Leah Litman on Trump’s Supreme Court

0:06Welcome to the Political Scene from The New Yorker, a weekly discussion about the big questions in American politics. I'm Susan Glasser, and I'm joined by my colleagues Jane Mayer and Evan Osnos. Hey, Jane. Hey, Susan. Hey, Evan. Great to see you guys. This week, we're back with our summer interview series. Last week, I sat down to discuss the impact of Trump 2.0 on democracy and the world through the eyes of a friend of mine, Fiona Hill. This week, we'll look at another major theme of the first six months of Donald Trump's second term in office, his relationship, if you can call it that, to the rule of law.

0:47Jane, you've long had an interest in the Supreme Court and its radicalization. You're writing a book on it right now, which, by the way, I cannot wait for. In the meantime, you're sitting down this week with someone who I think can really add a lot to the conversation, the co-host of the Strict Scrutiny podcast, Leah Littman. What were you thinking about going into this conversation? I think there has been a growing realization that the Supreme Court justices are not the apolitical oracles of Delphi that they have often been treated as, but rather they are political actors at the top of a branch of the U.S.

1:26government that has enormous power over every American's life, especially these days with the Trump administration when it's pushing the barriers of the rule of law in our society. And so the reason I wanted Leah was that nobody I know has done a better job of demystifying and deciphering what's really going on behind those marble walls on the Supreme Court. She was herself a Supreme Court clerk, so she was up there behind the scenes. She's now a law professor at the University of Michigan, and she's the co-host of Strict Scrutiny, which is a fabulous podcast. It's highly entertaining and also really smart.

2:09She is also the author of a new book called Lawless that tries to make the court accessible to people who are not lawyers and just want to understand what's going on. So I really wanted her to translate and explain what is happening up there, particularly in terms of the relationship between the court and Donald Trump. I'm interested, Jane, too, in drilling down on some of the personalities, not in a superficial way. I mean, this is what's so unique about the court is it is this kind of priestly class of a very small and immensely powerful group of human beings. And they come into it with their own preoccupations, their own idiosyncratic readings of the law, and let's face it, also their own interior politics on the court.

2:56And I think understanding, for instance, you know, what role is Ketanji Brown Jackson playing right now? How does John Roberts see himself and his role in history? All of that, I think, is just massively important for where this country is going. I think Evan's point about the Roberts court is so important because I've been almost reevaluating in the last few months whether this frame that we have of, you know, will the court save us from Donald Trump, whether in the end we may end up asking a very different question, which is how much did the John Roberts court end up enabling and creating the radical reinventing of government that Donald Trump is doing?

3:37And, you know, so far, for me at least, the court has proceeded in a much more enabling way than I had anticipated, perhaps. John Roberts seems like the very model of a sort of conservative in an old-fashioned sense justice, and yet he has presided over some pretty radical reinterpretations of how our government works. So I just can't wait to hear you and Leah engage in a little bit of a back and forth, because I don't feel like I really have a handle on where this is all headed. Well, I'm actually really excited to get into all of that with Leah. So let's take a listen. Here's my conversation with Leah Littman.

4:24Leah, welcome to the show. So great to have you here. It's so great to be here. Thanks for having me. So you're famous for analyzing the Supreme Court in accessible ways that you don't have to be a lawyer to understand. Your new book, Lawless, refers to the Dobbs decision as a Ken-surrection, a la takeover of Ken dolls in the movie Barbie. And you've described the conservatives on the court as being like a clique in the movie Mean Girls. Is the Supreme Court too mystified? And what sparked your interest in making it less Olympian? So I think a few things definitely made me want to try to make the court accessible.

5:05One is during my time clerking at the Supreme Court, the court heard this big constitutional challenge to the Affordable Care Act, the case NFIB versus Sebelius, where they narrowly avoided by just one vote, striking down the entirety of this federal law. And the external perspective on that decision was, well, they avoided it, so all's well at the Supreme Court. There's this institutionalist moderate center that is always going to hold, and we don't have anything to worry about. And that was not my perspective, at least seeing things on the inside. I felt like we were on the precipice of just tumbling over the cliff entirely.

5:42So I spent the post-clerkship period thinking about what I might be able to do to try to convey information about the court. I ended up finding my way into academia. That eventually led to the launch of the podcast. And during that period, it felt like people did not appreciate how significant Justice Brett Kavanaugh's appointment to the Supreme Court was. Even when the court heard oral argument in doubt, so many people were saying they're not actually going to do it. They're not going to overrule Roe. And I felt like I desperately wanted people to have a lot of information and more information than they had about the Supreme Court, how the court came to be, and what the justices are drawing on when they make their decisions.

6:26And that is what I have been trying to do now for, I guess, a better part of six plus years. You clerked for Justice Anthony Kennedy, right? Yes. Did the court look different to you from the inside than you had heard about it from law school? It did feel and look different to me. In law school at the time, we really focused just on the decisions themselves. From my internal perspective, it felt like the court was obviously being shaped by some of the coverage, some of the commentary, and some of the political context. And so I really wanted to fuse those more external aspects of judicial decision making with the work of the court because that is not really how I learned about constitutional law and the Supreme Court.

7:15You know, as a reporter, I can say there's almost like an omerta on describing the justices as real people. Do you think they do it on purpose? So I think the advent of judicial robes was actually a conscious effort to add some mystique to the justices and make them appear like they were becoming something totally different and impartial and cloaked in mystery. And people just couldn't understand what they were doing when they ascended to the bench. Justice Neil Gorsuch has actually invoked this idea of you put on the judicial robe and you become this neutral arbiter. And I feel like, okay, maybe you're trying, but it doesn't mean you can forget everything you believe about the world when you do that.

7:59I do think it is tough to, you know, in print media, longer media, to convey all of the sources and context that the justices might be drawing from when you're just trying to summarize a case. I mean, when you're talking about an environmental law decision, how are you supposed to also convey Neil Gorsuch's biography and his mother's role in Reagan's EPA? How are you also supposed to talk about John Roberts' time in the Reagan administration? And so part of the book was to provide all that other info that I really wanted people to have. What you just mentioned is really interesting to me is that even inside the Supreme Court, they feel public pressure to some extent.

8:44Is there public pressure that penetrates those marble walls or not? I think all of the evidence suggests there is. Now, I do think that public pressure has become less of a concern recently, but I do think there is considerable evidence that public pressure, political pressure affects the work of the court. Going back to Franklin Delano Roosevelt's plan to expand the Supreme Court and basically bullying the court into modifying its legal rules and jurisprudence to allow him to enact New Deal programs. I think Joan Biskupic has written about, you know, the Affordable Care Act decision and the justices' deliberations and how that might have been influenced by some public perspective.

9:24That was also my intuition when I was at the court. I think we've seen the court get a little bit nervous in the aftermath of overruling Roe and try to hold their fire at least for one term. And I think the fact that Justice Samuel Alito is constantly whining to the Wall Street Journal about criticism of him and how people aren't defending him, it absolutely makes its way into the Supreme Court. In some ways, I wish it made its way more into the court and then it mattered more to the court right now because I think the justices or at least the Republican appointees care less about it in a world where there are polarized segmented media and public approval.

10:02And that just allows them to focus on the conservative right wing legal movement and right wing media and care about those groups approval rather than a broader sector of the country. I mean, it's important because it then suggests that it's worthwhile for the public to make its voice heard, doesn't it? Do you think it's possible that they also really care what Trump thinks of them and might even be afraid of him to some extent? I do. I think there are a few reasons why they would care about what a president and this particular president might think about them. One is, you know, as the leader of the free world, the president has a lot of power as far as shaping public opinion and has the ability to sign or veto legislation that might constrain the Supreme Court.

10:48So purely in that respect, they will probably care about what any president thinks. Similarly, concerns about whether they can actually enforce their decisions. That, too, is going to lead them to care about what a president thinks, because if they diverge too far from where a president is, there are concerns about whether or to what extent the executive branch would comply with the decision or help them enforce a decision that engenders resistance elsewhere. I think that, too, is evident from history. Dating back to Marbury v. Madison, John Marshall was concerned about whether Thomas Jefferson and James Madison, you know, would actually comply with any decision requiring them to issue the judicial commissions to the judges that had been appointed by the Adams administration.

11:33And I think there are many reasons why this court might be especially interested in what Donald Trump thinks. That's in part because he is willing to put the justices on blast and I think really endanger their lives and safety, you know, when they rule against him. I also think he is more open to autocratic exercises of power and defiance and noncompliance with judicial decisions. He's also the leader of the Republican Party in this weird cultish fashion and so has the potential to drive public opinion really significantly, at least among Republicans. So I think for all of those reasons, they are going to be interested in what he thinks.

12:12And I think some part of them probably is afraid as well. Well, I mean, we've certainly seen that the Republicans in Congress are afraid of him and compliant with him. We occasionally have a senator like Murkowski who speaks out and says everyone's scared. So you kind of wonder if that fear has also penetrated the Supreme Court. I wondered if a seasoned court watcher like you can give us a few hints on what to look for in terms of being able to read the bench. Recently, we've been seeing some of the justices reading their own dissents or opinions. Are there signs to look for to get a sense of what the dynamics are behind the scenes?

12:54Yes. So I think if you are curious about where the court might be interested in going, I'd suggest looking to a few different sources. One, and this is a little bit hard, but trying to scope out a little bit and asking what was the law five years ago? What was the law 10 years ago? Because that allows you to see the direction in which they are changing it, and they're likely to continue to do so. So I think that longer term, broader perspective is really helpful. Second is, if you want to know what this court is interested in, I mean, look at the programming in right-wing conservative legal organizations.

13:29You've written so much about this, you know, in Dark Money, obviously. But look at what sort of programs the Federalist Society and Heritage Foundation are putting on. Look at the different amicus briefs that are being filed at the Supreme Court on behalf of these dark money organizations. And then Justice Thomas's separate writings, they are usually a source of where the court might be headed in the future. And again, the direction in which the justices are going. I think all of those sources, other than the majority opinion itself, can give you some sense about what is going on. And then if you want to know what the Democratic appointees are thinking, absolutely look to see whether they are, one, reading their dissents from the bench.

14:10Second, whether they are writing multiple dissents. Third, whether they include a respectfully when they dissent. And then fourth is, and this is tough, is just parsing the language because it's sometimes hard to see the tonal shifts or the phrases they're using that might be different than what has come before. So I remember, for example, back in Trump versus Anderson, the case about whether states could disqualify Donald Trump from appearing on the ballot because of his role in January 6th. And if you looked at the Democratic appointees dissent, they pretty pointedly said the court's decision was to insulate both this court and the petitioner, Donald Trump, from further consequences.

14:54And I think what they were saying is, look, these guys, they're kind of on Team Trump and they are going to help him out. And so if you can pick up those very small signs, and it's tough and frustrating to try to find those breadcrumbs, but I think those two can provide some clues. It's kind of like Kremlinology, really. Can I just go back to the word respectfully? When they have the word respectfully, does it mean they are being respectful? Or when it's missing, is that a telltale sign that I have no respect for your position? And when it's missing, they are trying to send a big red flare up.

15:37Like, this is a big deal. I disagree so vehemently. I am not abiding by the normal rules of judicial collegiality. And I think Justice Sotomayor, Kagan, and Jackson have all come up with different ways of saying, rather than I respectfully dissent. I mean, Justice Jackson has said, you know, with deep disillusionment, I dissent. Justice Sotomayor, you know, because I will not be complicit in so grave an assault on our rule of law, I dissent. So, yeah, those are also telltale signs. Amazing. Well, polls show that respect that the public has for the court has plummeted. When do you think the turning point was for this?

16:20You mentioned just a minute ago Dobbs. I was wondering, do you think it might have been when Mitch McConnell blocked Obama's choice of Merrick Garland? Did that start to undercut the court's aura of legitimacy? See, I think it is a it's no one single event. I think it is a million little cuts that the justices and the Republican Party have been making for decades that have undercut the court's standing in the public eye. I mean, would be remiss to not discuss Bush versus Gore. That was obviously, you know, a very significant inflection point for the court that probably shaped people's understandings and views of the institution.

17:01Similarly, you know, I absolutely think that Mitch McConnell's blockade of Merrick Garland was exposing of the court in the sense that the Republican Party basically viewed it as a political institution they desperately needed to control to advance their partisan agenda. add to that Dobbs and other deeply unpopular decisions. And I think all of these things in combination have absolutely had an effect on the Supreme Court. You know, so too has the rise of just like the partisan divisions among the justices and the extent to which you can now just easily predict what the justices are going to do in these big ticket cases based on the party that appointed them.

17:43All right, we have to take a quick break. But when we come back, I want to talk about this latest Supreme Court term.

17:59Stay tuned to The Political Scene as we continue our summer interview series. Next week, Evan is joined by Katie Drummond, the global editorial director of Wired, to discuss the impact of Elon Musk and Doge and Trump's relationship with tycoons of tech. Also, don't forget to check out more updates from our colleagues, David Remnick and Tyler Foggett, throughout the week, right here on the Political Scene podcast. Hey, listeners. This is Liz Mainz-Amanzati, the New Yorker's Puzzles and Games editor. If you're someone who likes making lists and organizing your bookshelf, we think you'll love Catalogs, our new daily game that challenges you to put things in order based on a hidden rule.

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19:19Leah, before we get into specific decisions in this latest term, I just want to ask you further about partisanship on the court, what we're just talking about. Clarence Thomas has railed about how wrong it is for people to say that the justices are just politicians in robes. Is that believable anymore after this last term? What was the big takeaway from this past term? So when I hear that remark, what I say is, look, they're not like every other politician in electoral politics. But that doesn't mean they're not political. It just means they are engaged in a different type of politics, and they're a different type of politician than the president or we elect in Congress.

20:04And I do think this last term really is additional evidence that his statement is wildly over-inclusive and overly simplified. If you look at particularly the cases involving the Trump administration on the shadow docket, the extent of the partisan breakdown is just super apparent for everyone to see. And you add to that the cases on LGBTQ equality and other matters. And it's like, well, of course, it's at least somewhat political. We can debate about what exactly that means or how the justices are political, how politics influences the court. but there's just no denying that it does. You've said that this last term, Republicans and the Republican Party were the big winners.

20:56Is that how you see it? Oh, yeah. I mean, think about what the modern coalition of the Republican Party is. It's a bunch of super rich individuals, corporate interests. It's a bunch of reactionary right-wingers who are very open to Christian nationalism and a little autocracy on the side to bring all of that together. Those were the big winners this last Supreme Court term. The justices made it easier for corporate interests to challenge EPA regulations, to pick what courts they file challenges to FDA decisions in. they expanded the right-wing religious, you know, group's ability to control what is taught in public education.

21:42And then there are all the decisions allowing Donald Trump to engage in what I think is wildly lawless behavior while his policies are being challenged in the lower courts. And I think those are three key elements of the Republican Party and all elements that the court really gave a boost to. Senator Sheldon Whitehouse, who was a member of the Senate Judiciary Committee, has long argued that today's Supreme Court's basically corrupt in the sense that the justices were chosen by politicians who were beholden to all kinds of private and special interests like the fossil fuel industry. I've talked about Harlan Crow, for instance, also the billionaire known for giving Clarence Thomas all sorts of lavish gifts.

22:25Do you think that dark money from political donors does influence this court? Yes, absolutely. And honestly, I think the Republican Party is pretty open about this. If you look at where the money is coming from for the groups that are putting on these different junkets for the justices or filing amicus briefs before the court or are offering public commentary about the court and how principled they are, A lot of it is coming from dark money. And all of those things influence the justices, even if they might not have, you know, a one-to-one causal story. There are still factors that are influencing what the justices are doing and the environment in which they are able to do it.

23:12And then you had the pretty open statements from people like Mitch McConnell after the Supreme Court overruled the Chevron Doctrine, which had allowed courts to defer to administrative agencies' reasonable interpretations of statutes, saying, look, this was a key goal of the Republican Party and the Republican legal movement is undercutting these administrative agencies. So they've been pretty open, I think, about their interests in helping out corporate interests. And you see that in the briefs, the commentary, and, you know, who has access to the justices as well. The one thing I think all of our listeners want to know is whether this court will provide a guardrail against abuses of power by Trump.

24:01Now, you've said it's really a mistake to think that it will or even that it should. Is it a mistake to think that the court can save us? So I think it is a mistake to think that the court can save us. That's not to say courts and law aren't going to be able to do some things to stem some of the damage that this administration does. But I think the Supreme Court in particular has proven that it is really fine with a lot of what the administration is doing and that they are basically willing to bend over backwards and ignore their own rules and procedures to allow the administration to do what it wants.

24:40I mean, Justice Sotomayor accused the court of basically allowing the administration to have them on speed dial. And Justice Jackson has talked about, you know, how in the court's zeal to give the administration the power to implement its policies after lower courts have declared them unlawful, that the court is just cannibalizing the work of lower courts and ignoring them and undercutting their own authority. So I think what we have seen thus far from the Supreme Court is not at all encouraging about the justices' willingness or inclination to check a lot of abuses of authority, unlawful exercises of authority that Donald Trump is engaged in.

25:22And I don't want to rule out the possibility that they will do so sometimes or that if there is some backbone that grows within the Republican Party and they are more willing to split with Donald Trump, that that might, you know, enable the justices to do so or lead the justices to do so. But again, given the landscape right now, I don't really see them riding in to save the day. I mean, there's a sort of a sense that's beginning with the immunity decision last year that they are helping the presidency become more and more powerful. It's morphing before our eyes into something that maybe we haven't seen before in this country.

26:01Is that right, do you think? I think so. I mean, I think what is astonishing is not only that conservative justices insist on treating Donald Trump and the Trump administration, particularly the second Trump administration, like any other normal presidency and affording them, you know, different legal presumptions of regular processes and regularity. and what they are doing is generally in compliance with the law, it's that they are also giving the president more and more power, even as he insists on violating so many of the legal constraints that would otherwise rein him in. I mean, I think the court's decision to allow Donald Trump to fire the heads of multi-member commissions, like the National Labor Relations Board and the MSPB in violation of federal law is one of the more telling indications that they really have no regret or buyer's remorse about their immunity decision because both of those decisions draw on this idea, the unitary executive theory, which, you know, as you know, is this kind of Republican Party pipe dream about expansive presidential powers that allow the president to be above the law.

27:14And by reaffirming it, again, a few months into the Trump administration, after the immunity decision, I just think, yes, this court is giving Donald Trump more and more power and allowing the Trump administration to evade any accountability in the lower federal courts. And that vision of presidential power obviously doesn't apply to Democratic administrations, but they just seem to have little to no qualm about sticking to it, notwithstanding everything Donald Trump is doing. A number of these decisions are, instead of being decisions that are made in full-blown hearings of the sort of traditional type you expect from the Supreme Court, they're made, as you say, on the shadow docket as kind of emergency orders.

28:00Can you explain why are we seeing so many of these? And are they really the temporary orders that they purport to be? Or are they really death sentences that are pretending to be temporary? Because one of the lawyers in the decision on the case having to do with firing tens of thousands of federal workers said, basically, you can't unscramble the egg. Once you have laid off all these people, cut their jobs, they've moved on, and you might say this is a temporary order and we'll get to the merits later. So why are these happening on the emergency docket and what is going on? Yes. So, you know, the emergency docket, as you say, are these requests that increasingly the Trump administration asked the Supreme Court to give emergency interim relief, basically blocking lower court decisions that rule against the administration and would otherwise prevent them from implementing policies that lower courts have concluded are illegal for any number of reasons.