Constitution Breakdown #6: Adam Liptak

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31:15So we've been talking a lot about basically about judicial review, about what the Supreme Court does. And this is a thing that is not in Article 3. Can we talk about the fact that this is the major purpose as we've seen it in the court and is not present in the Constitution at all? Right. Right. Well, I mean, without turning this into that class that baffles first-year law students. Which I just taught, by the way. Maybe you should tell the story of MontBernick against Madison. I mean, John Marshall was the genius. And he sort of announced that the court gets to say what the law is. Now, I think when he announced it, and I'm curious about your views, Elizabeth.

32:02You know more about this than I do. But when he announced it, I don't think he was announcing that it's the exclusive interpreter of what the law is. Members of the other branches have an independent obligation to assess their constitutional obligations. And only later did the court declare judicial supremacy, I think, in Cooper against Aaron. That's right. But this idea that this kind of third tag-along branch is actually going to take a leading role in telling people what the law is as opposed to just deciding disputes. I mean, this came up in Trump against Casa, which was the first version of the birthright citizenship case that didn't really involve birthright citizenship.

32:52It involved the question of what is the power of district courts to impose so-called nationwide or universal injunctions, which is to say, can a district court not only bind the people before it, but also everybody else similarly situated? And in the process of arguing that case, the lawyer for the Trump administration, Solicitor General John Sauer, is asked by several justices, like, we get it. A district court can't do that. And that is how they came out in the end. But if we were to say that not only are the people in front of us bound by our opinion, but everybody else is, that's true, isn't it?

33:38And he said, oh, yeah, that's true. Well, you know, it's funny. It happens to be a very convenient way for the court to also consolidate its own authority and power, of course. And, you know, this concept of judicial review, that not only do they interpret the Constitution, but they have the final say, which we could only ever disagree with through constitutional amendment, which rarely ever happens, of course. And that means that there are only a few theoretical limits to what the court can do. And that seems to be things like stare decisives, this idea, the reluctance to overturn prior precedent.

34:16But I have to say that, you know, it seems like there's a lot of instability happening right now in our sense of constitutional law. So, you know, for example, in my syllabus this semester, I actually have a section where I've told the students this might not be good law by the time we get to it. The section on appointment and removals. And part of this is because we know the court is comfortable overturning even longstanding precedent. You know, Dobbs, a case that overturned a woman's right to an abortion in 2022 is maybe the chief example here. So how do you what do you make of the court's attitude to this idea of stare decisis?

34:54I don't know that the Roberts court is any worse than earlier courts in overturning earlier decisions. Just as a matter of counting the cases in which it's used the words, we overrule X, it's done that at a similar and slightly lower pace than earlier courts. Now, that doesn't take account of the magnitude of what it's overruling. It doesn't take account of, for instance, the Harvard and North Carolina affirmative action cases where they don't actually mouth those words, we're overruling. And it doesn't take account of cases that ought to be overruled. I mean, we certainly don't want Plessy and Korematsu and other parts of the court's shameful legacy to be in place.

35:44But in general, I take your point that this is a court that does not lack in self-confidence. And the so-called stare decisis factors, the criteria the court says it looks to in deciding whether to overrule cases are really quite malleable. And, you know, starting with, was the earlier decision egregiously wrong? Well, you know, that would seem to be in the eye of the beholder. You mentioned this idea of them being self-confident in their rulings. But sometimes when I – my interpretation as just a layperson watching is that they have actually a lack of confidence that they feel if they ever made a ruling that contradicted the executive branch, they kind of know they would lose and so therefore they're trying not to force a constitutional crisis.

36:41Am I off base there? Does that feel true at all? I think that is true, but it has not been true over time. I mean, I don't think they were very much afraid of Joe Biden. Yeah. Right. But we're now in an era where what was once inconceivable that a president would simply disobey a ruling of the Supreme Court is now at least plausible. I don't think likely, but at least plausible. Yeah. Yeah. And do you think they make decisions with that fear in their mind or thought in their mind? These are nine smart people and they live in the real world. I think another aspect of the court that, you know, maybe you can turn to things that aren't in Article 3 exactly, but really important to the way the court works, the Supreme Court works today.

37:31Maybe we could talk about standing, right? Let me go back for a moment and explain what I mean here. So standing is a legal doctrine that the Supreme Court has interpreted from the idea in Article 3 that the federal courts are supposed to only resolve cases and controversies. In other words, they can't just provide advice to folks. They have to have a real life case before them. So one aspect of this idea of a case or controversy is that people with real injuries and real injuries only can bring cases in federal court. So if you don't have a real injury, you don't really have a case, and your case ought to be dismissed.

38:10So it seems to me that this is a big hurdle sometimes in the Roberts court, but it's a very unpredictable hurdle, depending sometimes on what the issue is. I wonder what your thoughts are on standing in the Roberts court. As with sorry decisis, this is malleable and opportunistic. I mean, John Roberts used to be a standing hawk and really didn't think marginal cases in which people didn't have much of a direct stake ought to be brought before the court. Just yesterday, as we were recording, he wrote an opinion in which a political candidate was found to have standing to challenge late mailed ballots.

39:01And some people thought that was inconsistent with some of his earlier rulings. I might step back and say that our system is different from some other countries. This insistence, at least in theory, that we have an actual case or controversy, which is language from the Constitution, is not universal. There are constitutional courts around the world which will answer questions in the abstract or which will, you know, a legislature will say we want to enact this law. Is it constitutional? And I don't know that that's a bad system. this insistence that we round up a plaintiff somewhere, that we're only going to decide if affirmative action is constitutional, if we can round up a 19-year-old who's willing to be in the face of...

39:45It's not obvious that that's the right way to run a judicial system, but it is our way. Yeah, I don't know if people really quite grasp that. Basically, that is required, A, and B, how odd that really is when you think about it. Yeah, and maybe we could just put some, flesh this out just a little bit. I think, Adam, you know, what you might be referring to is, you know, there have been a couple of cases before the Roberts court. For example, there was the case of the website designer. She said she was going to refuse to design a website for any same-sex couple who was going to ask her to design a website for their marriage.

40:20There's a lawsuit involving her refusal. But the problem is she never created a website and no same sex couple had ever actually asked her to create a website for their marriage. So it wasn't even clear what kind of controversy or dispute she had. So it seemed to a lot of folks before the Supreme Court heard that case that she doesn't have standing. How could she possibly have standing? But the Supreme Court didn't seem remotely bothered by this at all and went on to resolve the case in her favor. On the other hand, if you have an issue like we saw pretty recently during this administration, the shadow docket ruling about the roving immigration raids in Los Angeles, the court allowed the Trump administration to go forward with that.

41:06And Justice Kavanaugh wrote a long concurring opinion explaining why he thought the district court's pause on those raids ought to be lifted. And one of the things he pointed out was, look, I don't even think that these folks have standing to ask for a forward-looking stay or an injunction on immigration officials. Again, you know, we could say that maybe these are principled uses of this doctrine, but they also seem to coincide with an agreement or deference to executive power. Yeah, I mean, I could make the counter arguments in both cases, but I take your general point that this is not a doctrine that actually does a lot of work in keeping cases out of court that the court actually wants to decide.

41:53It can be a way to get rid of cases it doesn't want to decide. Yeah. Right, right. I mean, it seemed to be no hurdle to the court deciding whether or not President Biden could cancel billions of dollars of student debt. Right. Based on some servicing companies' attenuated interest and hundreds of millions of dollars turned on whether Mochila was it or did not have standing. So a little bit of background. This is the student loan challenge to the cancellation of loans. And basically the idea is, well, you know, the states argue that who brought this case, you can't do that because you're going to reduce funds in the Treasury.

42:35That's the classic, you can't bring this kind of lawsuit. You're just yelling at the TV kind of lawsuit, right? But Missouri said, well, we created this independent nonprofit called Mohila, and they service the loans. And if the loans are canceled, then this independent nonprofit suffers an economic harm. I mean, it wasn't even a party in the case. But nevertheless, as Adam points out, I think the Supreme Court really wanted to decide this case. So conveniently, it was thought that there was standing and sufficient standing for the case to be decided. That's amazing. I want to ask you a little bit about covering the court and interpreting it for people for your paper.

43:15These decisions, they're long. They are complicated to read. And you have to digest them and report them very, very quickly. Could you talk about the challenge of that? You know, Anthony Lewis, the great Supreme Court reporter, used to tell me, you spend many months getting ready for a few days in June.

43:42So if you're doing your job right, you will have read the briefs at the early stage of when the parties are asking the court to hear or not hear the case. You'll write a story about the court's decision to hear the case. You'll maybe do a setup piece on the parties to the case. You'll go to the argument. You'll read the briefs in connection with the merits briefing, write a story about the argument. And you will have steeped yourself in the mechanics of it. And I should also say that if you do it long enough, the court tends to decide the same set of issues over and over again. So you have a pretty good sense of how they think about things.

44:23And then as the decisions approach, you write alternative drafts of how it might come out. or more strictly speaking, you write what journalists call B-Matter, which is just background material that's going to be the same regardless of what they do. And in the earliest versions of the stories, basically just a who won and who lost. And in a really big story, we will publish, you know, within a matter of minutes, assuming that I can figure out at least that much. Of who won and who lost. A very quick story, and then almost immediately go back in with a vote count and a couple of quotes, and only then sit down.

45:10And it might take me an hour to really read the decision with care and get a sense of its architecture and the dialogue between the dissent and majority and concurrences, if there are any. And a sense of where this fits in doctrinally and what the consequences might be. And then by, you know, the early middle afternoon, try to give birth to the first actually valuable story. The first one that's not like wire service. And then by the end of the day, you hope you've written something that will stand the test of time and will be in the archives and will be of some use to somebody. But unfortunately, there's a real inverse relationship between quality and readership.

45:58So the first story gets an enormous readership. And the last story, which you take some pride in, rather less so. Are there ever back-channel messages you get, you know, that somehow come from the court that they disagreed with what you said or thought you did a great summary or anything like that? It would probably be more of the first than the second.

46:26has the has the nature i mean maybe i'm just more aware of them now but the the dissents seem to take on a more of a harsher tone i i guess is the way i would say it or have a lot going on in them am i just more aware or has that always been the case i think there's a quality to the dissents these days from the three justice democratic appointee liberal minority that is the product of hopelessness and just being on a never-ending losing streak that is different from when you know there were four of them and they could pick up kennedy's vote from time to time it's just got a different feel to it and the stakes may be thought to be higher in some ways so i i agree that it's got a different tone that said you know justice Mr.

47:15Scalia, in dissent, could write some pretty sharp terms. That's right. So do you have a sense that, you know, there's a lot of discussion about what happens after Trump and further discussion about with a Democratic president change the composition of the court? Do you think it's as simple as that, that, you know, changing the majority could sort of undo some of what's been done during the Roberts era? Or are we headed in a totally different direction? I think a change in personnel would, in short order, move the court in a different direction jurisprudentially. There was a moment in time, you'll remember, when it looked like President Obama would be able to replace Justice Scalia with Merrick Garland.

48:04He didn't get a hearing in the end. But political scientists predicted that if that happened, cases like Citizens United and Heller on the Second Amendment could well be reversed. It's entirely conceivable. I mean, stare decisis is a game two sides can play. But at great risk of really undermining the court's legitimacy, don't you think? I guess, although, you know, we talk about the court's legitimacy, and the court has been quite active, and its approval ratings have fallen some. But in truth, they're still higher than most of the rest of the government. The military is higher, but Congress is in the toilet.

48:51It's higher than journalists. It's probably higher than the academy. Right, for sure. And I mean, at the end of the day, I think all legitimacy means is will people do what the court says? And so far, there's no indication that people won't. Do you think that the idea of legitimacy, which I only hear in reference to the judicial branch or the idea of reason and logic being the ruling principle, is that a consequence of the vagueness of Article 3? That's built on top of kind of – we're building our foundation during the creation of the thing in a way. So it has to have some other sort of foundation to stand on.

49:36I think that's a good point. And a little too abstract for the likes of my simple-mindedness. Fair enough. Well, you know, one thing to think about with legitimacy, though, is I think there's a tension here with the courts have to be legitimate. That's part of their independence. At the same time, I think a lot of individual, some individual federal judges feel under threat or under attack. And I want to go back for a moment to Chief Justice Roberts, who said, I believe it is 2024 end of the year report. He openly acknowledged that, look, you can't you can't threaten the judiciary. That is unacceptable.

50:17Right. And then this just past year's report, he had a kind of rosy colored vision of the country's 250th birthday. And I just it's such a swing back and forth. Where do you see your sense of how the judiciary is responding sometimes to literal threats, sometimes to social media threats of impeachment, things of that nature? I don't know what to say other than that these threats are real. the judiciary is quite concerned about them the supreme court has excellent security lower court judges much less so they're deeply concerned about it i think the chief justice should speak out about it often and robustly um i don't think it's affecting their work but i don't know it's different in kind from anything i've lived through before you know political violence is, I guess it's always been with us, but it seems to be woven into the texture of ordinary American life these days in a way that's really disturbing.

51:24More with the New York Times' Adam Liptak after the break.

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53:39Whether it's baby formula when you're down to the last scoop, pet food before the bowl runs empty, batteries for a dead remote, or a last-minute gift, it is handled. Try Walmart Express Delivery today and get free delivery with promo code EXPRESS. Promotion valid for first Express Delivery order. $50 minimum. Subject to availability. Restrictions apply. If there's something that, you know, you would change, what do you think is the right way to make things better? I know you're a reporter and you're just trying to tell the story of what happened. But as you see it close up, what do you think would be like an effective way to make the Supreme Court more effective or the decisions make more sense?

54:25You know, reporters always want transparency. Yeah. I would love to know, for instance, the vote counts on these emergency applications we were talking about earlier or when the court decides not to hear a case, how many justices voted for that or not. They also have a tendency – it's not the world's hardest-working court. I mean, they issue maybe 60 decisions on the merits a year. But they do tend to do everything all at the same time. So there are days when they agree to hear cases and issue opinions and hear arguments, and then they go away for two weeks. So if they were to space those things out a little bit, that would be nice.

55:07Do you think it would be a good idea if the Supreme Court arguments were televised live? I'm in favor of that. It's an academic question only. It's not going to happen. I don't think it would add a whole lot. You know, it's an open government proceeding. It ought to be open to the public in the realist sense imaginable. That said, the live audio, which is an artifact of the pandemic and would have been unimaginable 10 years ago, gets you 95 % of the way. Certainly, if you can recognize the justices' voices, you're really getting almost all the information that you need. I think some of the justices value their privacy, although their book tours would seem to cut in the other direction.

55:54But that's not a legitimate reason not to have cameras. Some of them say goofy things on the bench and they're afraid that that would turn up on late night television. That's an authentic concern, but not a legitimate one. Are there security concerns around this? I don't know. But anyway, I mean, this is a thought exercise only. they're not going to do it. So putting it constitutionally aside, one thought I'd had is, you know, would it be better for the system if the justices were just told, look, when you hear argument, you have to issue an opinion, you know, let's say a month later. And the reason I raise this is because, you know, as you say, Trump versus the United States, the presidential immunity opinions, maybe the most significant decision of the court so far.

56:41And they waited, They waited until the very, very end. And that timing made it impossible for anything really to go on in the case at all. And, you know, that was presumably deliberate or they couldn't come to an agreement on things. I'd love to hear your thoughts on that. So I think the idea of making them work fast as a general proposition is a bad idea. They don't do good work working fast. And I actually give them some credit, and not every court is like this, disposing of every merits case, almost without exception, within the October to June term. What they might have done in Trump against the United States is, you remember, Jack Smith went to the court twice, once in a procedure called CERT before judgment, seeking to leapfrog the D.C.

57:37Circuit. I think back in October. Very early. And they turned that down. And if they had taken the case then rather than later, they might have had some running room to issue a decision and maybe a more considered decision. April arguments almost always yield pretty poor decisions. There's just not enough time for them, and they've already backed up on everything else. So April arguments and June decisions don't tend to be the court's best work. Hmm. Interesting. Is there anything else sort of, you know, from your vantage point, the way the court works that is interesting or surprising to you as you've been covering this for so long?

58:20You know, I'm so close to it, I probably don't realize what should be interesting or surprising. I guess I should say that I kind of stepped back from Daily Beat reporting at the end of this last term. So I'm still writing about the court, but not on this kind of daily ruling basis. My colleagues Ann Maramow and Abby Van Sickle have taken over the hardest part of the job. And I'm more of an analytical observer. So I'm kind of decompressing from 17 years of Supreme Court coverage. Like, would people be surprised by how much clerks do versus justices and things like this? The justices each have four brainiac law clerks.

59:15Who work around the clock. Yeah. Well, maybe we could pause for a moment, Adam. Maybe we could just explain. What do you mean by a clerk? Maybe readers will think, oh, someone who writes down appointments for the justices? What do you mean by a clerk? So these clerkships are one year long. They are given to young people who are law school graduates and who have typically clerked for one, now sometimes two, lower court judges. They will have the most distinguished resumes imaginable and excellent grades and great skills, but maybe not yet great maturity. and they are given extraordinary responsibilities, including in evaluating the petition seeking review, which are sent out to the so-called cert pool where a single 26-year-old makes a preliminary judgment for the Supreme Court of the United States about whether to grant review or not.

1:00:16And, you know, these clerks make up a little law firm with the justice at its head. And as in a real law firm, the associates write the first draft of a brief or an opinion. And the justices direct it and, you know, are responsible for it. And most of them write through it fairly carefully. But the clerk has a substantial hand in what happens. Yeah. Not at all contemplated by Article 3. We'll search in vain for law clerk in the Constitution. Yes, it is a remarkable aspect of the judiciary that, you know, it's not what you're mentioning is, of course, the most important clerks at the top of the heap on the Supreme Court.

1:01:07But every federal judge has one or more clerks who serve in the same role. Well, you know, one thing we haven't talked about is the background of the justices, which is increasingly turning into a kind of inherited aristocracy. Say more about that, please. I mean, the justices themselves have sterling resumes. Eight of the nine went to Harvard or Yale Law School. And several of them not only clerked on the Supreme Court. I mean, the odds of that are sort of vanishingly small. There's not that many clerkships to go around. But two of them, three of them, three of them clerked for the very justice whom they succeeded.

1:01:49Right. I mean, that's curious. But Roberts for Rehnquist and Jackson for Breyer and Kavanaugh for Kennedy. I mean, what are the odds of that? And that ties back a little bit to the point I was making earlier about timing of retirements. I don't have evidence for this, but I think it may be possible that as a justice is deciding whether to retire or not, that justice might have consultations with the White House and say, you know, I might like to retire and it'd sure be nice if you would appoint my favorite clerk to succeed me. And it's remarkable because, of course, in other aspects of the Constitution, we have, for instance, prohibitions on granting titles of nobility because that very value is something the founders said, we don't want that system.

1:02:42And yet it's crept into the Supreme Court, as you mentioned. It is remarkable to me, too, in the sense that like even in the sort of the text itself, the idea of lifetime appointments in a constitution that is full of things that are basically guards against any type of thing that smacks as monarchy. Like in terms of even the age of the president can be it's kind of a backdoor way of, you know, like George Washington not giving it to a six year old kid in the presidency. See, and this is an odd thing that we've set up this side channel where these titles of nobility are a lifetime and can be functionally passed on is an oddity.

1:03:23Right. Well, one last thing maybe we should address is, you know, this Article 3 is very, very short. And strangely enough, in this very short part of the Constitution, there's an entire section devoted to treason, which seems to totally be a non sequitur. It has nothing to do with the preceding part of Article 3. Maybe we can talk about that for a moment, if you have thoughts on it. You wonder if the drafters were going, well, we've got to talk about treason somewhere. Where shall we stick it? That's right. I mean, I suppose it's a crime. It will be adjudicated in court. It's a federal crime.

1:03:58But yes, I mean, Article 3 has three sections. Section 3 is about treason. Yeah. Right. And also very important to the founders to make sure that whatever the punishment was, it was only for the lifetime of the person convicted of treason. There shall not be corruption of the blood, which was an English common law term referring to we can't punish people for generations for having a treasonous member of their family. Just a very strange place to put this strict definition of treason in the Constitution. Well, one thing we haven't talked about is the article does talk about the court's original jurisdiction.

1:04:35um so the court is basically and these days almost entirely an appeals court and here's cases that have been decided below and it just deals with whether the legal issues were correctly decided let me digress on that a bit the court is also and this is a fairly modern development decided that it will only decide discrete questions of law it doesn't take an appeal of a case, it takes appeals of discrete questions presented. But in any event, whatever it's deciding is generally legal. But the Constitution also contemplates that in at least some cases, it will act as a trial court and adjudicate facts and hear witnesses.

1:05:18And these days, that almost always involves disputes between states, often about boundaries or water rights or so on. And the court doesn't, in fact, sit and hear witnesses and bang the gavel and hear objections and so on, but appoints a special master who does some version of that. But I think the framers probably contemplated a court that would act as a trial court some substantial amount of the time. Yeah, that's wild to think about that. That that would be carried to this day, that you'd see these high profile cases that would It would be like witnesses would be called and justices would do something.

1:06:00And part of it is just, I guess, you know, as so many other things, it's just a matter of historical practice. The idea that the court would take on a lot of original jurisdiction cases or trial type cases kind of as ebbed away through the court just not wanting to do that over many generations. Right. Adam Liptak, it's been such fun talking with you. I really appreciate the time and your insight and I love reading your work. So thank you so much for being here. I got a real kick out of talking with you guys. Thank you. Yeah, that was a lot of fun. Thank you so much. Join us next month. We're moving on to Article 4, all about the relationship between the states and the relationship between states and the federal government.

1:06:43The 99 % Invisible Breakdown of the Constitution was produced by Isabel Angel, edited by committee. Music by Swan Real. Mixed by Martine Gonzalez. Kathy Tu is our executive producer. Kurt Kolstad is the digital director. Delaney Hall is our senior editor. The rest of the team includes Chris Berube, Jason DeLeon, Emmett Fitzgerald, Christopher Johnson, Vivian Leigh, Bosh Madan, Joe Rosenberg, Kelly Prime, Jacob Medina-Gleason, Talon and Rain Stradley, and me, Roman Mars. The 99 % Invisible logo was created by Stephan Lawrence. The art for this series was created by Aaron Nestor. We are a part of the SiriusXM podcast family, now headquartered six blocks north in the Pandora Building.

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