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Peter Ogborn

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Al Franken

Hey, everybody. Today we have a great show, and just in time, too, because it's our last episode, and I can't think of anyone better to end with than one of our faves. Dahlia Lithwick. Well, maybe Obama, but we couldn't get him. He said he'd do the next episode. Damn. Anyway, Dahlia was available. And thank God, because the Roberts court continues to attack our basic constitutional rights. One, six three, decision after another. Dahlia, of course, is host of Amicus, her brilliant podcast about the courts. And she'll join us to unpack this horrific term at the Supreme Court, both the cases we're still bracing for and the ones that have already come down, like the disastrous Calais decision, which, for all intents and purposes, ended the Voting Rights Act. Yeah, things are are dark in America right now. But I want you to know that I'm hanging up my headphones with hope in my heart. Donald Trump still has two and a half years left in his term, which is plenty of time for him to grow into the office and become the leader we so desperately need. Okay, here. Here's why I'm hopeful. When I look around the country, I see a new generation of leaders emerging. I see new energy, including in places where there's never been much progressive energy before. I see people getting involved in their communities like they never have before. Oh, yeah, and I see November on the horizon. The midterms are bearing down like a freight train with the Trump administration in its sights. You know, for the last year and a half, this podcast has focused pretty extensively on my critique of the administration. But what's happening out there isn't just about standing up to what's wrong with Donald Trump and his cronies. It's about defending what's right with America. It's about building something even better than what we had before Donald Trump became our president. Twice. That's important work. And it won't be quick or easy work, but it's work we can do together. All around the country, people are doing that work. They're doing it by running for office. They're doing it by working on campaigns. They're doing it by volunteering in their communities. And, yes, they're doing it by starting podcasts. So don't worry. You'll still have plenty of opportunities to find out what Norm Ornstein is thinking. I'm lucky enough to have the opportunity to chip in through my Midwest values pack, which, 20 years after started, has invested in hundreds of winning campaigns across the country. Maybe you have your own leadership pack, but probably not. In which case, you're welcome to join mine. So make no mistake, you'll still be hearing from me. And just as importantly, I'm hoping I'll be hearing from you on the campaign trail at the ballot box this November and in the years to come as we work to rebuild this great country. Now, before we get to Dalia, there are a few people I want to thank, starting with you, Peter.

Peter Ogborn

Oh, hi, Al.

Al Franken

Hi. Peter, you have done an unbelievably stellar job over God, all these years. Booking, producing, engineering, and. And editing. And podcast like this takes tremendous amount of work and dedication, and part of me feels that I should have been paying you this whole time. Thank you. Okay, good. You found that funny. Okay, well, this is our last rodeo. How many of these shows have we done?

Peter Ogborn

Oh, gosh, Al, I have no idea. I don't keep track of that stuff.

Al Franken

You don't?

Peter Ogborn

No. No, I don't. Just like you said, I produce the show, I book the guests, I record the shows and edit them. But I don't count them. No.

Al Franken

Okay, well, fair enough. Okay, what. What was the worst part of working with me?

Peter Ogborn

Oh, gee, Al, that's a. That's a really difficult question. I guess having to edit out the constant stream of factual errors that you make.

Al Franken

Yeah, sorry about that. Well, let's go positive.

Peter Ogborn

What were.

Al Franken

What were your favorite shows?

Peter Ogborn

Oh, man, this is. This is really hard because I got to talk to and record and edit interviews with, like, comedy heroes of mine. David Letterman, Chris Rock, Sarah Silverman.

Al Franken

Okay, well, how about, you know, some of the political shows?

Peter Ogborn

Yeah, those were fine, too, but, like, we had Dana Carvey, Martin Short, Bob Odenkirk.

Al Franken

Okay, Peter, look, I'm gonna. Jesus, we've been this seven years. I'm gonna miss working with You. You know, one of my favorite things is taping these monologues with you.

Peter Ogborn

You know, Al, my favorite part was when you let me get a few words in on these. Okay, but look, in all honesty, man, you know, my. When I think about my time on the show, and it's been seven years, I've told you both on this podcast and off the podcast, how much SNL meant to me growing up. I kind of learned about comedy that way. And I got to interview you on this podcast for the 50th anniversary of.

Al Franken

Of Live.

Peter Ogborn

And I. I can never tell you. I don't know if I can ever make you understand how special that was to me, because it's a big part of my life, and, you know, I. I'll always have that memory, and. And it means the world to me, man.

Al Franken

Well, you've been a big part of my life, and I hope you continue to be. I didn't know we live in different cities, but let's. Let's keep this up.

Peter Ogborn

We will. Well, absolutely, Al. Thank you, man. Thank you. What a run.

Al Franken

Thank you. Yeah. Okay. Well, I also want to thank two people without whom this podcast wouldn't have been possible. My executive assistant, Sher Figman, and my chief, Alexandra Fedisoft. Thank you both for. For putting up with me, and thank Peter for putting up with me. I. I want to thank all the incredible guests we've had over the years, and, of course, I want to thank you, my listeners. Many of you have been with me since long before I broke into the podcasting game, going back to my SNL days, my radio days, my book days, and my time in the Senate. I owe you so much, and I want you to know how grateful I am. But, not surprisingly, I want to challenge you. Paul Wellstone famously said that the future belongs to those who are passionate and work hard. There's no doubting our passion. I've shared mine with you over the past seven years, and you've shared yours by tuning in each week, and it's been a blast. But now comes the hard work part. The good news is there are so many ways you can do your piece of that hard work. You can support candidates by making phone calls and knocking on doors and writing checks. If you can, you can get involved with voter protection and registration groups. Just stop Trump from rigging the midterms. You can be a poll watcher, an election judge, a resource for people in your community who want to make their voices heard on election day. And you can help get everyone you know to the polls. Whether that's by giving them a reminder or giving them a ride, all of it makes a difference, every little bit. My point is this. For the last seven years, we've enjoyed each other's company as we've talked about what needs to be done to get this country back on track. I've learned so much with you and from you, and now it's time to stop talking and start doing. It's time for us to prove that we're not just passionate. We're ready to do the hard work, too. But before we do, how about one more episode of the Al Franken Podcast with my friend Dalia Lithwick. It's a great one, you know, for a change. Dahlia, thank you so much for joining us. This is the final show and it's been such an honor to have you as our resident Supreme Court scholar all these years.

Dahlia Lithwick

I was remembering, Al, the first time I was ever on your Air America show. I was in my first ever house. I was pregnant with my kid and there was like massive construction going on. So I remember hiding in the bathroom with the door closed so you couldn't hear the hammering and the screaming. So we've come a long way, baby. But it's so funny because I literally, like, was like, I hope they don't know I'm a complete hack doing this with destruction happening out the door. Anyway, it's good to be back, Al.

Al Franken

We've got a lot to talk about today. It's been by and large a pretty bleak term. Today is Wednesday the 24th, and the court's term officially ends at the end of the month, but it'll extend into July.

Dahlia Lithwick

Technically, as of this taping, there are 12 decisions yet to come down. The only official hand down day is Thursday. Tomorrow, the 25th, I think they're gonna add some days. They may add Friday, they may add Monday. Tuesday. They could slip over into July. They've done that. A couple years ago they did that. But my sense is they can probably, if they add a day or two at the very beginning of next week, wrap it before July 1st.

Al Franken

Well, let's start with some of the cases that were already decided this term. And then we'll discuss some of the decisions that we're awaiting, which are, of course, the biggest ones. So are you ready? Here we go.

Dahlia Lithwick

I'm buckled in.

Al Franken

Okay, I'm going to lead with Kalei. This is a 6, 3 decision that just obliterated, really, the voting what was remaining of the Voting Rights Act. This is pretty late. They decided this. They Require the Louisiana state legislature to redraw its congressional map. Okay. And is wiping out the majority black district days before the primaries. Right.

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Al Franken

Okay, let's go through that. Hadn't the court previously ordered states to establish majority minority districts?

Dahlia Lithwick

So this is an interesting problem that goes back to Reconstruction, right? Because essentially Congress did not trust the states to enforce the Reconstruction Amendments. They're like, the states are never going to do this. So they did that. First we had the Reconstruction Amendments. Then we got the Voting Rights act, which everybody calls the crown jewel, the most important civil rights legislation probably in American history. And the 14th and 15th Amendments essentially say that you cannot disenfranchise black voters anymore. And the Voting Rights act creates a structure by which you can protect against that. And one thing you said that's super important is remember Shelby county, when the court gutted. Right. Another chunk of the Voting Rights act and said, don't worry, you'll always have section two. We won't have this complete preclearance scheme.

Al Franken

Roberts, of course, was the author of that.

Dahlia Lithwick

Shelby, there'll always be section two. So essentially what the court. Court does is they say, okay, now we're going to decimate what's left of section two. And you're exactly right. That Louisiana population is about a third black. Had redrawn its six congressional districts in a way that had created one majority black district and five majority white districts. We had a bunch of black plaintiffs suing, saying, no, we need a second majority black district because it's unlawful racial vote dilution under section 2 of the Voting Rights Act. And you're exactly right. The court just strikes that down. They strike down the second map and they say, oh, no, what we meant was the Reconstruction amendments in the Voting Rights act are now colorblind. So you can't do remedial voting measures. You can do nothing that takes color into account. And this is an upending not just of the Reconstruction Amendments, but, as you say, of the Voting Rights Act. It's an upending of a whole bunch of case law. And, you know, Alito does it kind of with the stroke of the pen in Louisiana and says, you know, so sad. Too bad. I'm just doing some tweaks here.

Al Franken

To me, what was unbelievably egregious is the shadow docket thing they did following this with the Alabama majority minority district. They got rid of that, too.

Dahlia Lithwick

Right. So there's a great line in Calais where Justice Alito, again, writing for the predictable 6:3 majority, sniffs and says, quote, contrary to the dissent's assertion, we have not overruled Allen. So Allen v. Milligan is a case that the court decided only three years ago, just three years ago in Alabama. And the court had issued this landmark decision in that case, Allen v. Milligan, saying that again, five, four, that Alabama's congressional map had improperly diluted black votes. Right.

Al Franken

And so they had to create a majority minority.

Dahlia Lithwick

Yes, exactly.

Al Franken

Okay, that was ordered. And now this decision says that majority minority districts are unconstitutional, are illegal.

Dahlia Lithwick

But here's the same Justice Alito who says like a week earlier in Calais, this has nothing to do with Alan. We haven't overruled it. And then they do it on the shadow docket and they essentially, in the dark of night, just in a four page, incredibly incoherent order, are like, oh, whoops. Alabama goes too. And just to be clear, voting was about to start. Like, this throws the entire Alabama election into chaos. There's almost no way to go back to the old maps. And they just, with the stroke of a pen, are like, oh, well, now Calais controls the outcome in this other one and we're gonna decide it on the shadow docket.

Al Franken

One little amazing detail was, is that there was a district court in Alabama that said that the district that was created by. By Alabama was actually racially gerrymandered. Is that right?

Dahlia Lithwick

Yes. There's a three judge panel, two Trump judges.

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Dahlia Lithwick

And they're like, no, this is not just discriminatory, but intentionally discriminatory. We can't see it any other way. And they said that the quote, try as we might, this is what the court writes. Two Trump appointees. Try as we might, we cannot understand the 2023 plan as anything other than an intentional effort to dilute black Alabamians voting strength. And they show that it's intentionally discriminatory. And then after Calais, the court, the high court, kicks it back to that same panel and says, look at this again. And they look at it again and they're like, dudes, still intentionally discriminatory. We've got all these findings. And the Supreme Court on the shadow docket goes, so sad. Too bad.

Al Franken

Okay, a big decision on Trump's tariffs came in February from Learning Resources Inc. V. Trump. Now Learning Resource sources a company that obviously paid in the tariffs. This is another 6, 3. But this is a different split. Right after the case was decided, Trump was just furious with Gorsuch and Coney Barrett, who are in the majority. I thought terrorists were solely the province of Congress. And why wasn't this nine zero and you are correct.

Dahlia Lithwick

And that is what the majority. It's a 6, 3 majority, as you said. The dissenters in this case are Clarence Thomas, Sam Alito, Brett Kavanaugh. Everybody else sides against Donald Trump. And they essentially said what you said. This is 100% within the purview of Congress. Congress has not authorized it. And Trump exceeded his authority in imposing these tariffs on his own, and they hooked it to this statute, iipa, the International Emergency Economic Powers Act. And essentially the majority just said, this is not an emergency. And this is not even under ipa, which gives the president authority to, quote, regulate importation. This is not that. This is just mass tariffs to. To address a non emergency. And then why did the three dissenters dissent? Well, I mean, in part because Trump can do no wrong. But I think that Justice Kavanaugh, who writes this big pissy dissent, says that the language of AIPA actually does encompass what Trump was trying to do. And he says tariffs are a traditional and common tool to regulate late importation. And then he gets in a fight with Justice Barrett about the major questions doctrine that you and I have talked talked about before. And then he has a little tantrum because he doesn't know how the government is going to return all these billions of dollars that they have collected from importers. And he's like, it's too late to do anything about this. But six, three, it is. And as you note, Trump goes after the justices that he considers his justices.

Al Franken

Okay, we got a gun rights decision this term that might have flown a bit under the radar. I really like this. This is Hamani.

Dahlia Lithwick

This was fun. Yes.

Al Franken

Yeah. Okay. This is the guy. He bought a gun and is a pot smoker. So he got indicted, I guess, for that. And they, I guess this decision says that you can own a gun if you smoke pot, but not if you're a pot addict. What was the decision here?

Dahlia Lithwick

This decision, it's my favorite only insofar as It's a kind of 9 0, right. The court can agree on Nothing is an epic ode to day drinking, as best as I can see, because they compare it to, using our favorite trick of originalism, they compare it to the laws at the founding about being a habitual drunkard. And then they go through and they talk about all the founding fathers and what alcoholics they all were and how much they drank every day. And essentially there's no other way to read this other than to say they have decided. And this is the court, you know, that once upon a time was so afraid of pot, you'll remember the bong hits for Jesus case, like you couldn't even hold up a sign that said something about pot. But now we've decided that pot is kind of like alcohol. And they talk about all the good people who use gummies to get to sleep and know who are we to judge people who are just casual users of marijuana? So I think that the upshot here is, and by the way, this is not a hugely consequential gun rights case. They only essentially say, if you're not an addict, if you're not abusing pot, the mere fact that you recreationally use it shouldn't preclude you from have a good gun.

Al Franken

Now, Hunter Biden was actually convicted, right, because he was an addict and he got a gun, right?

Dahlia Lithwick

That's exactly right. He was more serious drugs and he was an addict. And so again, the court doesn't strike down the law. They say, we're really limiting this to how this was applied to this man Hamani. And we're not making any pronouncements beyond that about the secondary.

Al Franken

Okay, Child v. Salazar. Now, this is about conversion therapy for minors. Now, the facts, and these are complicated. This is Kaylee Childs is a licensed mental health counselor and this is in Colorado, right? And she says she works with clients who share her religious beliefs and she works with them to challenge their same sex attraction or gender dysphoria. And in 2019, Colorado bans conversion therapy for minors. So Charles claims she then refrained from engaging in those discussions, but later decides in 2022, she files a lawsuit against the state alleging that the ban violates her First Amendment rights, specifically for free speech and free free exercise of religion. So the Supreme Court heard this case and decided eight to one that the ban violated her First Amendment rights and she has the right to provide talk therapy and that, you know, aligns with her religious beliefs. Did I get that? Did I get that right?

Dahlia Lithwick

Yeah, no, that's right. I think it's. Look, it's a long line of cases that goes back to the cake bake and goes back to the website designer, who, by the way, also hadn't yet designed a website for a same sex couple, but didn't want to do it because she was afraid she's going to get tagged by the law. So this is, this is a long line of cases. And maybe also worth noting, it's part of a kind of juggernaut against gay kids that the court has been on for some time. And you're exactly right. It's eight to one. It's a Little bit surprising. The reason that they end up kicking it back to the lower court and that they pick up the votes of Sonia Sotomayor and Elena Kagan are that the question really is, they say, very, very narrow. Is this discrimination based on the kind of speech that she wanted to give? They say we're going to kick it back and we're going to have the lower court review it under a very, very rigorous standard called strict scrutiny, because it's discrimination based on her viewpoint. And by the way, it's probably going to too, and she'll probably prevail. And it's really important. And in this case, Justice Ketanji Brown Jackson was the only dissenter, Al. And she was really upset. And she just felt like, look, we regulate professional speech in a billion ways, right? We don't let doctors say smoking is amazing for you. We don't let people lie to their patients. And yet this somehow gets classed as something else. And she really, I think her dissent, she says that this is gonna usher in a whole era in which states will not be able to regulate healthcare professionals. And she really is worried that it's going to kind of bring us into this brave new horrible world where she writes, I fear the people of this country will get burned. Before now, licensed medical professionals had to adhere to standards treating patients. They could neither do nor say whatever they want. And she's worried that this is a license, a very, very broad license to allow doctors to deviate from what is known, you know, professional practices and standards.

Al Franken

Okay, before we go to the remaining cases, last time you joined us, you warned listeners to pay as much, if not more attention to the shadow docket as compared to the big cases that will come down, like, in the next couple weeks. Can you explain the shadow docket and how the court has been using it all year?

Dahlia Lithwick

Yeah, I mean, the shadow docket. And we have talked about this because I'm a little tiny bit obsessed with this notion that we're so busy watching the carefully stage managed kind of end of June, Jack in the box part of the court's work that the stuff that they're doing, you know, late at night in unsigned orders like the one we just talked about in Milligan, you know, we don't even know what the vote is in some of these cases. And the real issue with the shadow docket, first of all, Justice Alito hates the use of the word shadow docket. He thinks it sounds nefarious. So try to use it as much as you can. Shadow docket.

Al Franken

Shadow docket.

Dahlia Lithwick

Shadow docket. Right. But you know, term is coined by Professor Will Bode. It's essentially the name Al. It's not that complicated of the court's emergency docket. And the court has always had an emergency docket, usually for death penalty cases where you don't have time to do briefing and arguments and get parties to all come together and write all the briefs. But what's happened, and there's good data to support this is in the administrations of President George W. Bush and Barack Obama. All through that, only eight times did the presidents of those administrations rush to the court and say, I need emergency relief.

Al Franken

Wow.

Dahlia Lithwick

President Trump's first term alone, he asked for it 41 times. So it's become a kind of reflexive. It's an emergency. Why is it an emergency? Because Trump lost. He has prevailed in so many cases, really important cases on the shadow docket. Right. Removing individuals to third countries without complying with the Convention Against Torture, expelling transgender service members, religious exemptions from public school vaccines, allowing roving ICE raids to stop citizens and non citizens. All this happens on the shadow docket. I know we're going to talk about doing away with the long standing precedent that the President doesn't get to fire heads of agencies. Literally. They reverse a case from 1935 on the shadow docket. And the reason it's so dangerous is these cases aren't argued, they're not briefed. As I said, the orders are not signed. Sometimes the orders are just like, because we say so. So it's kind of the MO if the court has one job. Al, I think I said this when we talked last time to show its work. It's not doing its job. If it just gives a sort of back of the napkin, you lose, Trump wins.

Al Franken

I think the most important case that's yet to be decided is Trump v. Barbara. Is it? That's on birthright citizenship. What will they be deciding exactly?

Dahlia Lithwick

I mean, this is in some sense the whole shooting match because it's a sort of theory of, you know, we talked before about the 14th Amendment. It was perfectly clear what it says and what it has always meant. Right. The 14th Amendment says, quote, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. So with like a couple clear. It's pretty clear contextualist with a couple of narrow exceptions. Right. Kids of diplomats or if you're like a marauder on the high seas. Right. There are exceptions, but there is no exception exception that says if your parents are here illegally or they're working here on temporary visas, and you're born here, you're not a citizen. It has never been interpreted that way. It has been, you know, 127 years ago in a case called Wong Kim Ark, the court reaffirms this. They reaffirm it, but Congress reaffirms it in a statute in the 1940s. This isn't in question. You may like it or you may not like it, but if you are born in the United States, you are a U.S. citizen. And Trump, of course, as soon as he comes into office, having campaigned on this, is like it's done again by fiat. And so this case goes up to the court. By the way, you remember, this case went to the court last year on a very narrow issue of these whether judges could do nationwide injunctions.

Al Franken

Right.

Dahlia Lithwick

And the court said, we're going to just decide that narrow question this year. It's kind of the whole enchilada where they are really going to decide whether, in the plainest terms, the words of the 14th amendment mean what they say.

Al Franken

It sounds like from the arguments that they're going to decide against Trump on

Dahlia Lithwick

this, it looked like it. It was very, very clear that, first of all, John Sauer, the Solicitor General, wasn't prepared for some, like, very basic, basic questions. At one point, he said, quote, a billion people are one plane ride away from having a child who's a US Citizen. It's a new world. Right. This is the idea that people just come here and have citizenship, tourism. So he said, it's a new world. And John Roberts just sort of tartly snapped back, but it's the same Constitution. He wasn't prepared to answer Neil Gorsuch's questions about Native Americans and citizenship. So he wasn't prepared. And I also think asking the court to go so. So, so far away from the plain meaning and the intention of the 14th Amendment really felt like a bridge too far. So I think this is one of a very small handful of cases to be sure that Trump looks like he's going to lose.

Al Franken

Good. Okay. Mullen v. Doe. Now, this is about Temporary Protected Status, or tps. This is yet to be decided. TPS does not routinely get revoked. Right. I mean. Right, yeah. So Trump has attempted to revoke TPS from like 350,000 Haitians and a thousand Assyrians. And this case is brought before the court. What are the arguments? Like, how do you think this is going to go?

Dahlia Lithwick

So this is just to be clear. This is a program created by George H.W. bush in 1980 and the idea is essentially it's very much temporary and it's to protect immigrants from being deported to countries that are deemed unsafe. And this is not, it does not grant you any rights. It just grants temporary legal status and work authorization for 18 months and it can be renewed if the conditions in your home country don't improve. It's not a pathway to citizenship. It's not, it's not anything like nefarious. And since 2010, DHS has extended Haiti's TPS designation due to all sorts of instability in that country. And so it's not like doing anything bad. And as you say, there's 350,000 Haitians living in the US and DHS and Kristi Noem just summarily kind of said, nope, we're going to revoke it for Syrians and Haitians. I think that in some ways, even though this case really flew under the radar, it is so, so consequential. And just in the last couple of days, we've seen reporting that DHS didn't do any of the things that they were supposed to rely on or any of the processes they should have done to end the protections. And so now we're seeing the plaintiffs in this case the saying, please don't decide this case at all. You should, you know, dismiss it as improvidently granted because the DHS misrepresented the basis on which they revoked it. So let's see what happens. But it will have huge consequences.

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Al Franken

There are two cases challenging laws in about half the states that ban transgender athletes from competing in women's sports. And tell me about those cases.

Dahlia Lithwick

So you'll remember that just about a year ago, the court decided by a 63 vote to uphold Tennessee's ban on certain forms of medical treatment right for transgender minors. And in some ways I think open the floodgates for, as I said, what's been a sort of litany of challenges to LGBTQ kids. So there's two cases here. One is Little v. Hickox, which is a college student in Idaho. The other is West Virginia versus bpj, and that's a high school student. And essentially both of the plaintiffs in this case are challenging laws, as you said, in about half the states that ban Transgender athletes from competing in sports saying that, you know, they have an unfair advantage.

Al Franken

Now, this is pretty rare, isn't it? I mean, that, I mean, is this kind of a right wing political thing, which is we're gonna ban transgender athletes, but does it happen much?

Dahlia Lithwick

So the high schooler BPJ in the case, out of West Virginia is literally the only trans athlete in the entire state. Like, it is so absolutely rare. But you'll remember, I mean, I'm old enough to remember Trump in this last election cycle, just flooding the airwaves with fear mongering. Right. They put so much money into ads threatening that this is what was happening. You know, that, that, that transgender ad.

Al Franken

Yeah. So it works for them. It's a, it's a political issue. That's what it is. I mean, what are they saying? Are they saying like a, I don't know, a trans gender girl became a transgender girl so that she could get a basketball scholarship to college or something? What are they suggesting here?

Dahlia Lithwick

They're saying that they have just legitimately unfair advantages, you know, that the fastest girl swimmer is always going to be slower than the slowest boy swimmer and that there are unfair advantages. I mean, the problem is that the opponents of the band say, and I think they're not wrong, these blatantly discriminate on the basis of sex in violation of both federal law and the Constitution. And that, you know, in 2020, the court ruled that federal law barring sex discrimination applies to trans citizens. So this is really in some ways a shot at the heart of that one outlier case in 2020 that said, no, when we say, you know, discrimination on the basis of sex, we're including trans in that case, employees. And here I think that you're exactly right. They're trying to say this fundamentally is different because this isn't about workers, this is about sports and unfair advantages. So I think in some sense, this court has opened the door in the last couple of years to incredibly draconian treatment of, as I said, not just, you know, remember last year, the court was squawking about a book, you know, that was being read to little kids in classes that, God forbid that the court was worried that it was evangelizing kids to accept that some kids have gay dads. So I think this is of a piece where this court is really aligned with the Trump's political, as you say, football. That is, we are just gonna sort of other and demonize gay and trans kids.

Al Franken

Okay. There's a couple of cases on whether Trump can fire people who Work in agencies is the Rebecca Slaughter case. She's a commissioner in the ftc, Right?

Dahlia Lithwick

Rebecca Slaughter is an FTC commissioner who, by the way, it looks as though the court is likely to let Trump summarily firing her standard, even though it's very clear that the law governing removal from these agencies says you can only do it in cases of, quote, inefficiency, neglect of duty, or malfeasance in office. Trump alleged none of this against Rebecca Slaughter. He just fired her in an email and then said, no, her remaining in office is inconsistent with his administration's priorities. But when she challenged this and a federal court said, yeah, you have to reinstate her, the Trump administration ran right to the Supreme Court that granted the request to intervene and cleared the way, you know, for her to be removed. So it looks like having done that, that the court thought, hey, she's going to lose when it gets to us on the merits. Now it's at the court on the merits. It looks like Rebecca Slaughter is gone from there.

Al Franken

Be history. Yeah, okay. They also at Lisa Cook, this is. That's a really big one. She's, of course, on the Fed. Right. This is one of these Bill Pulte things. When he's head of the fhfa, he kind of researched the enemies of the Trump administration and found some mortgage problems. At least Cook had said that two of her residences were primary residences and so that she got a lower mortgage rate or something like that. And people do, you know, accidentally do this kind of shit all the time. Right. Scott Besant, the Secretary of treasury, did the same thing.

Dahlia Lithwick

I mean, she utterly denies that she committed mortgage fraud. Even at oral argument, some of the more conservative justices were like, what now? Like, this doesn't sound like it was some dark and sinister plot. It sounds like mistakes were made. So I don't think that anybody at the Supreme Court thinks she did something terrible. And, you know, everybody is on the hook for mortgage fraud. That's the new drug of choice when they go after Trump's enemies. But what's really interesting after almost two hours of oral arguments about Lisa Cook, is that the justices did seem, in a way they clearly are not, to Rebecca Slaughter, very sympathetic to Cook. And it's just, this is one of those things where. Because you're going to be like, but, Dalia, what's the difference? Is it the difference between the FTC and the Fed? And the answer is, no, it's just money. It's because there was an unrelated case last year where the court backed Trump's power to just fire labor board members, again without cause. And the majority had this crazy note where they're like, we're not talking about the Fed. The Fed is different. We're not going to tell you why. It's just because it's super duper different. And Elena Kagan, who, as you know, is the funniest justice, actually, she called this the quote, out of the blue, Fed carve out and said that what they were actually worrying about was the markets and, you know, obviously the firing of Jerome Powell. So I think that it's. If and when Lisa Cook gets to stay in her job, when Rebecca Slaughter has to go, it's just because the Supreme Court has a, but not Jerome Powell exception, that maybe the framers, when they were drinking like buckets of Mead, wrote into the Constitution in invisible ink, but more likely it's just their pocketbooks.

Al Franken

Okay, so you think she's gonna stay? I do, yeah. And this was about Trump wanting to replace her and try to get someone who would lower interest rates.

Dahlia Lithwick

I mean, he's been threatening Jerome Powell's job like, you know, from boyhood, I think. I mean, this is just one of his pet things. And he keeps, like, inching up closer and closer and thus far, you know, it looks as though. It looks as though the court has, as Kagan said, a carve out, you know, for. For Lisa Cook and the Fed.

Al Franken

Let's talk about some of the election cases. I'm convinced that Trump is going to try to steal the midterms. Talk to me about Watson v. Republican National Committee. This is Trump wanting to get rid of mail in ballots that arrive after election Day and whether they can still be counted.

Dahlia Lithwick

It's a challenge to a Mississippi law that allows mail in ballots to be counted as long as they're postmarked by and received within five days of an election. Right. Lots and lots of states have all sorts of provisions that allow mail in ballots to be counted late. And it looks, and this is really worrisome in the larger project of vote suppression, that at oral argument, I would say most of the justices looked like they were ready to uphold a lower court ruling that federal law somehow requires all ballots to be received by Election Day, and that will be hugely consequential.

Al Franken

That's insane.

Dahlia Lithwick

Yes. There are 19 states that have similar laws to Mississippi's. And you're going to say it. So let's say it together. This is a state matter, like states decide election law, not Donald Trump. So it will really, really harm the. The states that allow mail in ballots to arrive a little bit after the deadline.

Al Franken

Let me ask you, you've been very consistent in saying that if any of these cases don't go Trump's way, the media will insist that this is a very moderate, sane court that is pushing back on Trumpism. Didn't the court really pave the way for Trumpism as we as we know it?

Dahlia Lithwick

Yeah, this is the problem I have with the sports booking that we do in the last two weeks of the term, where we look at each case as though it's like a science experiment. And then at the last, you know, day of the term, we see all the charts and the graphs that say, look, sometimes they're eight to one, and sometimes they're unanimous. And so clearly, this is not a 6:3 court. And I just want to note, every single case but one that came down yesterday was 6:3. On partisan lines, this is a 6:3 court. But more to the point, and I think the point you're raising, and it's really important, when we talked about birthright citizenship, and you said to me, like, well, wait, maybe the court's actually not going to uphold Trump's ability to rewrite the Constitution in invisible ink. Like, we have to be really careful that when the court does that, we don't, like, hold hands and sing around the campfire, that this is a really sane, moderate court. And so I think what we need to do is, you know, Trump has lost. And we talked about the shadow docket. He's won almost every emergency appeal he's brought on the shadow docket. I think he lost one about removal to seekat prison. He lost, won about sending troops to Chicago. To Chicago. That's it. He wins all the time. So to say, hey, because he lost twice on the shadow docket, but won like the other 89% of the time is to just get the math wrong. And so the same is true on the merits docket, Al, like, the fact that they bat away one or two utterly bananas cases does not make them, you know, a centrist, moderate court. And I would say the Overton window, where Trump thinks, like, I'll just bring this case to the court because maybe I'll get it. That's the real issue. Right. If Trump didn't think he owned this court, he wouldn't try to bring birthright citizenship to the court. He wouldn't try to do TPS rescission in front of this court. And so I think the thing that I really feel strongest about is that to say that this court is a breaking mechanism on Trump is demented. This court is rocket fuel for Trumpism. And whether it's the Colorado case from 2024, Anderson, where the court wouldn't let Colorado kick him off the ballot under the insurrection clause, whether it's the immunity case.

Al Franken

Okay, well, let's revisit that. I mean, that was. Colorado wanted to kick him off the ballot because what was the thing. Because that he had basically tried to deny the 2020 election. Right, right.

Dahlia Lithwick

He was part of fomenting an insurrection. And the state of Colorado said, this is in the Constitution, you can't have these folks back on the ballot. We choose to take him off. And the court said they couldn't. And you know, a very short while later, the court said he's got almost maximalist interpretation of immunity. Right. Of presidential immunity.

Al Franken

Are they gonna ever regret that? Giving the president immunity? Not this court, I guess.

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Dahlia Lithwick

They don't appear to regret it. I mean, I think that the paradox of this court is they have single handedly this Roberts court. And like we can think of so many cases we've talked about over the years, right, Doing away with the Chevron doctrine, you know, the political questions doctrine. Like time and time and time again, this court has created an almost imperial executive branch, right? And now they say, oh, but we're the imperial Supreme Court court. So we created, we're the, the deciders. And we have created this like monstrous, bloated theory of executive power which by the way, they did not confer on Joe Biden. Right. You'll remember loan forgiveness.

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Dahlia Lithwick

You'll remember Remain in Mexico, all the Biden programs they struck down, but they've created a sense in Donald Trump that he has almost boundless power that he cannot be checked. And the only thing that can check him, especially in an era with a supine Congress, is this court. And so you have an imperial court creating an imperial presidency. And I think it works out okay for them because when he gets out crazy far over his skis like he does in birthright citizenship or God forbid, firing Jerome Powell, they'll boop him on the nose and make him stop. But they're the deciders and I don't see why they would regret that. This is overwhelmingly aligned with their conservative political values.

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Al Franken

Now, I. I've heard some folks say they think MAGA is, is going to try to go after same sex marriage again. Is. Is that actually possible? I mean, they would need what, four votes to just get it back before the court?

Dahlia Lithwick

Yeah, you need four votes to take a case, but five votes to win it, Right? You don't want to take a case unless, you know, you've got that fifth vote. You know, we're recording this on the four year anniversary of Dobbs, and I remember when Dobbs came down reversing Roe v. Wade, you know, we had a whole sort of literary ode by Clarence Thomas of the other cases that were in the crosshairs. Right. And he certainly wants to go after marriage equality. He says it has no basis in the Constitution. I'm not sure that even if the court was presented with a good vehicle for doing that. Remember, Kim Davis wanted the court to, to take her case and they didn't. You remember she was the county clerk who refused to solemnize marriages.

Al Franken

Oh, right, right, yes.

Dahlia Lithwick

So she was hoping that the court would use her case to do away with Obergefell. The court opted not to. I certainly think if the question is here we are post Dobbs or the underpinnings of marriage equality, very vulnerable and fragile after Roe v. Wade fell. They are absolutely. And the same people who struck down Roe would strike down marriage equality. But if the pragmatic question is are there 5 votes on this court to upend marriage equality, I'm not sure there are for the same reason. Just to go back to the day drinking case, I think that gay marriage has become such a part of the fabric of American life that, you know, Brett Kavanaugh would have to look at his daughters. You know, John Roberts would have to look his kids in the eye in much the same way they can't look their kids in the eye and say pot is super bad. I think they probably don't have the stomach to say, or at least five of them don't have the stomach to say, let's do away with Obergefell. But I do think for, for the same reason that we have seen this court willy nilly turn over precedent in one case after another. I don't think they care about overturning precedent. We're in a kind of a brave new world now where they do what they want to do. And so the question you're asking is, do they want to do it? And I think my answer is not yet.

Al Franken

Let me. Okay, Trump's just outrageous corruption of this, this family. The UAE bought half of World Liberty Financial of the family crypto firm and for a half a billion dollars. And then there's the plane from Qatar. There's the pay for play pardons. There's just incredible. The family has increased its wealth by billions of dollars. Just and a half. Do you see for any eventuality that this could make the way to the court or not for a while.

Dahlia Lithwick

So just one kind of big thought and then I'll answer the concrete question. The big thought is, I remember in the first year of the first Trump administration, we talked nonstop about the emoluments clause. Do you remember the emoluments clause? Like we really thought that was the Hill we were going to die on. Right. Presidents just cannot take lavish gifts. Certainly not from foreign actors. Right. There's a foreign emoluments clause. There was tons and tons of litigation. And like, let's be clear, it didn't go anywhere. Like, nobody erased it or whited it out of the Constitution. We just stopped fighting about it. So I think one thing we really have to think about is why we let things slide away. Right. And then I think for sure, for sure, the best example I can give that that's the most like of the moment is this $1.8 billion slush fund, which is just, I mean, corruption on top of corruption. Right. This is supposed to pay out victims of, quote, weaponization.

Al Franken

And Blanche said that they weren't going to do it, but he wouldn't sign it. He wouldn't put it on paper.

Peter Ogborn

Right.

Dahlia Lithwick

So this is in litigation. Different groups have sued on different bases.

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Dahlia Lithwick

Two of the officers who were harmed, but, you know, one of the big lawsuits resulted in a court blocking it, you know, and a judge essentially said to the Justice Department what you just said, which is, please provide some evidence that you are not going forward with this thing because it sounds like you're not willing to say that. And they literally are. It's just comedy gold. Because Todd Blanche is just like, no, you don't need sworn statements from the Justice Department because we're just telling you it's cool, we're not moving forward. And this is really dangerous. Also saying that you can't. It's a separation of powers problem for a federal judge to even ask for compelled testimony from executive branch officials. And even as recently as this week, we've got this, like, snotty statement from the DOJ in the same litigation saying that they, quote, reconfirmed that they are complying with this court's orders and no money has come into and out of the anti weaponization fund, which is not the same thing as saying, the state's gone, so they're just kind of lying liars. And it is very. It's this endless process of trying to nail DOJ jell o to a wall. But these cases, like, overwhelmingly have stopped Trump. And maybe more importantly, and this is one happy note, resulted in judges from across the ideological spectrum just saying to the Justice Department's lawyers, you're a bunch of lying liars and I don't believe you anymore.

Al Franken

Yeah. On amicus, you talked about a grand jury where they were lied to by federal prosecutors over and over again.

Dahlia Lithwick

Yeah. And there was a time, I know it's outside the scope of what we're talking about, but there was a time when judges would take what Justice Department lawyers, what federal prosecutors said, as if not like demonstrably true. Like, at least with the presumption of truth. And now we have judge after judge, as I said, across the spectrum, saying, I just don't even afford you this quote, unquote, presumption of regularity anymore because you're just untruthful with me and some judges even threatening to bring sanctions. And it really does raise questions about what the Justice Department would have to do to ever, ever regain the faith and the confidence of a judiciary again.

Al Franken

Okay, looking ahead to November, I'm convinced that Trump is going to try to steal the midterms. So we kind of talked about this. How many ways do you see him trying to do that?

Dahlia Lithwick

More than my fingers on my hands. I mean, we've talked about two on this show, right? We've talked about attacks on mail in voting. We've talked about the race to the bottom for racial gerrymanders. Right. As soon as the court decides Calais, we have a whole bunch of states who are like, we want to do a racial gerrymander too. Right. So we're seeing blanket efforts at vote suppression that we've already talked about. But I think that the really important thing I want to highlight here is that there's two big projects that are the sort of the lodestar of what the Republicans want to do. One is undermine confidence in elections generally. Right? Convince people not to vote. It's dangerous to vote. There's no point in voting. You know, all elections are stolen, right? 2020 was stolen. 2016 was stolen. Every election for all time was stolen. Right? So to, to suppress confidence that the machinery of voting works. That's one play.

Al Franken

Well, they don't say 2016 was stolen.

Dahlia Lithwick

No, I was just counting backwards by four party tricks. But, like, I think that there is a real desire to convince people that election fraud is rampant. You know, we've been hearing this for them. I mean, certainly since you and I have been talking, you know, we're busing in busloads of, you know, Mexicans. We are. People are voting, you know, under Mickey Mouse. We all know the data. The Brennan center puts it out every single year. You know, the chance of a person committing in person voting fraud at the voting booth is like less than being hit by lightning. It would be insane for people to try to vote fraudulently because you will get, like, lifetime criminal penalties and you will make no difference. So it is dumb. But they're trying to whip up this idea that elections are all stolen. Right? And that's why you get like one play after another after another that convinces people that the elections are stolen. And then the other, the other pincer here, the other move is to convince people that we have to solve for this by doing away with vote by mail, right? By doing away with, you know, souls to the polls and drives to get people to their polling places, by doing away with any number of projects. And so you convince people, you know, this is voter id, right? Anything you can do to convince people that if we do something about all this rampant voter fraud, then the elections are protected and it's just a way, as you said, of throwing more and more people off the rolls. Right.

Al Franken

They continue to collect voter data and blue states aren't cooperating. But in red states they have, you know, purple districts and they take people off rolls, right? And they look at that data and do that.

Dahlia Lithwick

There's been a huge effort to, in fact, they were using it, right. When they, when Tim Walls was saying, you know, get, get your masked goons off my streets, they were like, only if you turn over all your voter information, right? So there's a. They condition it on all sorts of things. And you're exactly right. They, you know, there was an effort to get DHS to coordinate with the Social Security Administration to compile, you know, all the vot, and now ordering the post office to refuse to deliver mail in ballots to anyone who's not in this database. So this is, it's one of those whack a mole efforts where anytime something is shot down, they come up with something even dopier. But there's so many dopey plays going on. And I think also, and it's really important to lift this up, one of the reasons they wanted to send masked National Guardsmen and masked federal agents onto the streets of big Cities, right, in LA and in Chicago and in Minneapolis and in D.C. is to scare people who are like, huh, when I go to the polls, is that what I'm going to encounter to normalize that? And I think one of the things we just have to keep reminding ourselves is that this is the play. You know, they're polling terribly, they're poised to lose one, maybe both houses. The way, the only way to circumvent that is to suppress the vote. So then it's just this, like really shitty conversation we have to have about are we going to let them bust our confidence in the power of every vote to matter? And I think that the answer has to be no. But, like, we have to be smart. We have to be smart and see around the corner and see all the ways that it's that's coming.

Al Franken

Okay, let's go to court reform. I want to ask you about. There's talk about reforming the court, things like 18 year terms and term limits or just expanding the bench. That's not going to happen. Right. Or how can that happen? I guess if Democrats win the 2028 election and take both, have both houses and get rid of the filibuster, they could do that.

Dahlia Lithwick

I think that all of the things you have just mentioned can be done. Right? You can have term limits, you can expand the court, you can add. There's nothing in the Constitution that says there are nine justices. We've had 12 justices. We've had six. You know, historically, there's nothing magic about the number nine. You can add seats. You can have a seat for every one of the circuit courts, which is what we used to do. You can say we need super majorities when the court overturns an act of Congress. You can say there's mandatory retirement ages. There's a billion things you can do. And it's probably worth pausing to say there is no Supreme Court in the world that has as much protection in terms of creating a gerontocracy that rules over us until forever and has no age limits, no term limits, no jurisdiction constraints. So we could change all that. Now, you're right. There are constitutional questions about, you know, how long you can serve. The Constitution is pretty clear about that. But anything that's not explicitly in the Constitution should absolutely be tried and tried and tried again. And I think, and I know this dovetails with the next question you're going to ask Al, but I really think that the learned helplessness of oh, Dobbs happened and it really sucked and we hated it. But then what can we do? We wait for someone to die. You know, oh, they overturned Chevron and we're really sad. What are we going to do? I don't know. We're going to be super sad. Oh, the court granted the president immunity from prosecution in virtually all circumstances. I'm super sad. Like, we have to just stop up thinking that it has to be this way. And so my view of this is do it, do it all, try it again, do it harder. But like, the notion that we can't touch the court because Sam Alito goes before Congress and says, you can't touch the court. That's not working. And it's never worked. And we have to just be like super brave and say they kind of work for us, we don't work for them.

Al Franken

Well, talking about Alito and Thomas I guess. What about ethics rules for the court?

Dahlia Lithwick

So this is that same double bind where every Single other Article 3 Federal judge has an enforceable code of ethics that they have to abide by. And if they don't, it's enforceable against them. And only nine people are not bound by it. And it's the nine justices on the court. And they variously say all sorts of goofy things like, well, we can't enforce it against ourselves or, well, you know, we don't want to enforce it against each other. We so awkward at dinner parties. Or, you know, we can't have eight justices deciding things because we'd always have, like, they have lots of reasons that it can't be enforced as against them. But for absolute certainty, beyond a shadow of a doubt, there needs to be an ethics code that says, like, Clarence Thomas cannot have a wealthy donor who like, buys his mom a house. Right. Or pays for his godson's college. Sam Alito can't take trips on planes to go salmon fishing with people who have matters pending before the Court. Like, this is not hard. And the rules exist. And the fact that the justices continue to say to us, we don't need them because we're awesome and we continue to say, good answer again, is a form of learned helplessness.

Al Franken

You've talked about popular constitutionalism, okay? And so I want to end maybe on a hopeful note. So what is that? What is the whole talk about the notion of popular constitutionalists?

Dahlia Lithwick

The notion is, and we're going to be doing a series on this on amicus in July, but it's this long standing idea that the idea that the Constitution and constitutional meaning belong to the people and not nine justices on the court, the scholarship that says that every single time we've had a profound shift in constitutional meaning, it hasn't come from the justices, it's come from the people. And that the people not only get to decide, but have to decide what the Constitution means time and time and time again. It wasn't because the justices were like, huh, I think the Constitution should maybe recognize women or formerly enslaved people. It's that the people demanded it and demanded to be read into the document. And so I, what I am trying to think about right now, because it's the only thing that saves me from the abyss, Al, is that all those people, like on the streets in Minneapolis who were like, I don't think you get to do this. Or the people at the no Kings marches who said, I don't think this is right, or the people who protested Elon Musk taking over Doge. Like, they know in their bones alone what freedom is and what democracy is and what equality is. And I think sitting around and waiting for the Court to tell us what it is is like leaving it all on the table in a way that scares me a little. And so, again, still searching for a name for what this is. But I think that we have to just be really, really vigilant. That. And maybe this is what I mean. Michael Waldman at the Brennan center always says we have to fall out of love with the Court. Like, we have this idea that because the Court had a good 15 year run, you know, in the Warren era, that the Court is like the magic angel that confers rights, you know, because they got it right in Brown and in Loving vs. Virginia, and they got it right in Roe and they got it right in Obergefell. The Court has gotten it wrong for almost all of American history. The Court is, by design a revanchist, hyper conservative, moneyed, interest preserving institution, you know, who gets it right when things turn around. Like, the people who brought us Obergefell. Right, the people who brought us Roe. And so I think we have to stop thinking that if some magical. If Clarence Thomas is gone and some magical being comes down, and then we could get the Court to give us all the presents again. Like, that's not what the framers intended, and it is not what the Constitution intended, and it is not even any version of democracy that you and I understand.

Al Franken

Well, thank you, Dahlia. It's just having you on the show over the years has been just a blessing. We covered a lot today. You know, this is my last one. What should my audience be following? What should people be keeping an eye on?

Dahlia Lithwick

Well, okay, so I also want to say it has been one of the honors of my life to be on your show, to be on Air America, to be your friend. And thank you for having me. I think what I want to say is this is not the time to be the popcorn emoji. Like, this is the time to be fierce and brave about voting, about the upcoming elections, about protecting vulnerable communities, about fighting to make, as I said, constitutional meaning. And. And I think that I look at the polling numbers around the court. I know you do, too. They have plummeted in the last couple of years. I think that Americans are really starting to understand that this is not a sane way to decide every hot button issue that undergirds all of our freedom and dignity and equality. And I think that. That it's not a hard thing to go from, Huh. I wonder what the court's going to do for that last week in June and then like go on screen save until next term. It's a hard, a very hard muscle. But I think it's, we all have it, which is how am I going to be a part at the state level, my state supreme court level, my school board level, my county level, you know, whatever it is, of making sure that democracy survives? Because I think you know as well as I do, like, it's not a sure thing that free and fair elections continue. We've seen what's happened in Poland and in Hungary and around the world. We know that creeping authoritarianism, you know, it's not, we're not the only country experiencing this. And so I think that you know as Tim Snyder or Rus Ben Guillot or your friend Norm Ornstein, you know, so many people remind us this stuff happens from the ground up, all the good stuff. And I think we have to just find our lane. Not all of us are superheroes, but like find your lane and like get 10 people registered to vote and get them to the polls.

Al Franken

Thank you. Love you.

Dahlia Lithwick

Love you too.

Al Franken

Well, I hope you enjoyed listening. That beautiful music is by Leo Kottke, the great Leo Kotke. I want to thank Peter Ogborn for producing this podcast. Thank you for listening all these years. We'll talk again somewhere real soon. In the meantime, let's all keep up the fun.

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