision out of her.

0:22:01 Matt: Did remind me, though, So a question I meant to ask you, since you did kind of get the insight into our last great actual swing justice, somebody who actually was in the middle of things, do you think we have a chance of having somebody like that again? Do you think we're going to have? And what was that like, sort of that experience?

0:22:42 Leah: Become much more intense and selective since Justice Kennedy was appointed. I think all of that substantially reduces the odds of another Justice Kennedy. You know, the other thing I would say about Justice Kennedy is people refer to him as a swing justice, but I'm not sure that is the best phrase for it. You Know, I think it's not like his views kind of modulated back and forth. It's just that on certain substantive issues, he was fully aligned with the Republican appointees and on this one category of case, specifically LGBT issues, and then later on whether to overrule some cases involving abortion rights and affirmative action, like he sided with the Democratic appointees.

0:23:25 Leah: So I'm just not sure, right, the swing justice really captures it. And I also think it overstates a little how often he voted with the Democratic appointees in particular. Yes.

0:23:36 Matt: But moderate would be fair, right? That's the word that's usually used. Yeah.

0:23:38 Leah: Yeah, yeah, yeah. For sure. For sure. Yeah.

0:23:40 Matt: What was it like working with him as a person?

0:23:42 Leah: I wrote two essays about this in the wake of his retirement, one for SCOTUSblog and one in the Harvard Law Review. As a boss, he's very gracious. He never had an unkind word for anyone, which in some ways made it difficult because you always wondered, am I actually doing a good job or is he just being super nice? He had very reasonable work expectations, work hours, encouraged all of us to have a balanced life between work and family and other pursuits. So on that level, he was a great person to work for.

0:23:58 Matt: You've been teaching constitutional law for some time now. And how's that going these days?

0:24:17 Leah: Yeah. So I

0:24:17 Thomas: Yeah what do you do? Did you just eventually just, all right, kids come into the classroom, dump the textbook in the trash can. I don't know. Whatever they say, I guess. It's It's whatever they say it is. That's the Constitution.

0:24:26 Matt: Watch a movie?

0:24:29 Thomas: Good luck.

0:24:25 Leah: Actually started teaching constitutional law in January of 2017, just as Donald Trump was inaugurated during his first administration. So, on some level, I feel like I started the job with some expectation about what was coming and just knowing there was going to be an utter disregard for the law.

0:24:48 Thomas: You started in the twilight years of the Constitution

0:24:50 Leah: Right, exactly. And so on some level, I view my job as it's partially a history course. It is partially just teaching students about how government can work, how it has worked, how it might work in the future. That is kind of the business of teaching constitutional law these days. I mean, so much has changed that I don't really view my role as teaching them, okay, here's the current doctrine because that's not going to do them much good a year or two from now. It is partially just an informational class about what the Supreme Court has looked like over time, what our government has looked like over time, and those kinds of bigger picture issues.

0:25:31 Matt: What's the mood like with the students? How are people doing going into all this?

0:25:34 Leah: I hesitate to generalize about, you know, students' attitudes across the board. I think some people, perhaps those who came in thinking, I'm going to do civil rights work, understood that they were always going to be fighting against, you know, pretty powerful players and institutions and against the tide. And so for them, it's It's like, okay, I'm just going to double down, dig down and do the work, you know, as I was kind of expecting to do. I think for other individuals who didn't necessarily see themselves as getting involved in political work or governmental work, they see the law and the legal profession nonetheless being touched and deeply affected by what is happening in politics. And I think there's considerable concern and anxiety about what the law legal profession looked like in the near and far term. I think it's really, it really runs the gamut, right? Right. And of course, there are some students who are very happy about what is happening as well. So it is truly a range.

0:26:26 Thomas: That must be tough. I don't think I could do that. That's why teachers are just better, I guess. I don' t know how you'd handle that.

0:26:32 Leah: I mean, it's just one of those things where like, I am very glad I have the podcast and the book because I think just standing up in front of the room being neutral and that I am just like instructing students and encouraging them to draw their own conclusions and like make their own arguments would be very alienating and difficult if I didn't have an outlet to actually say what I thought and express what I believed and encourage people to act accordingly.

0:26:58 Thomas: You know, I wanted to ask if you have any, like, dark horse under -the -radar picks for cases that have really messed things up lately, you know, places where the law has been damaged irreparably that maybe your average person wouldn't remember or know about.

0:27:10 Leah: So I think they have done a substantial hash of the law on habeas corpus, which is like super wonky and technical. But in the final chapter of the book, I refer to this one case that involved a man who was convicted and sentenced to death for a crime that four federal judges concluded, he very likely did not commit.

0:27:32 Leah: You know, there were multiple experts that his defense lawyers did not uncover. And on looking at the scientific evidence more in depth, it seemed to directly undermine the state's theory of the case and how and when the crime was supposedly committed. So what ended up happening in the case is, you know, the lower federal courts that looked at this case basically said, look, the state appointed you several lawyers who were ineffective and just never presented any evidence of your innocence. So now that you are in federal court, we can have an evidentiary hearing. And I'm going to hear this evidence that basically has convinced everybody that you did not commit this crime. It gets up to the Supreme Court and the Supreme court decides it is actually illegal for federal courts to consider evidence of your innocence, even when that evidence was not introduced, because the state appointed you, multiple ineffective lawyers, they say, that's your fault. That's not the state's fault. And because it's your fall, you can't introduce that evidence in federal court. So basically making it illegal for federal courts to remedy cases of wrongful convictions. I mean, talk about like grotesque. That case is definitely up there for me. And, you know, they twisted the the law in any number of ways. They made a number of gross mischaracterizations in the opinion, you name it. It just has all of the bells and whistles of many things that are wrong with the court. So that's one area and one example that I think the court has just truly taken a hatchet to.

0:29:08 Matt: Some real Patrick Bateman stuff right there.

0:29:10 Thomas: Okay, yeah, I think I listened to your episodes back. Is that the one where it's like, If you get appointed one bad lawyer, then I think we have the remedy. But if you get two, then it's just like, well, sorry, F you. Was it that one? Oh, wow. Yeah.

0:29:20 Leah: Yep, exactly. Yeah. Like if the state multiplied their error, right, by appointing you not one but two bad attorneys, then it's your fault.

0:29:28 Thomas: Fool you once, shame on us. Fool you twice, shame you. Shame on you? I don't know.

0:29:34 Leah: Shame on the legal system.

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0:31:01 Matt: Actually reminds me of Alito's recent dissent. And then Alien Enemies case there.

0:31:05 Thomas: Boy is this the one where he said like coming soon to it

0:31:08 Matt: Yes, that was the one where they actually left him behind. They let him publish it the next day, which I'd never heard of happening before.

0:31:08 Thomas: Yeah yeah he had a drop day he was like watch this space for my dissent

0:31:15 Matt: Yeah, that's right. And he spent his Easter weekend furiously giving us some bullet points, but very much the same kind of Patrick Bateman approach of like, this isn't my problem. And I don't see why, what are we going to rush for? Like, you know, take our time here and let these guys get deported, not even deported. You know, obviously Shanghai to El Salvador.

0:31:31 Leah: I mean, like in some ways that was the approach, you know, all of the Republican justices took in an earlier version of, you know, the Alien Enemies Act case where they put on hold Judge Boasberg's order that had paused all of the deportations and told all of the individuals, you know, you have to challenge your detentions and possible expulsions where you're detained. And basically, like, it's not our problem that that's just going to create this messy system that is going to risk some people falling through the cracks and maybe being permanently expelled to this El Salvador mega prison. Not my fault. It's yours. And that just kind of like legal nihilism is definitely part of the habeas case we were just talking about as well.

0:32:16 Matt: Well, right. What do you know? A couple weeks later, it turns out that people are being given one page notices in English 24 hours, 24 hours before going out. And Alito's fine with that, apparently. Right.

0:32:21 Leah: In English. Right. Exactly. Exactly, yeah. Right, and that the government is literally like moving people around. So they're moving them from jurisdictions where courts said you cannot expel people to El Salvador to places where there's no such restriction on them and basically evading court orders in that way. Yeah.

0:32:41 Matt: This year on Law Day on May 1st, I went out to Boston Common on this beautiful spring day and retook my oath after 20 years. And this is the kinds of times that make us really think about these things. But we are in this time, as you've certainly talked about plenty on the show, and as we've talked about in our show, this time when they're doing things like just saying the Constitution doesn't say what it says, and that the Alien Enemies Act somehow applies to people that we are no way at war with, and we can just make these things up about why it might apply to certain people that don't get due process anymore. I'm not sure exactly what my question is here, But what do we say in the face of this as lawyers? What is the best that we do? And what do we tell our future law students?

0:33:03 Leah: One thing that gives me hope and that I often come back to is FDR's Constitution Day speech, you know, where he talks about the Constitution as a layman's document and not a compact between lawyers. And I think the thing we encourage our students, but also people who aren't lawyers to do is to reclaim the Constitution and to make make a case to the public that there is a reason why the constitution requires due process. That is a core component about what it means to be a liberal constitutional democracy. There is a reason why presidents cannot just decline to, you know, spend federal funds that Congress has appropriated and kind of making the case for that vision to the pub. Because I think at the end of the day, that's how constitutional change happens. That is how we get courts to enforce the law. And And that would democratize, you know, all of our institutions, the Constitution, the courts and the country. No.

0:34:09 Matt: I appreciate that. Because I've really been chafing, I think, at the dumerism that I keep seeing online. I'm sure you've been seeing plenty of yourself. And I'm afraid plenty of people tell you what they've been telling me, which is, it doesn't matter. He's going to do what he's going do. Courts don't matter anymore. But it just seems we're so far from that. And we're not going to be able to do it. And so, I'm going to really appreciate your... And I know that you're not an optimist.

0:34:25 Matt: I don't mean to accuse you of optimism. But I appreciate your steadfastness, I guess I'll say on this as a constitutional scholar.

0:34:25 Leah: Well, thank you. Definitely not an optimist, but also not a giver upper.

0:34:34 Matt: That's okay. Sure. Exactly. It's a good balance.

0:34:37 Thomas: Yeah well it's it's one thing yeah not being a doomerist in that sense but I feel pretty negative on the prospects of changing this court anytime soon I mean what what can we even do what is even the first step along that path that we can try to take and I don't mean just put a band -aid on something like there's been so much damage we need to change what we hope for you know on the left it's like how can we get not only undo some bad stuff, but start really redefining things and back to how they should have been, you know, to really change things for the better.

0:35:12 Leah: A few things. One is kind of similar to what we were talking about. I think we need to be building our case and making our case now for democracy reform, for court reform, so that the next moment when Democrats are in power, like that case has been made and public movement, public sentiment has been shifted. So that we're no longer in a place where the Democrats have power and we're only then kind of beginning the fight against the filibuster as a potential obstacle to protecting voting rights. So I think part of it is just public mobilization, public education. Another part of it is picking leaders who will actually fight and not just roll over and give up. There is a primary in Michigan right now for what's going to be a Senate seat. And there are a range of candidates, you know, some whose pitch is, right, I'm a fighter. I think we need officials who are willing to be in the fight with people and other people who are making these kind of vague gestures toward bipartisanship and saying, actually, it's complicated and whatnot. And so I think selecting leaders who are actually going to be open to change and open to serious democracy reforms is another part of it. And also focusing on state and local elections. You can do a lot in those spaces that will actually stem some of the effects and staunch some of the bleeding of what the Supreme Court is doing to the country. So going back to that habeas case involving the man who was convicted of a crime, sentenced to death, or something he likely didn't do, he was released from prison because a Democrat was elected to the Attorney General position in Arizona after the Dobbs opinion and won that election by less than a thousand votes.

0:36:46 Thomas: Oh gosh. Yeah, I covered that. It's so insane. That was the most insane thing.

0:36:51 Leah: And so those sorts of changes, you know, they're not going to fix everything, as you say, but they are going to help people. And I think that's worth fighting for.

0:37:01 Thomas: I forgot about that because I covered it before I got this show back, but there was never a better example of your vote mattering. Like literally you could trace the, you know, handfuls of, handful, handful? Handfuls of vote that went to the difference between this person essentially living or dying, right?

0:37:20 Leah: Yep.

0:37:20 Thomas: I mean, it was that stark a question. So yes, please, please vote. But I think maybe what we ought to do to pick our candidates is have a strong letter competition. And whoever writes the strongest letter with the strongest questions wins. And that's our candidate. What do you think?

0:37:37 Leah: You know, I am open to different systems for selecting candidates. I'd want to hear a little bit more about that one.

0:37:42 Thomas: Now you're right. Let's go with your idea. I think we should elect fighters.

0:37:46 Matt: Chapter

0:37:46 Leah: Maybe people who design the best paddles and hold up the best paddles as protests.

0:37:51 Thomas: Yeah, the best protest signs. The days for writing strong letters as Chuck Schumer is apparently doing are just, oh, I just, we're so past that. And it's amazing. It's actually a little bit disheartening to see how long that's still taking for a lot of Democrats in office to understand.

0:38:00 Leah: I know. I Know. It is. Yep.

0:38:07 Thomas: But all we can do is keep trying, I suppose.

0:38:10 Matt: Four of your book is actually a great place to go to understand the real problem. Like it's really just encapsulated really well through an extended discussion about the Supreme Court as the Bluth family from Arrested Development, which I really appreciated. I really appreciate the kind of very accessible pop culture framing throughout all this. Is that just something you came up with as you were writing or was that are coming in there.

0:38:28 Leah: So that is something I had wanted to do when I was proposing the book and pitching it to publishers for a few different reasons. One is, this is not a happy story in a lot of ways, and wanted to make it, I don't know, more accessible and fun or invigorating, even though it is enraging as well. I guess we were mocking a little bit, you know, people who come with good signs at protests and whatnot. But I think you have to make politics and political engagement fun and sustainable. And so that's in part my effort to do that. But it's also just an effort to mock these guys and cut them down to size. Like, they're just ridiculous. They should be likened to the Barbies and to the Kens in the Barbie movie, you know, or whatever other characters, Patrick Bateman in American Psycho.

0:39:12 Thomas: What's your favorite best fit for that? What's one that sticks out to you?

0:39:17 Leah: Oh, it's probably either American Psycho or the Barbie movie from chapter one. I think those are my favorites. The book ends.

0:39:25 Thomas: I have to know who's Lucille Bluth in that example. I mean, how much could a constitution cost? Ten dollars.

0:39:33 Leah: I mean, that one is how much could a constitution cost? You know, that particular one is either Justice Kennedy or Chief Justice Roberts. If that's a veiled criticism of me, I won't hear it and won't respond to it. That's Sam Alito. So I think all of the justices have a little Lucille Bluth in them for.

0:39:51 Thomas: That's so good. Oh, boy. I don't know. I think Alito is way less cool than that. You know what I mean? Like, I think he's just like, who? Who did it? Who criticized me? Who was it? You know, he listens to your show, right? I feel like he does.

0:40:03 Leah: For, yeah. Yeah. I mean, like, look, I would never liken him to Jessica Walter, who is a queen. Yeah.

0:40:08 Thomas: She's the best. Yes.

0:40:10 Leah: As ridiculous as Lucille Bluth is maybe the better framing.

0:40:13 Thomas: Well, in the waning moments, is there anything we didn't ask you about the book that you want to make sure to get in or tell our listeners?

0:40:18 Leah: You know, I intended the book not just for lawyers or law professors, but also for a general audience as well. You know, I hope lawyers and law students find the book fun and entertaining and drawing some connections that maybe they didn't see before. But I also really want it to be a book for people who just want to learn more about the court because I think we all need to kind of stay on their business.

0:40:41 Thomas: Sadly, yes. As much as it sucks to pay attention to these folks, I think you're right about that. The more people pay attention. I think that high approval rating really was just people not knowing what was happening. Don't you think? I mean, they're like, well, they're still wearing the robes, so they're probably doing judge stuff, you know. And then the more people got to know what the Supreme Court was doing, the more that approval number finally started to drop, which is where it should have been. Right. I mean, I feel like that's

0:41:05 Leah: Yes, exactly. Like they were skating by. I don't know what fumes they were running on, but they certainly did not deserve those higher approval ratings. And, you know, as we were talking about earlier, I am sure, right, they are going to get a bunch of great press when they inevitably rule against some of the Trump administration's more ridiculous things and the Republican justices particularly the chief really know how to stage a scene in order to get that kind of good press yeah

0:41:34 Matt: It seems like even the most negative and pessimistic of us seem to agree. I think, is this still your position that it seems extremely unlikely that birthright citizenship is going anywhere?

0:41:44 Leah: I think that's right um I think they are going to rule against the administration's request on birthright citizenship

0:41:49 Matt: It seems like an easy gimme for them to just... Yeah, yeah, right.

0:41:50 Leah: Yeah exactly it

0:41:52 Thomas: It's so frustrating because they get to do a victory lap on. Yes, words are what the words say. Cool. Wow.

0:41:54 Leah: Is exactly exactly like you cannot strip birthright citizenship etc etc zero cookies zero cookies keys for you for that, right? Like my dog doesn't shit indoors. That doesn't mean she deserves to be on the Supreme Court. Same point here.

0:42:17 Matt: And there will probably still be two justices that should endorse, so... Here we are. That was a fun place to stop.

0:42:20 Thomas: Yeah. Oh boy. Well, the book is lawless. The podcast is, of course, Strict Scrutiny. And thanks so much for coming on today. We really appreciate it. And folks should check out the book. Anywhere else you want to send people?

0:42:33 Leah: Check out the book. It's Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. Of course, I also appreciate the plug for our podcast as well. New episodes are out every Monday. But thank you both so much for taking the time to do this episode and to read the book I really sincerely appreciated it.

0:42:49 Matt: No, what a pleasure. Thank you.

0:43:07 Leah: Multiple freaks, multiple flags. My dog doesn't shit indoors. That doesn't mean she deserves to be on the Supreme Court.