Flags, Free Trips & Secret Recordings: The Cases, Trials & Tribulation of SCOTUS
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On September 28th, the Global Citizen Festival will gather thousands of people who took action to end extreme poverty. Join Post Malone, Doja Cat, Lisa, Jelly Roll, and Raul Alejandro as they take the stage with world leaders and activists to defeat poverty, defend the planet, and demand equity. Download the Global Citizen app today and earn your spot at the festival. Learn more at globalcitizen.org.com.

On September 28th, the Global Citizen Festival will gather thousands of people who took action to end extreme poverty. Join Post Malone, Doja Cat, Lisa, Jelly Roll, and Raul Alejandro as they take the stage with world leaders and activists to defeat poverty, defend the planet, and demand equity. Download the Global Citizen app today and earn your spot at the festival. Learn more at globalcitizen.org slash bots. It's on!

Hi, everyone from New York Magazine and the Vox Media Podcast Network. This is On with Kara Swisher and I'm Kara Swisher. This time of year is always big for the Supreme Court, but usually the news is focused on the cases the justices are deciding. This year, the justices themselves have been in the limelight for perceived ethics violations.

Personally, I don't think they're perceived. They're right there. Justice is accepting lavish gifts and trips worth hundreds of thousands of dollars and, in some cases, millions. Flying flags associated with January 6th sympathizers outside their homes and agreeing with the idea that America should return to a, quote, place of godliness on secret recordings. But the Supreme Court doesn't have an enforceable ethics code, just a self-determined code of conduct.

Democrats have tried to get the Supreme Court Ethics, Refusal, and Transparency Act passed, but last week Republicans shot it down in the Senate. So today I want to talk about ethical lapses and also the cases and what it means for the future of the highest court in our democracy. I'm joined today by a panel of experts with deep ties and knowledge of the judicial system. Nancy Gertner, a lecturer at Harvard Law and a former U.S. District Court judge for the District of Massachusetts.

Kedrick Payne, director of ethics at the Campaign Legal Center, a nonpartisan organization that advocates for voters' rights. And David Tatel, a former D.C. Circuit Court judge and the author of a new book titled Vision, a Memoir of Blindness and Justice.

Our question for this episode comes from Roberta Kaplan, one of the most accomplished lawyers in the country and one of its most famous these days. She's argued before the Supreme Court in the landmark United States v. Windsor case that established the right to gay marriage. Thanks, Robbie. And more recently, she led the legal team representing E. Jean Carroll in her successful lawsuits against Donald Trump.

This interview was recorded on Tuesday, June 18th. It publishes on Thursday morning, June 20th. Only a few hours after its release, the Supreme Court is likely to announce decisions on some cases, including ones we discuss in this episode. It is on.

Judge Gertner, Mr. Payne, Judge Tatel, thank you for joining me today. The Supreme Court heard 61 cases this term, and while we don't have time to go through all of them, I do want to hit the big ones. We'll start with the social media cases and with the Trump case. We'll have plenty of other significant cases to talk about in between, and we'll talk a little bit about Judge Tatel's new book, which talks a lot about cases.

So what is the most consequential case before the Supreme Court this term, in your opinion, and why? Let's start with you, Judge Gertner, then Kedrick, and then Judge Tatel. There's no question that the most consequential one for our current politics is the question of whether or not former President Trump is immune from these prosecutions and what the scope of that is. In the ordinary case...

A judge might say what judging would be about would be to say, I don't know what the meets and bounds of immunity are in every situation, but it doesn't apply to January 6th accusations. Instead, it appears that the Supreme Court is interested. Judge Gorsuch said he was writing an opinion for the ages, which sounds more legislative than judicial to me. You're writing an opinion about this case, right?

And this case suggests overturning an election, allegations with respect to false electors, etc., which is not every conceivable situation which a president would be immune. But certainly this situation, a president shouldn't be immune.

All right. So this is the immunity case. Kedrick? I agree completely. I think the immunity case will be the most consequential and it will be consequential even for people who don't understand the nuts and bolts and complicated legal issues. It's simply because it's going to be a divisive determination and people are questioning whether or not this court is a legitimate court or a court that is

bound by ethics rules and therefore that lack of confidence in their decision is going to cause even more problems no matter what they decide. Judge Tatel? I actually think there are many consequential cases and it's hard for me to rank them. Just to name three that I think are equally consequential, I think the South Carolina

Racial gerrymandering case is important because it makes it virtually impossible to bring such cases. I think last week's bump stock cases is deeply consequential for the country and the forthcoming case involving Chevron deference and administrative agencies.

is also consequential. And these are consequential not just for the impact they have on the people, but for the role of the Supreme Court in our society. Judge Tatel, you just came out with a wonderful book about your long career in law and the bench. It's called Vision, a Memoir of Blindness and Justice. You write extensively about the internet and the FCC net neutrality cases you presided over. It's interesting that you differentiate between what you would do as a policymaker versus what you had to do as a judge.

Talk about that a minute, because it's a great example of your thoughts on the judicial system overall. Yes. I say in my book, and I've always thought this is true, and I suspect Judge Gertner would say exactly the same thing. One of the hardest things to do as a judge, and I think the sign of a judge, is to be able to produce an opinion that produces a result that's different.

than you would have if you were a member of Congress. And that's because judges and members of Congress have different jobs. Judges are not policymakers. Judges apply the law to the facts. You mentioned the net neutrality cases. Just by the luck of the draw, I was on all three.

for the DC Circuit. And had I been a member of the FCC, I would have voted for, just as a matter of policy, for maximum open internet. That's what I believe is the best for our country. Yet, in the first two opinions, I wrote opinions striking down the FCC's efforts to ensure net neutrality because the FCC, in both cases, had not complied with the statute.

So you're judging the law, not what you would have thought. Yeah, yes. The difference between judging...

and being a policymaker. Okay. All right. Let's start with the social media cases, which I'd like to focus on. Texas and Florida have both passed laws that limit social media companies' ability to moderate content on their platforms. The Supreme Court is looking at their constitutionality in what could be one of the most important rulings of the case on the intersection of the Internet and the First Amendment. But a majority of the justices seem inclined to strike down the Texas and Florida laws just from the case itself when it's being argued that bars social media platforms from moderating their own content.

Talk about how the justice system, again, is not a legislator. The problem is the problem of the Internet from the beginning, which is to say, is the Internet like a public platform? Is it like the, you know, the public square? And it should be regulated or not regulated as a public square is. Is it a public utility platform?

Or is it essentially a private platform which enables them to moderate in the ways that they want? So it involves sort of fundamental characterizations of this extraordinary technology.

Yeah. So let's move to guns then. The court has two gun cases this term. It already rejected the Trump ban on bump stocks, and now it will decide whether or not the federal government can ban someone who has a domestic violence restraining order against them from owning guns. Judge Gertner, the Roberts court has already severely limited legislators' ability to pass gun control laws, but letting domestic abusers own guns might be a bridge too far, even for them. How come?

Well, I mean, aside from the fact that it is, in fact, categorically a bridge too far. I love the way you put that, a bridge too far even for them. There's a difference, arguably a difference between status issues and actual conduct. And so this is someone with a record of actual conduct. It seems to me that

should be disqualifying. Do I think that they will do that? I actually think that they will because they have to come up with at least a standard that allows for some limits to their otherwise extraordinarily broad jurisprudence about guns. In other words, they have to say, you put it really best about a bridge too far, they have to say that this doesn't make sense. The status issues that I was talking about, going up through the courts now are challenges to

Felon in possession of a firearm cases where the status of having been convicted of a felony before is disqualifying and courts are all over the map on that. Again, I would distinguish between status issues and conduct issues.

You are—this individual is under a restraining order, as I recall, and that's a different issue. Arguably, it's cabined and restricted so that if they are concerned about the Second Amendment—I might add that I'm not—

That they will have at least a roadmap for limiting this doctrine. So it applies to people with prior conduct like this. How does that square with the precedent conservatives created with the, I think it's the Bruin case in 2022, where they decided that gun control regulations have to be, quote, consistent with the nation's historical tradition of firearm regulations? I'm not sure that it does, but that's actually the core principle.

issue with originalism, which is that the original intent of the Constitution in the 1700s was decidedly anti-woman. Women were not part of the discussion. Women were not part of the issues. And at the time of the Constitution, women were property.

So they have to come to grips with enforcing the original intent of the Constitution on the one hand and modern concepts of women's rights. And I suspect they won't want to go that far. Right.

All right, Judge Tatel, in another gun case, a recent 6-3 decision by the conservative majority found that automatic rifles outfitted bump stocks don't qualify as machine guns, even though they can fire 400 to 800 rounds per minute. Justice Sotomayor read a blistering dissent from the bench where she basically called the conservative justices hypocrites. She said, quote, every member of the majority has previously emphasized that the best way to respect congressional intent is to adhere to the ordinary understanding of the terms Congress uses.

Can you explain what she was getting at, and do you agree? Yes. First of all, this case is different from the other case you were talking about because this is not a Second Amendment case. This is a straight question of interpreting the statute. And the question in the case was whether a semi-automatic weapon equipped with a bump stock was essentially a machine gun.

And the key language in the statute was single function of the trigger. Those were the words. A machine gun is something that fires multiple shots with, quote, a single function of the trigger. And the majority and the dissenters argued about that. Now, my own view about this case is...

is that it's a little different. I agree with the dissent, but my view is slightly different. To me, the reason why the case is easy, which is what Justice Sotomayor said, is that congressional purpose was so obvious. Congress intended to ban machine guns and machine gun-like weapons that fire hundreds and hundreds of shots per minute. This court adopted a cramped,

view of the language of the statute that produced a result directly contrary to congressional intent. To me, that's one of the things that it's this court's disrespect.

for Congress and its purpose that lies at the heart of many of the decisions. The other aspect of this case that hasn't received much public attention so far is the court's, this is another example of the court's hostility to administrative agencies. Here we have a federal agency that has been trying to

trying to adapt its regulations to changing technology. It was clear when Congress passed this bill that it wanted not just existing machine guns banned, but anything that was adapted or adjusted to function like one. And the agency here has been trying over the years to adjust its regulations to changing technology.

And this court paid no attention to that. So here you have the court substituting its judgment for that of Congress and for the expert administrative agencies. And that's characteristic of many of this court's decisions. All right. We're going to get to that in a second. But, Kedrick, let's talk about voting rights. You're a director of ethics at the Campaign Legal Center, a nonpartisan organization that advocates for voter rights. Let's

Let's talk about the gerrymandering case that Judge Tatel mentioned from South Carolina. Federal District Court had found that South Carolina violated the Constitution by making race the predominant factor when it moved 62% of black voters out of a congressional district. South Carolina appealed, and in a 6-3 decision, the conservatives on the court sent the case back to the lower courts. And even more importantly, it establishes a new precedent for proving an illegal racial gerrymander. Kendrick, can you explain what happened and what the long-term implications are?

I mean, the long-term implications is that it is clear that it is so much harder now to have the Voting Rights Act

that was established so many years ago fulfill its purpose, which is we're trying to make sure that people are able to represent, able to elect the representatives of their choice. And the regulations that are put in place to allow that to happen have been slowly chipped away by the Supreme Court. Chief Justice Roberts had a long history of striking down voter protections. The campaign legal center even published an analysis titled The Supreme Court's Role in Undermining Democracy.

Judge Tatel paced this decision within the context of that analysis so we understand the larger dynamics at play. This case does fit into two patterns about this court. The first is, you know, the extent to which it's chipped away at voting rights. It began with Shelby County where it invalidated the preclearance provisions of the Voting Rights Act. That was a terrible strike against voting.

against access to the ballot. And we know that extensive restrictions have resulted from it. Then in the Arizona case, Brnovich, the court made it even harder to bring a Section 2 case. That's not preclearance, but just a straight case. And now we have the South Carolina case where it made it virtually impossible now to bring a racial gerrymandering case.

So what's characteristic of all these cases is limiting the right to vote, but also in terms of the judging of the court. In all of these cases, you have the court disrespecting, and I use that word carefully, but it's true, disrespecting its own precedent. In the South Carolina case, the court held that the district court's decision was flawed because it had not given evidence

a presumption of good faith to the legislature and because the plaintiffs hadn't submitted an alternative plan. The problem with that is that years earlier, the court had ruled just the opposite, that there was no

of good faith. In fact, the court owed its deference to the district court's finding, not the legislative's finding, and that plaintiffs did not have to file an alternative plan. Justice Alito dissented there. He wrote the majority opinion here. The only difference, the only difference is the election and the appointment of three new justices to the court. Yeah, that's the only difference. Go ahead. I was going to ask you about abortion. But

Yeah. Just like the UBS. There's your segue. There's my segue. So the court heard two abortion-related cases in this term, the 9-0 ruling. They upheld the FDA's approval of mifeprestone, which is just one of two pills commonly used for medical abortions. Now the court will decide if a federal law that compels hospitals to provide abortions to patients who need them due to a medical emergency should override state laws that ban abortion.

Judge Gertner, talk through this case. Does it have any larger implications for abortion rights or is it a narrow case that doesn't really affect abortion in any other context? You know, again, with any other Supreme Court, I would look at a more narrow interpretation because, in fact, judicial decision-making is incremental and not linear.

like legislatures, which can totally change things. Do I think that the court could go so far as to say that the federal law is not supreme and that states could, I mean, sort of do essentially what they said in Dobbs, that the issue of abortion is an issue for the states? Do I believe they could do that? Yes, I believe that they could do that.

I want to follow along with the themes that Judge Tatel described, which is, so it's not just disrespecting the Congress. It's not just disrespecting administrative agencies. This would be a case in which they would be disrespecting federalism, disrespecting an overarching, arguably a statute that had federal supremacy attached to it that would be regulating medical care across the country. That would be a case

An entirely different level of disrespect. Do I think that they could do that? The court that did Dobbs could do that, yes. Do I think they will? Who knows? There is an interesting and emerging—I don't know whether Judge Tatel would agree with this, but there's an interesting and emerging relationship between Justice Kagan and Justice Barrett, and arguably trying to craft—

more moderate route and different tests than the kinds of tests that Alito, Thomas, Gorsuch, and Kavanaugh are implementing. So Justice Barrett may well be the key, and Justice Barrett's views on abortion are well known, but her views on federalism may be different. So who knows is the issue. Right.

But I just want to sort of one larger issue, which is I don't think that the public fully understands what happens when a Supreme Court is as disruptive as the Supreme Court is.

And it's exactly this conversation that reflects that. Right, absolutely. And I'm going to get to the ethics and stuff in a second. But the power of the federal agencies is what you're talking about, Judge Tatel. You mentioned the Chevron case, and the court will decide whether or not to overturn a precedent set in Chevron. A 1984 case that says courts have to defer to federal agencies when they make reasonable interpretations of ambiguously written laws.

This is one of the most cited precedents, but it's fallen out of favor with the Roberts Court. Judge Hill, you've dealt with questions around the power of federal agencies. Give us examples how the ruling that overturned Chevron could affect federal agencies. This is beyond disrespect. It's hollowing out power, correct? Yes.

So with the administrative agencies, I do have a whole chapter about this in my book. Yes, you do. Judicial restraint is what you, I think.

This court believes, at least the majority of its members, seems to believe that federal agencies are out of control, that they're taking actions that are illegal and that they're depriving the people of their right to be involved in their government. I couldn't disagree more. I've served on the D.C. Circuit for 30 years, and a majority of my cases involve reviewing federal agencies. I saw no evidence, none whatsoever.

And the Supreme Court hasn't cited any that federal agencies are out of control. When they make a mistake, as they did in net neutrality cases, we reverse them. But this court believes they need to rein in the agencies. And the major questions doctrine was the first step. Agencies don't get deference when they're dealing with an issue that has a major impact on the nation or the economy.

And now I suspect that they will take the next step and either eliminate Chevron deference completely or carve it back substantially. The result of this, the court says, well, we're doing this because we want to ensure that the people are involved in their government, right? We want the Congress to do this. The result of this is that Supreme Court is empowering itself now.

over both Congress and the administrative agencies. The fact is that all of these decisions will now be made by the unelected court, not by the Democratic elected Congress. Yeah, absolutely. The Trump immunity case isn't the only one that could impact the election. The court will also decide whether rioters involved in the Capitol attack on January 6th can be charged with federal obstruction. The case could eliminate half of the federal charges against Trump.

for plotting to subvert the 2020 election. There have been calls for both Justice Alito and Justice Thomas to recuse themselves from both cases. Clarence Thomas' wife, Ginny, attended the Stop the Steal rally on January 6th and was texting with Trump's chief of staff, Mark Meadows, and more, by the way. But Thomas has refused to recuse himself, just like he has with other January 6th cases in the past. Alito blamed his wife, Martha Ann, for flying the U.S. flag upside down outside one of their homes and an appeal to have a pine tree flag outside the other. Both

are known symbols of the January 6th movement, although people dispute the second flag. He wrote to members of Congress, "My wife is fond of flying flags. I am not and also refuse to recuse himself." Kedrick, you've testified last year at a hearing of the Senate Judiciary Committee focused on the Supreme Court ethics reforms. The Supreme Court did adopt a new code of conduct after that.

Talk about what the new code has to say about spouses. And what do you think about the calls for Alito and Thomas to accuse themselves in this case? The new code has the same principles that existed before the Supreme Court took this on and actually adopted it, which is that you cannot accuse.

and should not be involved in a case where your impartiality can be reasonably questioned. And that includes financial interests or other interests that your spouse may have. The problem with this code is that it is just not enforceable. So you can have the principle, but if there's no way to enforce it, then you have a problem. Now, clearly with the recusal rule, it is subjective whether justice or the judge is supposed to decide themselves. The

The thing that we need for the Supreme Court is a process where you know how that will work, where the justices are required to explain why they're not...

if they decide not to recuse. And you can possibly have a third party or a ethics, when I say third party, I actually mean an entity within the Supreme Court, an ethics office that can provide some guidance on when you should and when you should not recuse. Clearly, you can't force someone to recuse, but there should be guidance to make it clear. So there's not this ad hoc decision every time someone is asked whether it's

should recuse. And with these specific justices, Justice Thomas and Justice Alito,

It does seem that a reasonable person could question their impartiality. And at least in the case of Justice Alito, he provided an explanation. Justice Thomas hasn't even done that. So that just shows the gap in any type of enforcement of this recusal rule. Yeah, he hasn't talked about his wife. But talk about the ethics reform they changed to, the new code of conduct. Does it have any teeth in whatsoever? It doesn't.

It does not. It does not have any teeth. And this was almost expected when you had a situation where there was all this pressure for the Supreme Court to adopt a code of ethics. We could imagine as those people who are trying to push for that, they would simply say, OK, you want a code of ethics? Here's one. And it means nothing. And they simply they adopted the code.

principles and the canons that apply to lower court judges, but without any body that can follow compliance or make compliance like the lower court judges have. Right. So no enforcement is what you're saying, correct? That's correct. That's correct. And then you see in situations where there is an enforcement mechanism and it doesn't happen. So with Justice Thomas,

There are all the allegations and all the evidence that he clearly violated financial disclosure rules. Well, the financial disclosure law has a trigger where there is a panel of judges who can determine that there should be an investigation by the Department of Justice when there is a potential violation. And we don't even have an investigation just to collect the facts.

related to this very prominent potential violation of the financial disclosure law. Yeah. So let's talk to the judges themselves. The decision to recuse is left up to the judges themselves. A rule also applies to lower court judges. Judge Tatel and Judge Gertner, do you think Alito and Thomas should have recused themselves from the Trump January 6th cases? And what's the argument for judges to make this decision themselves?

Judge Tatel, why don't you start? My view as a sitting judge was even if I could...

in my own view, objectively decide a case. If I thought there was a reason I couldn't because, for example, of my blindness, which came up in a case involving whether or not the Treasury Department should be ordered to produce paper currency that was accessible to the blind, I was on that panel. I ended up recusing myself from that because even though I was confident that I could decide the case, I was worried that many people's views about blindness is weird.

And I didn't want the integrity of my court's decision to be adversely affected by my presence on the panel. I didn't want a really solid D.C. Circuit opinion undermined by people who said, well, the D.C. Circuit just ordered the Treasury Department to spend hundreds of millions of dollars, and the judge who wrote the opinion was blind. So I recused myself, and I used what I like to call the Tatel rule of recusal.

which is that if you have to think about it for more than five minutes, you err on the side of recusal. It's so important to preserve the integrity of the court that when in doubt, I recuse. Now,

Now, it's easier for me to say that than for Supreme Court justice because when I recuse myself, another judge can take my seat on the panel. And that's not true of the Supreme Court. And what we don't want is to have a justice recuse herself or himself and have an eight-justice court.

And that's – the court has said so in its ethics standards and I actually agree with that. But it imposes on the justices an equally powerful parallel obligation not to get themselves into situations where they have to recuse themselves. What about you, Judge Gerson? I disagree in this respect.

First, I think the standard of whether or not your impartiality should reasonably be questioned.

has a different resonance today, 2024, than it might have 10 or 15 years ago. In other words, in a deeply polarized country, what comprises the reasonable perception of partiality is different than it had been before. And under those standards, it is extraordinary to me that Justice Alito could continue on the January 6th campaign

And it is even more extraordinary to me that Justice Thomas can continue on the January 6th case.

My husband was the legal director of the American Civil Liberties Union of Massachusetts. These issues were not, you know, came up in my court, and I would recuse without a doubt for the reasons that Judge Tatel just described. So I think what reasonably questioned, it means something different in these very fraught times. I also don't accept the view that it would be a calamity for us to have an a-justice bill

And the reason is we have had that in the past. And then when you step back from that in these very fraught times, the notion that this is the way I would put it, an illegitimate justice is breaking the tie is unbelievable. Right.

So if there is a 4-4 split and Justice Thomas is the one who breaks the tie in one of the January 6 cases, that should give all of us pause. It's precisely the opposite. It seems to me those who are challenged in this way should not be participating in

In the ultimate decision. In making the final decision. Yeah, let me say one other thing. It's a wonderful thing that wives and husbands each have independent careers and political proclivities. That's fine. But when...

When my husband's positions bleed into my courtroom, I, as I said to the Washington Post, one of two things would happen. Either I recuse or I get a divorce. Just saying. Right. Okay. So, Kendrick, when you think about this, what they were just saying, like, you don't put yourself in that situation, how do you look at that? You know, the way I look at it is that it shows the reason why there must be a

Supreme Court code of ethics that is enforceable because otherwise people are just wondering what happens with all these allegations. Do they just go into this black hole and nothing happens? And that's what has been occurring. If you have allegations that someone should recuse, you have allegations that someone has received improper gifts and nothing actually happens in the public domain.

slowly loses trust with the court, especially when they know that wherever they work, there is a HR code and they have to comply with it. But even in the highest court of the land, nothing happens. You start to think that not only do these individuals not have integrity as individuals, they don't have integrity as a court as a whole, which is a bad place to be, especially when they're deciding these consequential decisions that we started this whole conversation discussing.

Yeah, they refused to quit. So Democrats and Congress—

They shouldn't. And if the consequences of that is an eight justice court, then that's what we have to deal with. My only point was that this puts a huge burden on justices never to get into that situation. Right. They have to preserve the integrity of their court. It's their responsibility. We'll be back in a minute.

Hey, Karis Fisher listeners. Sue Bird here. I'm Megan Rapinoe. Women's sports are reaching new heights these days, and there's so much to talk about. So Megan and I are launching a podcast where we're going to deep dive into all things sports, and then some. We're calling it

a touch more. Because women's sports is everything. Pop culture, economics, politics, you name it. And there's no better folks than us to talk about what happens on the court or on the field and everywhere else too. And we'll have a whole bunch of friends on the show to help us break things down. We're talking athletes, actors, comedians, maybe even our moms. That'll be a fun episode.

Whether it's breaking down the biggest games or discussing the latest headlines, we'll be bringing a touch more insight into the world of sports and beyond. Follow A Touch More wherever you get your podcasts. New episodes drop every Wednesday.

What is up, people of the internet? I'm Marques Brownlee, aka MKBHD, and I just wanted to quickly tell you about my podcast, Waveform. So after making tech reviews on YouTube for over a decade, I've had the chance to check out some real groundbreaking tech and some real dud products. And so on Waveform, along with my co-hosts Andrew Manganielli and David Amell, we capture our immediate reactions to new technology that's coming out every week, from smartphones to EVs, and even AI finding its way into everything. We've got you covered.

And you also get a bit of a sneak peek into what it's like working at a YouTube channel closing in on 20 million subscribers. So if you want to stay up to date with the latest tech and internet news and culture and all sorts of stuff like that, you can find us on Spotify, Apple Podcasts, or anywhere you listen. See you over there.

So Democrats in Congress have been trying to codify Supreme Court's ethics rules. Last week, Senate Republicans blocked the Supreme Court Ethics Recusal and Transparency Act, a bill proposed in the wake of last year's scandal that continues into this year. I'd like to play a clip from Senate Judiciary Committee ranking member Lindsey Graham explaining his objections. He's a Republican, of course. Judicial investigative panels in Section 2 of this bill are made up of lower court judges who would actually...

preside over their bosses. There is one Supreme Court here. This is unnerving to have a group of lower court judges basically having an investigative panel, the ability to investigate the Supreme Court, the constitutionally designated Supreme Court. Recruital, that's been up to the individual justices since the court's founding. This bill would create a panel

of judges decide when a Supreme Court justice should be recused. Again, that just puts the court in, I think, disarray and fundamentally assaults the one Supreme Court we have.

All right, so nobody can judge them, can't judge the judges. So, Kedrick, first, the investigative panels Graham is talking about would be randomly selected chief justices from circuit courts. Do you think his concerns are legitimate? What do you think of the depiction that would be presiding over their bosses? And then I'd like to get a thought from the two judges. The only reason I don't think that the...

The opinion of the senator is completely legitimate because he did not offer an alternative. One alternative is for it to be an internal body within the court the same way you have in the other branches of government. The advice that is given to the senators on ethics comes from within the Senate. The House has their own ethics committee within the House. Well, the decision should be made from within the court.

with an ethics body there if the only issue is the lower court judges. Judge Gertner, talk about this. Would you like to judge the bosses, for example? I like it all the time. Every other high court in other Western democracies judges.

have a mechanism to judge the judges. And it's another example of how extraordinarily powerful this group of nine is. So the notion that a randomly selected group of chief judges of the courts

would make a decision, and how to enforce it would be another question. But the notion that a report about, say, Justice Thomas' wife or a report about the flags, in one sense, wouldn't need to be enforced by the marshals at the door. That alone, that statement by a neutrally selected group

Would or should have an impact. I mean, as I said, other courts and other countries, Western democracies have had to deal with this issue. It doesn't happen very often. And sometimes the existence of such a panel affects what the judges do. So while it is, you know, to a degree awkward, it's certainly better than... That's right. You know, Justice Thomas essentially not thinking he has to explain anything.

And Justice Alito's explanation was really quite simply laughable, just laughable. I just want to say one thing to make something clear. When we talk about enforcement, I think it is very important to say what enforcement means. We're not saying that somebody is going to be able to kick the justice off of the court. That is only the impeachment power of Congress.

of Congress. We're saying enforcement in the sense of fact-finding and in the sense of disclosure, transparency of what is happening with that fact-finding. It's really that simple. Yeah. So, Judge Taylor, you sat on the D.C. Circuit Court. What's the answer here to you? Who should the court answer to? Not getting to impeachment, which is the greatest, you know, that's the greatest move here. Where should these judges, these particular Supreme Court justices, be judged?

I think that's a really hard issue. Judge Gertner knows much more about this than I do because she served on the President Commission and they thought about this a lot. My view is not an especially popular one, but I'm among the group of people who think that there's serious constitutional problems involved.

inherent in any effort to make an ethics standard enforceable. The Congress has authority over the court's jurisdiction and its size and many other things, but I'm doubtful that it can constitutionally enforce a

ethics code short of impeachment. So there isn't a solution. That's my instinct, but I might be wrong about that. I haven't studied. That's just my instinct. I do think the most important thing we have is disclosure. I think the financial disclosure obligations are critical. If there is no enforceable mechanism, at least the public should know that

what judges are investing in, and where they're getting their income. It's a huge privilege to serve on a court, and our salaries are guaranteed for life. We're financially secure. So disclosing the source of income and- Not if you want a big camper, but go ahead. Go ahead. And maybe even limiting certain-

Yeah. Certain contributions is fine. But I think the answer to me is transparency here. And the more we know, the better. I use the same rule on my financial disclosure form that I used on recusals, which is when in doubt, I put it on the form. You put it on there, no matter what you get. So I want to last talk about this and then finish up with the Trump cases and the future of the court. But one of the things is things that are just

You, the person you are actually behind the scenes, because everyone's a human being. We often forget about that. They're up there dressed up, looking godly in a lot of ways. And speaking of godly, Justice Alito also recently was caught on tape agreeing that America should return to a state of godliness. There are now petitions, including one from a Christian group, calling for him to resign as a result.

But if they are the way they are, how do you guard against that? There's no ethics rule that can stop you from being the person you are and thinking godliness is as important as anything else. That's true. There's no, right? That's just like, there's no law. You can have all the laws you want that are against crime, but there's still going to be crimes that happen. You can have all the ethics rules. There's still going to be unethical behavior. The way our court system works is that if there are views by the justices that no one

espouses anymore or that grows out of favor, over a course of time, those justices are supposed to be replaced with people that the public has voted on elected officials to appoint to the court. And Judge Girtin, I'd love your thoughts on this. Well, think about it. Disclosure without consequence undermines the authority of the court.

So let's say now going forward, Justice Thomas happily discloses the next RV that someone purchases for him, or he happily discloses the next trip to Bali that someone else paid for, but there are no consequences. It seems to me that disclosure and transparency are important, but if it doesn't affect their behavior...

and it doesn't affect what they do. And I take Judge Tatel's point, it did mine, I would err on the side of recusal every time. If it doesn't affect their behavior, all it does is it continues to delegitimize this court. And what seems so clear with the controversies, particularly with respect to Justice Thomas, is that he didn't feel the need to explain. We don't have public figures in a democracy like that, even judges.

Well, we do actually. Right. We shouldn't. We'll be back in a minute. So I want to finish up talking about two things, the future of the court in that regard and the Trump immunity case, because this is having immunity. This is having immunity without consequences, what you're talking about. And there's the Trump immunity case they have to decide. So these are people who feel immune or are immune who are deciding on whether former presidents have complete and total immunity. If

If the conservatives on the court kick it back to the lower courts, could it be a convenient way for them to get Trump off the hook while maintaining a seemingly apolitical stance? Am I reading that correctly? Why don't you start, Judge Tatel?

I'm not going to answer your question, but I'm going to answer a different question if that's okay. I thought my court's decision made sense to me. I read it. I thought it was completely convincing. But I don't object to the Supreme Court granting certain hearing. I think there are some issues in our country that are so important that even if the Court of Appeals gets it right, it should be decided by the nation's highest court. So...

Had I been on the court, I might well have granted cert also. And I'm also not, like many people, critical of the court deciding it in the ordinary course. I think that timing of the election is not its problem. And it's such an important issue. It should decide it correctly. All I hope for...

is that they produce a non-ideological decision that is principled and that can give the country confidence that it's the result of a judicial process and not a political process. The case is so important that the court has to find a way to send that signal to our nation. Whatever they decide, half the country is going to agree with it, half is going to disagree with it.

They need to decide it in a way that at least most people respect it as a legitimate act of judging. So, Judge Gertner? I agree. I sort of agree that they had to grant cert on the case and that they ordinarily should not consider the election. Can you explain what grant cert is for people who don't know? The court has the discretion in most cases, not in all, to decide what it will decide.

And so it could have decided here not to grant certiorari, not to grant review in this case. But what I'm saying is that since the inception of the court as it's presently configured, there have been so many situations in which the court has cut

corners, taking cases without waiting for the Court of Appeals to decide, taking cases on an expedited schedule just because the government, in that case the Trump administration, asked for expedition. So the notion that they're now being pure and saying we're not going to consider politics or the election doesn't make any sense. It goes back to who this court has been. So I want to finish up talking about what that is, because the court has made mistakes before.

Right. The five justices in the Rehnquist court prevented the state of Florida from finishing its recount. They have had mistakes before. The American public still held the court in pretty high regard. Right. So they've made these mistakes. They've made hypocritical decisions. Only 39 percent of Americans think the Supreme Court is doing a good job, according to a recent Marquette Law School poll. It's clearly along partisan lines. More than half the Republicans approve the court compared to 23 percent of Democrats. Is there something that the Supreme Court should be worried about and what impact does

public opinion have, if at all? Let's go, Kedrick, you go first, then Judge Gertner, then Judge Tatel. Public opinion is key for the court. The reason it is legitimate is because the people who

Hear the opinions, respect the opinions, and then that allows us to have that final say for what the Constitution means and what our laws mean. If you slowly get this court losing the respect of the public and not regaining it in any way, then we don't even know what the consequences are. I don't think we've been in a situation, at least in modern times,

where the court continuously gets involved in very high profile and divisive cases while at the same time being just inundated in ethical scandals with the individual justices.

Judge Gertner? The classic quote is, I believe it was reputed to be by Andrew Jackson, who said, John Marshall has made his decision, now let him enforce it. And the implication was that the Supreme Court doesn't have its own army, doesn't have its own enforcement mechanism. And if the court is undermined, if the legitimacy of the court is undermined, it would have an impact then on how

how much people respect its opinions. And given the power of this court, that's an extraordinary problem. So yes, they should be concerned if they're concerned about the future of the court and if they're concerned about the future of the country. Judge Tatum? I would just say if you look at this from the perspective of your average American citizen, you know, if you don't like what Congress has done or what the president has done, you vote against them.

The decisions, Supreme Court justices are appointed for life. They're unaccountable politically. So why do the American people tolerate an institution like this in a democracy? They tolerate it because it's viewed as a judicial body, as a body that isn't making policy, that's applying the law to the facts. And therefore, we have confidence in that because it's performing a judicial process that's critical to our democracy.

When the court begins to chip away at the separation of powers and the checks and balances as this court has, and as it does so increasingly with five to four and now six to three ideological votes, going back to my average American citizen, they look at the court as an unelected legislature. And why would they have any confidence in that? Right.

Every episode we ask an expert to send us a question. This one comes from Roberta Kaplan, who led the legal team representing E. Jean Carroll in the lawsuits against Donald Trump, among many accomplishments, including arguing in the Windsor gay marriage case before the Supreme Court. Let's listen to it. The great Linda Greenhouse recently wrote a New York Times column entitled How John Roberts Lost His Court.

Judge Tatel himself has similarly warned that the future of democracy, not to mention the future of our planet, is actually imperiled by the current Supreme Court majority. Judge Tatel has noted that the court had become an institution that he, quote, barely recognized, end quote.

Two questions flow from this. One, keeping in mind all the various proposals that have been made for reform, what do you think would be the best way for the Supreme Court to regain the confidence and trust of the American public? And two, keeping in mind that everything in this world isn't perfect, what do you think would be the most realistic way, if any, for that to happen?

Okay, Kedrick, you start. What I would hope is that the justices themselves get together and decide that enough is enough and they personally want to regain the trust of the public, which means you will see more unanimous decisions

There may be very twisted opinions to get there, but unanimous decisions to show that the court is trying to work together, which I think about landmark cases such as Brown versus Board of Education, where they understood that you had to have a unanimous decision in order for the country to see that you're working together. What do I think is most probable is that...

Justices will soon leave the court and be replaced by justices that are different in their view. And hopefully it would be a positive change and not more of a negative change. They could die. That's the only way they lose their job. I didn't want to say that. Yeah, I said it. Go ahead, Judge Gertner.

Well, I mean, I think there are short-term and long-term solutions, and I actually – I think I took this page from what Kedrick was saying, which is very interesting, which is if there was at least an entity within the court –

within the Supreme Court that did fact-finding with respect to this, with these issues, the ethic issues. And that would make a difference because we believe that people want to be in good faith. And so having a fact-finding body that would say the following happened and, you know, and it was wrong, I'm not confident that that would happen. Witness the really lame investigation as to who leaked Dobbs. So that's a short-term, immediate fact-finding. Some entity do a fact-finding investigation.

So the longer institutional issues were suggested in the White House Commission. Nobody recommended it. But frankly, I took the position that this was, as we called it, a break the glass moment, which is that this is a very dangerous situation.

Court that has been undoing precedent at a speed which judges never operate at. Why was it necessary to do the, you know, to sort of throw out precedent at the speed with which they are doing it? I argued and Professor Tribe argued to expand the court.

There are all sorts of political issues with respect to that and concerns that the next administration would expand it and we'd wind up with a court of 100 people. But I do think that something needs to be done that we can't simply— And term limits, yes. But term limits would require a constitutional amendment, whereas expanding the court would not. I understand that all of those are fraught, but I think the present is more fraught.

Yeah. Court of 100 judges, I prefer over this one. And the most realistic thing?

Well, I think the most realistic thing is even if it's coming up with some kind of ethical fact-finding approach, even if it's not enforceable, as I said, a statement, not by the media, a statement about Justice Thomas and the extent to which he's been living inconsistently with the way judges are supposed to live in terms of being supported to the degree that he's been supported by wealthy patrons. That would help.

Yeah. Okay, Justice Tate will bring us in. This is what you write about in the book. What is the best way to greet King Thomas and what's the most realistic? I think from the court's point of view, I'll put it in personal terms, I think the court needs to do much more of what we did on the D.C. Circuit, which is to strive for unanimity, to respect the court's precedent as carefully as we can, to respect our limited jurisdiction requirements,

and to decide cases as narrowly as possible. I think if the court can do that, I think it will go a long way towards restoring its reputation as a judicial body. Now, will it do that? I don't know. I hope it does. But I say in my book that, you know, no one knows. And the only thing I can think of in the long run to resolve this problem is for everybody to vote.

The vote is all we've got and everybody needs to vote. If because of the Supreme Court's decisions, the states throw up ridiculous obstacles in your path, then get around those obstacles and vote.

If a president is saying he or she is going to appoint justices to accomplish specific policy objectives, don't vote for that president. Vote and take Congress seriously. Congress can check the Supreme Court. That's the way our checks and balances work. Many of the cases we've just talked about, Congress can correct, but Congress doesn't take that role seriously.

So we should vote for members of Congress who understand their constitutional role in the checks and balances. This is a long, long run solution. But to be honest, Cara, I don't know what else to suggest. All right. This has been great. I really appreciate all three of you. And I appreciate all your incredibly thoughtful answers. Thank you. Thank you. Thank you.

On with Kara Swisher is produced by Christian Castro-Russell, Kateri Yochum, Jolie Myers, and Megan Burney. Special thanks to Kate Gallagher, Andrea Lopez-Cruzado, and Kate Furby. Our engineers are Rick Kwan and Fernando Arruda, and our theme music is by Trackademics. If you're already following the show, you get to pick the next flag Martha Ann Alito flies. If not, recuse yourself and stop riding around in Clarence Thomas' Prevost LeRoumage XL Marathon RV.

Oh my God, Clarence Thomas, you have to stop. Go wherever you listen to podcasts, search for On with Kara Swisher and hit follow. Thanks for listening to On with Kara Swisher from New York Magazine, the Vox Media Podcast Network and us. We'll be back on Monday with a new episode of On.