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Dissent Episode One: Tipping the Balance

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Last year, the Supreme Court’s decision to overturn Roe v. Wade and demolish nearly half a century of abortion rights put to rest any remaining questions as to how far the 6-3 supermajority was willing to go to realize its extreme right-wing vision. With the court’s 2022-2023 term in full force, what rights are at stake this year? On the first episode of Dissent, an Intercepted miniseries, host and senior Intercept reporter Jordan Smith is joined by Jordan Rubin, a legal analyst with MSNBC and former prosecutor for the Manhattan District Attorney’s Office. Smith and Rubin outline the Supreme Court’s term and discuss the major implications of the decisions ahead.

[Intercepted theme music.]

Jordan Smith: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent, an Intercepted miniseries about the Supreme Court.

Last summer’s Dobbs decision — overturning Roe v. Wade and nearly 50 years of abortion rights — dropped like a bomb. It was the first time the U.S. Supreme Court had acted to take rights away from individuals.

Terry Moran (ABC News): [Sounds of protest in the background.] At the Supreme Court today and historic upheaval. In a sweeping ruling that overturned half a century of precedents, five justices ended the right of American women to choose abortion under the Constitution.

Newscaster (Channel 4 News): Fifty years’ worth of women’s rights in America overturned in an instant, as the Supreme Court whose very purpose is to protect civil liberties, took away the constitutional right to abortion.

Nick Schifrin (PBS NewsHour): From anger and anguish to celebration and gratitude, the Supreme Court’s decision to overturn Roe v. Wade shook national politics and sparked a national response that’s playing out in cities and states across the country. As of today, abortion is illegal in eight states that had so-called trigger laws in place for this very moment. Five more states will ban abortion within weeks. And already today courts have blocked bans from going into effect in several other states.

JS: I wasn’t surprised it happened. I’ve covered reproductive rights for a long time, and there were plenty of us who had warned about this moment for decades. Over the last number of years, it was increasingly clear that Roe’s days were numbered. 

This all started with Senate Republicans blocking President [Barack] Obama from seating a judge in 2016 after Justice Antonin Scalia died. 

Charlie Rose: President Obama’s choice, Merrick Garland will go to Capitol Hill this afternoon to meet with Democratic senators.

Gayle King: Republicans are standing by their vow not to consider Garland, or any nominee, before the November election.

JS: Instead, they held that seat for Trump, who had already announced his intention to put on the bench justices that would overturn Roe, never mind what those nominees said during their confirmation hearings.

Justice Neil Gorsuch: It is a precedent of the United States Supreme Court; it was reaffirmed in Casey in 1992, and in several other cases.

Justice Brett Kavanaugh: And one of the important things to keep in mind about Roe v. Wade, is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.

JS: After the death of Justice Ruth Bader Ginsburg, Trump and his allies rushed through the confirmation of Amy Coney Barrett — even as voting in the 2020 presidential election was underway. 

President Donald J. Trump: It is highly fitting that Justice Barrett fills the seat of a true pioneer for women, Justice Ruth Bader Ginsburg. Tonight, Justice Barrett becomes not only the fifth woman to serve on our nation’s highest court, but the very first mother of school-aged children to become a Supreme Court justice. Very important. [Scattered applause.]

JS: With that, the court lurched right, creating a 6-3 ultraconservative supermajority.

Given all of that, it’s maybe not surprising where we find ourselves. But I think for a lot of people it wasn’t until the Dobbs decision dropped that they were like: Wait — what is happening?

This supermajority court seems inclined to be as maximalist as possible — to do all the things they’ve long pined for: undermining democracy; stripping their disfavored groups of individual rights; finding a way to make sure we’re all as unequal under the law as possible.

OK, so perhaps it isn’t so surprising that public opinion of the court has tanked.

Still, there are a couple of bright spots — not the least of which is the historic appointment in 2022 of the nation’s first Black, female Supreme Court justice, Ketanji Brown Jackson.

Justice Ketanji Brown Jackson: The separation of powers is crucial to liberty. It is what our country is founded on. And it’s important, as consistent with my judicial methodology, for each branch to operate within their own sphere. That means for me that judges can’t make law; judges shouldn’t be policymakers. That’s a part of our constitutional design and it prevents our government from being too powerful and encroaching on individual liberty.

JS: Amid this landscape, it seemed like a good time to break down for listeners some of what is happening now in the Supreme Court — and to talk about where we’re headed.

Joining me now to do that is Jordan Rubin, a legal analyst and opinion writer for MSNBC Digital. He previously served as a prosecutor for the Manhattan District Attorney’s Office and is the author of the forthcoming book “Bizarro” about the secret war on synthetic drugs. Prior to joining MSNBC, he was a legal reporter for Bloomberg Law, where he covered the Supreme Court.

Jordan! Welcome to our first episode of Dissent.

Jordan Rubin: It’s great to be with a fellow Jordan — 

JS: [laughs] 

JR: — and more importantly, with a journalist I greatly admire. So thanks for having me.

JS: Oh, that was very sweet of you. And it is. It’s really nice to actually talk to Jordan. I don’t get that all that often. [laughs]

JR: We have to stick together.

JS: I know we do. We do. We’re a tribe. 

So let’s just jump right in. How about that? 

JR: Let’s do it. 

JS: When the Dobbs decision came down last term, I’m curious what your reaction was and what it signaled to you about the direction of the court.

JR: Yeah, so it was weird for a number of reasons. But for one thing, we already knew it was coming, because the opinion leaked in May. There was no real reason to doubt that’s what the opinion was going to be. The court all but admitted it in Chief Justice Roberts coming out and proclaiming this was like an act of war on the notion of law and justice itself — the leaking of the opinion, not what they were doing with the opinion.

JS: [laughs] Right.

JR: Nonetheless, though, to me anyway, it did still feel jarring when it came out, when it was actually real. Like, wow, they actually did it. Because we could spend an hour talking about the leak itself, because there was some speculation of what the leak was trying to accomplish by whoever leaked it was doing: Was it liberal trying to get a Republican to change their vote? Was it a further-to-the-right Republican trying to hem in any of the relative middle Republicans, so they wouldn’t have gotten swishy?

So for those reasons, and for every single reason since Roe has been fought against for the last 50 years, I still felt it was jarring when it was actually real, even though we knew it was coming. 

JS: Yeah. 

JR: Last year, there was another revelation of an alleged leak from much longer ago, from the Hobby Lobby decision back in 2014, related to the Obamacare contraception mandate, where the New York Times and others had this really explosive reporting that there was this religious-right campaign to try and infiltrate the court, to bolster the justices, sort of similar to what I said about the right-leaning theory of the potential Dobbs leak to make sure they didn’t go squishy in their weaker moments. And that as part of this campaign of rich donors wining and dining the Republican justices, Alito leaked his Hobby Lobby opinion, not publicly — 

JS: Right. 

JR: — like the Dobbs opinion leaked, but through this wining and dining conservative network that allegedly made its way back to Hobby Lobby itself. And that was through the Rev. Rob Schenck, who became this whistleblower figure. And, again, [we] could talk about him for an hour.

JS: [laughs]

JR: But just to make a long story short, it wasn’t the only leak revelation or alleged leak revelation — not just a leak, but having to do with the abortion issue, too. And so this, again, I think it emphasizes how the abortion issue has been the whole ballgame at the court and in politics for at least the last 50 years. And this all goes to that.

JS: Yeah, absolutely. So now that we have this 6-3 super-conservative supermajority, how does it affect the decisions that the court makes in consequential cases? But also, how does it inform the direction that the court moves each term, if that makes sense?

JR: Sure. So, and the Dobbs opinion is a good example — the perfect example, really — because previously over the last at least a couple decades or so, before we’ve had this most recent iteration, it was Justice O’Connor or a Justice Kennedy who had been that middle seat. I mean, both Republicans, by the way, just to show kind of the relative terms in which we need to even talk about compromise at the court. But there was the possibility — and sometimes it really did happen — that the 5-4 decisions would go the relative-left way as opposed to the relative-right way. 

And then it came to a point where Roberts was in the middle, right? And just given how sort of mind-blowing that is to think about, even looking back to the time of his confirmation, around Alito’s confirmation, which was around the same time too, that that would be the center of the court. But what you have now is that Roberts is on the left of the Roberts Court — as, again, mind-blowing, as that is to think about. 

And the reason that the Dobbs opinion is such a good illustration of that is because you had the five Republican appointees besides Roberts, who joined really the full-throated overturning of Roe v. Wade, and you had Roberts writing this separate opinion, which would have upheld the law — which by the way, would have been certainly a further curtailing of abortion rights. I mean, if that had been the majority of opinion, that would have been significant in its own right, that’s just not where we are right now relatively in talking about the court. But that’s all to say, those other five don’t need Roberts anymore. That’s the bottom line. He could have had a full-throated dissent, and the results would have been the same, potentially. So I think that itself shows exactly where we are. That’s the direction of the court. They don’t need Roberts. Whether it’s his court or not anymore, people can have that sort of debate, however interesting or not that is about the institution. [But] when it comes to the reality of the decisions, there are five Republican votes besides Roberts.

JS: Well, I guess it’s also related to because there’s this 6-3, I mean, it really sort of impacts what cases they’re gonna — I mean can you explain just a little bit about what it takes to get a case accepted? Because obviously, it’s very consequential [laughs] for who gets to decide at this point, right? This majority that we have.

JR: Right. And I’m glad that you asked about that because this is something that there’s no reason for this to be common knowledge for even just a really well-educated news consumer, it takes four votes to grant cert. a case, to get the court to take a case fully up on appeal, hear an argument, have the decision come down, the sort of life of a case that we’re familiar with in a case like Dobbs. And so when there were still at least four Democratic appointees on the court, they could have at least, in theory, voted to hear a case; it wouldn’t have unnecessarily made sense to hear a case, then they wouldn’t have liked the results that a majority would have then reached, them being in dissent, 

But, again, this is in the same category, you can think of it as not needing Roberts. You have the court able to set its agenda in an even more muscular way. Because who knows? Even within both the Republican and the Democratic sides, each justice has their little pet projects, things that are more or less important to them than the other. When it comes to the big ball game, like abortion, guns, things like that, you know where it’s gonna go. But when it comes to figuring out which cases you can get four justices to agree to take, again, that’s more breathing room that the court as a whole has. Obviously, if you’re a justice looking to get a case accepted, you have to be thinking about what the ultimate result is going to be. So there’s only so much sort of gamesmanship you can have there. 

But again, I would look at that as a piece of setting the agenda is at least as powerful as what you can do. Because when you hear a case being talked about, as say, a compromise decision or a narrow decision, that can be true. And again, we could argue all day about how cases are covered and described and all of that. But you’re missing a little bit of the context if you don’t recall that in almost all cases, the court’s docket is almost entirely discretionary. 

And so if I could give one example of a case that’s being argued this term, this case about the so-called independent state legislature theory. And it’s a voting case, described broadly being heralded as the potential end of democracy, right? And the argument revealed what might be described as either a potential narrow ruling, a potential compromise, a potential of not reaching the farthest-right potential theory of that doctrine. But again, whatever decision winds up coming out in that case, it’s going to be important to remember that this was a case that the court decided to take up and it didn’t have to. And so I anyway think it’s important to remember that when you’re heralding any type of, or complimenting, or whatever you’re doing any type of compromise to make something seem potentially more normal or less extreme than it otherwise is, it’s almost manufacturing a normalcy to things. 

Because the court again, only takes so few cases. It used to take a lot more cases of up on argument, almost twice as many, and not that long ago in its history, either. 

So again, you have so few cases, the justices are almost completely within their discretion setting their agenda. And so even in cases where you might look at that and say: Hey! Depending on what one’s view is that could have gone worse or better or whatever — you have to look at the whole life of the thing to see how it got to the court in the first place.

JS: Right, exactly. It’s a very good point. 

I’m just shifting for a minute here: After Dobbs came down last summer, the court’s approval rating just dropped [laughs] to a quite historical low, right? So we had a Gallup poll that found that 40 percent of Americans actually approved of the way SCOTUS was handling his job while 58 [percent] disapproved. 

In October, the Heritage Foundation’s John Malcolm interviewed Justice Samuel Alito, and asked him about the court’s legitimacy. Here’s this clip:

John Malcolm: You recently stated that “saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.” 

So how do you respond to those who say the court has become a nakedly partisan institution and what is the danger of crossing that line?

Justice Samuel Alito: Oh, everybody in this country is free to disagree with our decisions. There is no question about that. Everybody’s free to criticize our reasoning and to do [so] in strong terms. And that certainly is done — in the media, and in the writings of law professors, and on social media, and in other fora… There is no question about that. 

But to say that the court is exhibiting a lack of integrity is something quite different. That goes to character. It goes not to agreement or disagreement with the reasoning, it goes to character. And someone also crosses an important line when they say that the court is acting in a way that is illegitimate. I do not think anybody in a position of authority should make that claim lightly. That is not just ordinary criticism. That is something very different. 

JS: And then, Chief Justice John Roberts has also commented on questioning the legitimacy of the court.

Chief Justice John Roberts: I don’t understand the connection between opinions that people disagree with and the legitimacy of the court. 

JS: [laughs] OK. So what do you make of the justices’ views that the legitimacy of the Supreme Court should basically go unquestioned?

JR: Yeah…

JS: [laughs]

JR: I feel like those comments almost speak for themselves in their ridiculousness. I mean — no, but really, it’s not that it’s surprising. But I mean, these are smart people, right? Like, these are not dumb people, whatever else there is to say about anybody who sits on the Supreme Court. And could you even imagine that about any other branch of government? I mean, at the end of the day, we’re talking about power here, right? And so it’s our rulers telling us how we’re allowed to react to how we’re being ruled. Right?

JS: [laughs] Right.

JR: And I mean, that’s really the beginning and the end of it. And so what it’s doing, I think, maybe they do have some great counter-argument that they just don’t want to deploy for whatever reason, or maybe it’s a sign that there isn’t an argument. And so therefore, the argument is: We can’t argue and I’m setting the terms of this debate. 

Again, it is a sort of agenda-setting here in the public sphere, though. And so when they’re in the public sphere, and when they are outside, rather, sort of the four corners of their writing, they can seem even less persuasive when they’re kind of trying to convince a regular person about an argument because it just doesn’t make sense. And this isn’t even, I don’t think, a Republican or Democratic thing. This is just, I think, a general commentary about how the law is created and how power is wielded is: Do we look to our elected leaders, the judges who are indirectly, at least, elected, and look to them for how we’re allowed to criticize them? I mean, I just think that to describe that situation is to show how incorrect that argument is. 

And again, people are free to fall on whatever side of the merits or lack of merits of whatever opinion they want, but to say that you can’t talk about it, I mean, I think that shows a lack of confidence in one’s work. It’s being upset. It’s kind of sore winning in a way, which I think was the theme of probably, Justice Alito, in particular, speeches. And there we saw a little bit, to a lesser degree, of Chief Justice Roberts, who doesn’t really go as far out there as Justice Alito, but for Chief Justice Roberts to say that he doesn’t understand the argument, I think that’s just not true. Because he’s one of our smartest lawyers in some respects, or he’s at least smart enough to not be telling the truth when he says he doesn’t understand something that’s very simple. And if he doesn’t understand that, then that’s a problem. I don’t know what to tell you.

JS: I totally agree. I like your point, too, because it does go back to what you’re saying: It’s like an agenda-setting, telling us we can’t criticize them, while meanwhile, they’re fully stocking the court because they have that power and are able to take these things, which is a very good point. So when you think about: Oh, that was a compromise ruling? Well, it’s like: Well, no, they didn’t have to take it in the first place! 

So to me, it feels like all part of a piece, right? Like, we’re gonna take this and just blow up this docket with these crazy cases, and we’re gonna do some damage. But don’t you dare say that we’re doing damage — where they’re the ones like fully in control of what they’re doing. And then acting like it’s not fair to criticize them on the back end? I just think it’s kind of ridiculous.

JR: Yeah, I mean, it’s objectively unpersuasive, really. 

JS: [laughs] 

JR: And again, look, someone could listen to this and think that I have a certain view and say, therefore, my view about that is subjective in some way. But I really think that no matter who is speaking, when you’re talking about one of the most powerful people in the country, it is just not persuasive to look to them to dictate the terms of public debate. That’s where I land on that. 

JS: Obviously, we’re not going to be able to cover all the court cases this term in this mini-series, and we’re not even going to be able to get to all of the particularly notable or consequential cases. 

So I wanted to ask you about a few of the cases that we aren’t going to be able to get to, starting with the two affirmative action cases, Students for Fair Admissions, Inc. v. University of North Carolina, and Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. Can you break down those cases and tell us where we’re at and what the consequences might be?

JR: Sure, it’s fairly simple, which is that the right has been fighting against affirmative action for decades, not super dissimilarly from the Roe discussion we were having. 

If you go back to 2003, there was a ruling that kept affirmative action in place sort of for now. Justice O’Connor, again, then, going back to sort of the swing voice that was there that is no longer there, at least not in those relative terms, said she doesn’t expect affirmative action to be necessary 25 years from now — I’m paraphrasing what she said. Again, lawyers are not known as math experts, but we’re not quite yet there. 

And again, we see here with the newly constructed court, setting its agenda to take up cases for the purpose of quite possibly overruling affirmative action once and for all. And so that’s really the gist of it. And the argument suggested that that’s the way it’s going to go — at the very least, it’s going to be further weakened. Again, sort of similar to the abortion issue in that, coming out of the argument, there’s no question of what the interests are at play; there’s very little debate as to which side is going to win, maybe there’ll be a question as to what the exact words are going to be, but it’s really as simple as interest groups that have been litigating against affirmative action, they have a court that appears prepared to finally take it down, and they just needed to find a case to bring. They’re multiple cases here, and we’re talking about Harvard and UNC that deal with different parts of it, because there’s a private-public distinction. But again, the bottom line is just we’re talking about the use of affirmative action in higher education. And it’s something that the Roberts Court has been skeptical of. 

And again, going back to the discussion about Chief Justice Roberts, who in some ways has been relatively on the left of its court, the race issue is something that he has been firmly almost as far right as you could be when it comes to this issue. It’s something that he has been passionate about. And it’s a theme that we’ve seen in multiple cases this term, this notion of the Constitution being colorblind, whether you’re just not allowed to take race into account. And so that’s, in some ways, the theme of the Roberts Court, or one of them anyway, is in pushing forward this colorblind version of the Constitution and the affirmative action cases are just one of the cases that we see that notion at play this term. And there are others, too.

JS: Except for, I mean, the Constitution by nature is not colorblind. [laughs] Look at the Reconstruction amendments. I mean, don’t they speak directly to race, right? That we come out of the Civil War, and how do we get the 14th Amendment if you’re not saying it’s race-conscious? 

JR: And Justice Jackson brought that point up at oral argument. And it’s been described by some after she did it as sort of liberal originalism — using the tools of the right against them, sort of thing. I don’t know whether it’s originalism or just looking at what the text of the amendment says, and just taking the reality into account. But she has been at the forefront of speaking against this colorblind notion of the Constitution across multiple cases this term, not just in the affirmative action case. But she brings up almost the exact point that you do about Reconstruction, and it was done for this purpose. You can’t talk about these issues without talking about the history of slavery in this country, but in the way that on the right, you don’t want to talk about that in the political sphere, we see that same manifestation in the court, too. And so that view is being laundered through this notion of a colorblind Constitution. And we see that in the Supreme Court cases, that political idea of being ignorant to history as well. 

JS: Yeah.

They’ve already heard a voting rights case as well, the Merrill v. Milligan. What can you tell us about Merrill v. Milligan Court case again?

JR: Right, so we’re on the same theme here, again.

JS: [laughs] Yep.

JR: We’re talking about the Voting Rights Act, which arguably a previous case was one of, if not the most significant opinions from the Roberts Court, which is in the Shelby County case, which in 2013, I believe, struck down a previous part of the Voting Rights Act. And that was Chief Justice Roberts writing that decision, and so he has been at the forefront of that idea, even when he was a young lawyer in the Reagan era, this was a cause that was dear to him. And so he has been able to accomplish that now that he’s on the court. 

And so to make a long story short, you had part of the Voting Rights Act go down in Shelby County. 

And now we have another piece of that that is bolstering up what’s left, in a sense, of the Voting Rights Act, or at least another piece of it. And that’s again in danger as well. So it’s the court further chipping away at the Voting Rights Act — again, against the backdrop of this notion of a colorblind Constitution, that race should or shouldn’t be taken into account where you’re drawing legislative districts and that sort of thing. 

But that’s the general idea, basically: Voting Rights Act further in danger again, this term. That’s the tagline I think, from that case,

JS: Yeah. This is kind of how dorky I am. I literally remember where I was the day that Shelby County came down, and I was just, I lived in Texas — I lived in Texas for a long time — and I thought: Oh, no. 

Because what was at issue in Shelby County was the pre-clearance, right? Where a number of states had to basically get their voting changes pre-approved by the federal government because, I don’t know, spoiler alert, they had a giant racist history, right? Predominantly states in the South, but I don’t think it was exclusively, was it? But I think it’s predominantly southern states. 

So when that went, I just remember thinking: Oh, God — because the Texas Legislature, they just been for years trying to get rid of one person, one vote. And, it just was like, ugh. That’s why I remember it. 

And that’s why here, that was such a crucial piece of the Voting Rights Act.

JR: So the Shelby County case was Section 5 of the Voting Rights Act and the Merrill v. Milligan case, this is Section 2 of the Voting Rights Act, which is barring election practices that result in a denial or abridgment of the right to vote based on race. 

So that’s baked into the issue. Again, race here, and so whether the court has to take that into account. And so you see in Alabama, that would have made a difference in the number of districts where that would have been at issue and so the court wants to take a colorblind notion when looking at that, which will, coincidentally or not, result in districts that are more in Republicans favor.

JS: OK, so I want to open up a little bit further and just say two things — two-parter! 

I’m curious about what cases you are keeping an eye on this term. But also, you made a comment to my colleague, Liliana Segura, when y’all were both at the Supreme Court back in October, that I definitely want to know the answer to: You were saying that there’s some very interesting cases that they’ve taken, but what’s also really interesting are the ones they haven’t taken. 

So I’m curious, which cases are you keeping an eye on? And also, what do you see in the ones that they haven’t taken?

JR: Yeah, so I think that’s a subset of what I said before in terms of the court, one, setting its agenda, and two, taking relatively so few cases. 

I mean, just by way of some background, a typical reason that the court will take up a case is when there’s what’s called a circuit split, or there’s a disagreement among the appeals courts around the country. Again, it doesn’t necessarily have to be in what someone might think of as a political case if you can hold the idea that there’s some sort of law outside politics. I’m not really going to attempt to convince anyone — 

JS: [laughs]

JR: — one way or the other about that. But relatively within that, you know what I mean. If it’s, this circuit says this word means red; another circuit says it means yellow; it’s up to the Supreme Court to sort out, because the idea is that you want uniform application of law throughout the country. 

I mean, there are tons of cases like that, including quite often in the criminal sphere, people who don’t necessarily have well-heeled lawyers, and not to say that criminal cases from indigent people don’t attract that sort of support and make their way up to the court with relative — almost surprising — frequency, given that there is that sort of lack of constituency, but there is just a lot that gets left on the table. 

I mean, just one petition that’s pending that’s sort of interesting to me is this issue called acquitted conduct, which is this really wild situation where — and this is something you tell to someone on the street, and they just wouldn’t believe you that this is a thing — where even if you’re acquitted of certain conduct at trial, it can still be used against you by the judge at sentencing. They can still take it into account. Which, again, you think that you’re acquitted, that means you go home, right? And I mean, that’s true if you’re acquitted of everything, but in a situation where, as is often the case, there are multiple charges at play, you get convicted of one of two crimes, the judge can then take into account the conduct underlying that second crime that you weren’t convicted of in fashioning your sentence. And so it’s as crazy as it sounds — acquitted conduct. 

And so the court is considering a petition on this. And it’s the sort of thing where you would take a look at it and say: How could something like this stand? And it’s happened for long enough, and so it’s not the sort of thing that’s guaranteed for the court to take up. That’s the sort of issue that, again, the court isn’t necessarily going to take, maybe it will, maybe it won’t, it wouldn’t shock me either way, however shocking the underlying issue is, but there are all sorts of even really less shocking issues, that would just be, frankly, not even that interesting to talk about, but that are just important to the functioning of law, that the court often does not take, despite the existence of a clear circuit split. And again, will use its — by choice — limited resources to engage in what might be termed more of these culture-war types of cases that don’t even really produce that significant of a ruling from a legal perspective. 

Like, in the Masterpiece Cakeshop case, which is kind of a precursor to the same-sex wedding website case that’s at issue this term. I mean, you go back to that, and they had just another one of these sort of very narrow rulings that were tailored to the facts of the case that only — the point of a Supreme Court ruling, in theory anyway, is to provide guidance to the people and courts around the country for how to interpret the law. Ideally, at least in theory, and in reality, I would say they don’t really care about the specific facts of the case, or at least, they don’t have to. The point is to try and work out some sort of legal principle. And so again, they’re taking these cases that have these hot-button issues to them, which don’t necessarily produce significant rulings at the expense of leaving the sort of workaday type of issues on the table. Again, they could do both. They choose not to. They could take the more important issues and not take the more hot-button type cases, especially ones that don’t produce any real significant ruling to them, but that’s how they’ve chosen to operate.

JS: So obviously, they’ve already heard oral arguments on a number of cases, but we don’t have any decisions yet. So how does that kind of compare to past terms? And what do you make of that, if anything?

JR: Yeah, so it’s frankly a little weird that there haven’t been any decisions yet, at least just looking at it in terms of the cold numbers, as far as we’re at this point in the term and don’t have any decisions yet. 

Again, we’re talking about this in the context of hearing relatively fewer cases. But even within all of that, we would have expected to have at least some decisions this term. 

Now, there could be a couple of things going on. We usually have the hottest cases coming down at the end of the term, right? If you think about the end of June, for your entire thinking life, it was probably marked by the Supreme Court telling us how some subset or all of us are allowed to live or not, in some respect, right? Those come down later in the term because they take longer to cook. There are dissents going back and forth. There are justices trying to cajole one another to join this or that opinion. But so that means that in theory, anyway, the easier opinions are coming out earlier in the term, the ones that are unanimous. 

And going back to kind of the court’s publicity campaign and the remarks that we saw earlier, we’ll see in some of those same speeches, someone like Chief Justice Roberts pointing out in his criticism of the media, and how we only talk about the 5-4 cases that oh, if you actually were to look at what we’re doing, we’re unanimous most of the time. And it’s just in these 5-4 cases that the media likes to glob on to.

Now leaving to the side that we’re interested in them, because they’re, frankly, more important, and that’s why the justices are disagreeing with them, the fact that we don’t even have those unanimous opinions yet this term suggests that the court’s just not having an easy time, whether that’s a function of it still being not a great environment after the Dobbs leak, and whatever else has been happening at the court. There certainly have been a significant amount of significant cases, relatively, that have been argued already this term. So that could be part of it, too, it’s sort of a fairly front-loaded term, in terms of them having argued a bunch of significant cases already. But still, you have to think there could have at least been something that’s come out. 

And so it’s like: What are they doing? Has the Chief Justice tasked them all to investigate the league? Are they busy doing stuff with that? 

I don’t know. But it’s really not clear. You would think they would have come out with something, especially given how apparently sensitive they are about public opinion, however much they say they aren’t or how we’re allowed to talk about it. Just break us off a unanimous opinion that no one cares about, and then you can have that stat for yourself. But they’re losing even that talking point in not doing that yet, sort of proving the point that this all is contentious because they’re all just sort of making this stuff up. And that’s a function of when you’re filling the docket, too, with all these kinds of pet projects, you’re going to be left with perhaps fewer of these unanimous cases that give you that talking point of: Everything’s usually all good, it’s just in these handful of cases that you in the media like to make a big deal about.

JS: It’s a really great point. 

You’ve talked about this a little bit, but I want to let you go wherever you want to go with it, is about Ketanji Brown Jackson. And you’ve written about how Justice Jackson is challenging right-wing legal claims. We talked about this a little bit. But I would just like to throw it back to you to say: What sort of imprint do you think she’s had on the court so far?

JR: Yeah, sure. So we got to start with kind of the cold, boring math of it —

JS: [laughs]

JR: — just to make clear what we’re talking about before anyone gets too excited or not. 

She’s replacing Stephen Breyer, who was also a Democratic appointee. So it’s a one-for-one trade. It’s not one of these switches like Barrett for Ginsberg that alters the course of the court. So, again, there’s no real change there as far as the direction of the court. I mean, you have to note the significance of the first Black woman justice; again, that doesn’t change anything about the math. So that’s something you have to keep in mind if you’re tracking the result at the end of the day. 

I do think, though, when you look at something like oral argument, which is how the court sometimes is only interacting with the public; sometimes some members of the public’s only interaction with the court is hearing them speak, to hear her bring up some of these issues, for example, like combating the notion of a colorblind Constitution, it’s maybe possible that Justice Breyer would have said something like that — and I’m quite confident that he would have landed probably on the same result as her — but you just can’t pretend that it has the same significance even if they are saying the same words, which they’re not, in having Justice Jackson being the one saying that. 

And so I don’t think that they’re going to be ideological opposites by any stretch, they might wind up being quite similar, but we’ve already seen her have an impact, I think, on how the oral arguments are going, which again, lawyers at Supreme Court will tell you, that is not a significant aspect of the case, it’s mostly done in the briefing. But with the public paying this much attention to the court now, perhaps more than ever before in recent memory, it’s significant that she is out there, bringing up that view, when sometimes maybe other justices won’t.

JS: When you go to the court, it’s just all so formalized. And it’s all of this sort of tradition, and it’s sort of steeped in these fancy curtains, and everything’s just sort of gilded or whatever. And it’s meant to inspire this sort of reverence, right? 

But I don’t know that I — I just don’t know that I believe in it anymore. Just the way that the court is now taking these cases, and some of the hypotheticals that they’ve used, for example, I just sometimes feel like they’re sort of arguing just to hear their point and they just know where they want to go, right? That there’s some very results-oriented judging going on here. 

And it makes me wonder: Why — and Lili and I talk about this all the time — why have we spent all these years trying to understand the law? Why have we invested so much time in the rule of law, and trying to understand it, when it sometimes feels like it doesn’t matter anymore? 

And I’m just curious, if, from the first time you sort of stepped into that court and come through now, and the way that kind of things have played out over the last number of years, do you look at that a different way? Or do you feel a different way about the whole sort of mythos of the Supreme Court? 

That’s like my omnibus question. So take whatever piece of it you want and ignore the rest.

JR: Yeah, I mean, personally, I don’t look at it differently. Because I think I always viewed it in the same way of law being just an exercise of power, just by different means. I think what we’ve seen in recent years is an extreme version of that. And so the court is now kind of like the dog who caught the car. And that’s why they’re mad that people are mad at them. 

And so to answer the question of why, though, to keep doing it, I mean, it’s because of that power question. You don’t have to take it seriously. It’s like the Trump thing; it’s like, literally, but not seriously, or whatever that is. But I mean, you have to cover it for the same reason that you have to cover politicians and the president and everything else. And so you don’t have to respect it. You don’t have to bow or curtsy —

JS: Although I think Alito really would prefer it if you’d do that. [laughs]

JR: I mean — you could show the guy some respect, if I may say.

JS: OK, I’ll give that a shot.

JR: But he wanted me to mention that to you, specifically. 

JS: [laughs] OK. Thank you. 

JR: But again, to me anyway, it comes down to power. And so the reason that that has maybe been expressed less loudly is just because of the composition of the court. And where we started in recent decades, anyway, it’s all because of Roe. That’s why Supreme Court confirmations have been contentious in recent decades; that’s how we got the court that we got. So it’s sort of come full circle now. And it’s like, we’re standing at the party, and it’s over, and the lights are on, and it’s sort of awkward. It’s like: What do you do now? Right?

JS: Yeah. 

Well, then my last sort of question that actually follows on to that. Which is that we watch the courts quite closely. And I want to know what you would say to people who might be listening who are actually really concerned about the direction and what lies ahead.

JR: It’s too late. That’s what I would say.

JS: [laughs]

JR: No, really. That’s what I would say. If you’re concerned where the court is, then I would say barring adding seats to the court, it’s too late. And so if you don’t like the direction that the court is in, then you should be in a position of trying to change the composition of the court. And if you’re interested in doing that in a way to have any impact and not just waiting for people to die, or the winds to shift of whoever is or isn’t in Congress, then that’s the step that you would want to take. If you like how things are, then you want to try and do whatever you can to cement the status quo. But you know, when you talk about the big decisions, I mean, that cake is sort of already baked. 

One other thing I would say too, though, is in our federal system, there are the state courts, too — these things that the independent state legislature proponents don’t really want to tangle with. And so what we have seen is some of the state courts kind of flexing more of their muscles — or maybe they were always flexing them, but now is the only time that we’re putting a spotlight on them on the stage. And so I think what we’ve seen is maybe some litigators, who perhaps in the past would have fought to get a case to the Supreme Court are now focusing maybe more on the state courts, whether it’s for abortion or any other issue, really. 

And so, as far as the Supreme Court, you have to look no further than the political process to see how that does or doesn’t move. And I’ll leave that to anyone listening, whatever they want to do with that information. But I think there’s sort of more play in the joints, from a litigation standpoint anyway, in the state courts. And so that’s where the ballgame has moved to, in some respects. Not completely, because the Supreme Court is still there, but that’s maybe one thing to check out that might not be on someone’s mind, who’s still an otherwise educated consumer of what’s going on. 

Just to add kind of one nerdy point to it, which is that if a state court is handing down a ruling based on its state constitution, then that’s not something that the Supreme Court could then reverse, because if you’re thinking — oh, what’s the point anyway, if they could just reverse it — that’s why you see some decisions it’s important on what grounds the state court is ruling. 

So that’s why I think we’ve seen some people focus their attention either instead, or additionally, towards the states, instead of putting any hope in the U.S. Supreme Court.

JS: That’s a really good point. And especially with post-Dobbs, I’ve been thinking about that, and I’ve written about that some, it’s that you have to look at the state constitutions. And I think it’s always good to remember in that context, that the U.S. Constitution is the floor, not the ceiling. So it sets the base level at which you have to protect your people, but a lot of these constitutions go far beyond what you see in the U.S. Constitution. So I think that’s a really, really nice, good point. [laughs]

JR: Maybe a hopeful point.

JS: Yeah, I like that. You gotta take it where you can, right?

JR: Exactly. 

JS: Jordan, thank you so much for joining us. This has been wonderful, and I really appreciate it.

JR: Thank you. It was fun.

JS: That was Jordan Rubin, a legal analyst and opinion writer for MSNBC. 

[End credits music.]

JS: And that’s it for this episode of Dissent, a production of The Intercept. 

This episode was produced by Laura Flynn and Jose Olivares. Roger Hodge is editor-in-chief of The Intercept. And Rick Kwan mixed our show. 

If you’d like to support our work, go to theintercept.com/join — your donation, no matter what the amount, makes a real difference.

If you want to give us feedback, email us at podcasts@theintercept.com. Thanks so much.

Until next time, I’m Jordan Smith.

The post Dissent Episode One: Tipping the Balance appeared first on The Intercept.


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