Could SCOTUS Decide the Election? (with Dahlia Lithwick)
21:37 Share

Hey folks, Joyce Vance here. This week on the Cafe Insider podcast, I'm joined by my friend and Supreme Court expert, Dahlia Lithwick. Preet is out. Dahlia is a senior editor at Slate and she hosts the legal podcast, Amicus.

We discuss what's coming up at the Supreme Court as the justices start a new term. Could the court decide the presidential election? And how might the justices rule on high-profile disputes over ghost guns, gender-affirming care, and the death penalty? Dolly and I discuss all that and more on a new episode of the Cafe Insider podcast. If you're a member of Cafe Insider, head over to the Insider feed or click the link in the show notes of this podcast to listen to the full analysis.

Stay tuned, listeners. Remain here for an excerpt from our discussion. To become a member of Cafe Insider, head to cafe.com slash insider. You can try the membership for just $1 for one month. That's cafe.com slash insider. Now, on to the show.

So new and crazy developments at the court, right? And I think the issue looming over this term is whether the court's law work will be subsumed by gossip and ethical lapses and pure politics like it was at different points last term. The court has hit a new low in terms of public confidence.

And yet it continues to have the authority to decide some of the most pressing issues we face as a country, like the election. Right. There's there's lots of speculation that the court will decide the election this year, the outcome of the election. But what underlies the speculation? Do you think the court really will end up deciding the election all of Bush v. Gore? What would that look like in 2024? Ah.

I mean, here's where it's really complicated. And you and I have had this conversation, you know, a hundred times offline, Joyce. But I think that this slightly goes to this question of how we as journalists cover the court, because we tend to do like a big, you know, front stage, backstage coverage of the court where we unerringly cover the cases, which we're going to do a little bit today. You know, these are the

X number of big cases and how are they going to turn out? And that tends to be very doctrine focused. You know, what's going to happen to the Second Amendment? What's going to happen to LGBTQ rights? And we do that with this kind of myopic focus on a kind of horse race coverage of who's going to win the cases and who's going to lose. And as you say,

If you part the curtains and look behind the curtains, there's all this other crazy crap going on in the Supreme Court world, including, as you say, like shocking ethics violations, you know, disclosures that come almost daily now from Politico and ProPublica and The New Republic and The New York Times and other places about judicial misconduct, judicial behavior.

I know we're going to talk about the huge leak, about how the three Trump cases got decided. So there's a weird way in which we haven't quite fashioned our Supreme Court watching brain to knit those two stories together.

And so we just keep falling into the trap of we're going to cover these cases and some other entity is going to keep track of all the, as you say, gossip and misconduct and other stuff that, in fact, in this point, maybe is the most important thing I want to say about this, overdetermines not just which cases are taken, but how they're decided. Like, you cannot cover these cases as kind of neutral horse race cases because...

Because, in fact, the entire structure is now owned and operated by Leonard Leo and, you know, his groups who have more money to throw at the docket and at the cases than both parties. Leonard Leo is in control of more money than both parties in this country. And so I always think of it just to get back to your question.

If you're only watching the docket as though it's some laboratory and you're like, hmm, I wonder what will happen in these 70 science experiments without acknowledging that the lab is like bought, paid for, wholly owned and operated. All the test tubes, all the little safety goggles, the whole thing is like a Leonard Leo production and his groups that he funds.

And so watching this as though there's like a chin stroking doctrinal question as opposed to does this entire lab plan to participate in throwing the election to Donald Trump? Yes or no. Which is the question you're asking. I think misses half the story. And so I'm very, very, very kind of bullish on.

on the idea that you cannot look at the Supreme Court or the cases that are coming or even the election cases that are coming through this neutral lens of, I wonder what the oracles on high have planned for us. I think if we learn nothing from the Trump cases last term, it's that even the fanciful crazy ones

of which both, I think, immunity and Anderson, the Colorado ballot case, were fanciful, crazy, Hail Mary cases, and Trump won in both of them. So let's talk about what is coming to the court, not through this prism of, I wonder what this neutral legal institution will do with Trump cases, but rather,

We now have evidence that there are either five or six justices who are perfectly happy to give this election to Donald Trump under whatever theory he brings to them. What do we do about that? And that's my sort of high-level answer to your very specific question, which is...

I'm not sure it's worth having like a deep, deep, deep conversation about whether the case that comes is going to be some version of Bush v. Gore or some question about whether you can count ballots after Election Day or Newt Gingrich.

new and improved independent state legislature theory case. It almost doesn't matter because we now have, I think, pretty unequivocal evidence that whatever that case is, we may have at least five votes to give it to Trump. Well, that's super encouraging. I'm going to have to quit drinking morning coffee and start drinking a morning glass of whiskey if this keeps up. So look, not to belabor the point, but

I hear what you're saying, which is that it doesn't matter if it's a legitimate case or a speculative case. You know, this is it's like when you've got a science lab that's doing objective science. That's one thing. But when it's lab glass owned by the cartel, well, they're going to use it to make meth. And so, you know, we sort of know what's being made by this court.

That may be sort of a crass old prosecutor take on it, but I mean, you can't expect to get something other than the logical outcome, what you've observed in the past term from this court. Would it be crazy to hold out any hope?

that the election perhaps would be sacred when nothing else has been for this court? So that's really, I think, the question that's keeping a lot of court watchers, I know, including you, awake at night. I think the question is, we saw a whole bunch of absolutely...

batshit crazy, if I'm allowed to swear, cases get knocked back by the court in 2020, right? When Donald Trump was trying to use the court as the weapon of choice to call into doubt the results of the 2020 election, what we saw was that the Supreme Court wanted nothing to do with it. And famously, you know, 60 plus cases, Donald Trump loses.

challenging the results of the 2020 election and, you know, wins in one kind of very, very, very orthogonally related Pennsylvania case. So we ask ourselves, I think, is that the track record that is relevant, right? That the court was not interested in going down the sort of Sidney Powell, Rudy Giuliani, John Eastman, you know, rabbit hole of crazy in 2020 and

Maybe that's what happens again. Same nine justices. Well, not Katonji Brown, different justices, same conservative justices. And I think that's one column to be considered. The other is, as you say, we have a bunch of in the intervening years evidence that for whatever reason, this is not that court.

And I would add, these are not going to be Rudy Giuliani, Sidney Powell, like, cooked up at Four Seasons landscaping cases. These are going to be serious cases brought by sober attorneys who have had four years, right, to seed the ground of some of these theories that were...

You know, coffee out the nose funny when we were talking independent state legislature doctrine four years ago. Those are serious or they have been made to be serious claims now.

And so I think that we have to take seriously, A, that those cases will be robustly argued by smart lawyers. There will be, you know, records, trial records that are not insane. There are a lot of Trump judges with skin in the game who may have been inclined in 2020 to say, like, this is too far.

And also, I think, and this is, I think the question you're asking me, and like both Laverne and Shirley want to tell you, I'm not 100% sure this is the same John Roberts. I think that for me, the animating...

anxiety reading, you know, his work product, particularly in the immunity case last year, is that the John Roberts who wanted nothing to do with January 6th insurrectionism, with, you know, MAGA fake facts, with putting Donald Trump on

back in office in order to, you know, oversee the demise of rule of law and constitutional democracy. I don't know that that John Roberts was in evidence last term. I saw a very different John Roberts from the one that I've covered most of my career.

And the John Roberts I saw had no problem with January 6th, which happened, by the way, across the street from where he works, had no problem with Trump's most insane immunity claims, had no problem seemingly with the claim that he can and should commit more crimes in office once he's president because, you know, shruggy emoji executive power claims.

So I guess I would ask you the same question. Do you have any reason to believe this is the same court that refused to take a Bush v. Gore style question in 2020? Yeah, you know, I try to remain optimistic. But as you say, it becomes increasingly difficult. And I think...

The one thing that gives me hope is that this is a court that's facing intense new scrutiny. I just don't know how that stacks up against Leonard Leo's money. And that's about as close as I can get to an answer, right? I think that's right. I think...

Again, if we had been having this conversation, I can't remember if we did this last year at this time, I would have been the one to tell you, look, we know on that 6-3 supermajority on this court, which of the justices just don't care about increasing public scrutiny and justice.

skyrocketing public doubt and lack of confidence in the institution. And those justices are Clarence Thomas and Sam Alito and maybe to a lesser degree, Neil Gorsuch. And I would have said there are three justices at the center, which is not the center. It's the far right center of the court that care deeply. And that's Roberts and Brett

Brett Kavanaugh and Amy Coney Barrett. And it's not an accident that they're younger, right? It's not an accident that they plan to be on the court for 40 more years. It's not an accident that they're kind of in the tank for Chamber of Commerce, you know, country club, big business Republicans who actually want to have a functioning democracy because it's good for Chevron, you know, the company, not the not the court case, clearly.

I don't know that that's true anymore. I think that my belief that the American public opinion could influence and shape and modulate the behavior of at least

The Chief Justice and Justice Kavanaugh and Justice Barrett has been profoundly shaken this term. And I am not sure that the fact that the popularity ratings are in the tank or that vast majorities of the country across ideological lines believe the justices to be pure partisans.

I don't think John Roberts has lost a wink of sleep over that in the last year. I mean, that's incredible when you think back to the immunity oral argument in this hypothetical that everyone had been floating in some shape or form that comes out as can a president use SEAL Team 6 to order the execution of a political opponent?

And John Roberts seems to be okay with that, which is really a shocking change from the public persona of John Roberts that I think we had all been assuming was John Roberts as the chief justice. Dahlia, that takes us to this reporting from The New York Times, this sort of remarkable reporting discussing the internal workings of the court and the chief justice's role in its evolution into this sort of pro-Trump force.

I think you agree with me that that's a fair characterization, right? That this has become Donald Trump's Supreme Court in many ways. I 100 percent agree. And I also really would say people who don't understand the enormity of that leak. I mean, I think the leaking that happened to Jodi Kantor and Adam Liptak in The Times piece, How Roberts Shaped Trump's Supreme Court Winning Streak, published in The Times last

On September 15th, I think that is more extraordinary even than the Dobbs leak in many ways. I mean, it really shows that the court is buckling under some kind of pressure that we've never seen before, that the leaking is coming like from inside the house. And that, as you say, the only thing I can think of to animate that level of just overreaction

open leaking to the New York Times is a sense, as you say, that John Roberts is in the tank for MAGA. So the reporting, and maybe you'll put some meat on the bones, but this is reporting talking about the

court's internal conduct of the three Trump cases, the Colorado case involving whether he would be on the ballot, the obstruction of justice statutes application to rioters on January 6th, which has implications for Trump himself in the special counsel's Washington, D.C. case, and then, of course, the immunity case. And Roberts, I think, played a role that's a far cry from the institutionalist that he has always portrayed himself as being a

What caught your interest in the reporting? As I said, I think it stood in such stark contrast to promises that people like me were making even not even just a year ago, Joyce. I would say like in January of 2024, I was saying, look, they're going to steer some moderate path between these cases. They didn't actually want any of these cases.

insurrection cases. They just, you know, they had to take the Colorado case. They had to take the immunity case. You know, they're going to find some way to split the baby. You know, I was one of the people who predicted, you know, Trump will win on the Colorado ballot case. Court's never taking, you know, the former president off the ballot, but he will surely lose in the immunity case, particularly, as you note, as like briefed and argued, which was the most maximalist

claim of presidential immunity that Trump's lawyers could have coughed up. You and I were in the same camp on that split, by the way. I think many, if not most, court watchers thought that

at the end of the day, even if the court slightly prefers the sort of Trumpist, you know, executive power theory, they don't want to see their own reputational interests in a dumpster fire only weeks, if not months before they have to adjudicate the 2024 election. Right. I mean, I really made that claim. And I also made the claim. I would add two other things. And I think you and I may agree on these as well.

which is a problem with crossover shows, is that Laverne and Shirley and Fonzie are all like, yay, Fonzie. We agree so much. But I think that the other two pieces of this are that the court, I would have said, again, was...

because the bulk of the court was a conservative court, even a FedSoc court, you know, certainly a movement conservative court. You know, don't forget Barrett and Kavanaugh and the chief all worked on Bush v. Gore, right? I would have said all those things. And yet that the court didn't want to be a part of, you know, putting into office the person who will, in my view, end the rule of law as we understand it in America. I really thought that

To be pro-business is not to be pro-Trump in terms of putting someone in office who will immediately decimate the Justice Department, who will immediately start, you know, jailing political opponents and quelling free speech and all of that. So I was surprised. And I think the last thing is what I flicked at it up top, which is the justices watched

January 6 unfold across the street. And these are the justices who just have experienced what it's like to have people knocking on their front doors. They had to put barricades around the Supreme Court after Dobbs. So I thought the court would be unbelievably solicitous of arguments that

There is a line between, you know, peaceful protest and inciting insurrection because it applies in their view to how they were treated after Dobbs and that they wanted to be careful of, you know, flaming insurrection and having people, you know, vigilantes out there on the streets with guns taking over government institutions. I was wrong on all of those counts. Right.

And the real tell, I think, is if you read any of those opinions in Fisher, in Anderson, and in the immunity case, there's no sign until you get to the dissents that the court even cared about January 6th. They were just like, events happen, things unfolded. And until you get to the dissents where you have the dissenter saying, oh my God, they actually killed people that day, you would never know. And I think that the real...

blockbuster in Jody and Adam's reporting is that the Chief Justice made the decision that if he talked about it in like lofty institutional separation of power terms, that the American people would be mollified, that we've moved so far in the sort of Mitch McConnell framing. We've moved so far from January 6th that we can just talk about it as a separation of powers problem. Yeah, I mean, let me read some of that reporting, which I think is one of the most amazing parts of this piece.

The New York Times report says, "...in his writings on the immunity case, the chief justice seemed confident that his arguments would soar above the politics, persuade the public, and stand the test of time. His opinion cited enduring principles, quoted Alexander Hamilton's endorsement of a vigorous presidency, and asserted it would be a mistake to dwell too much on Mr. Trump's actions."

In a case like this one, focusing on transient results may have profound consequences for the separation of powers and for the future of our republic, he wrote.

Our perspective must be more farsighted. I mean, that's exactly what you're talking about. And that's the incredible hubris of essentially giving Donald Trump room to rumble and relying on Joe Biden's good faith while he's in office. I mean, it's one of these things is not like the other, right? Right. And I think, you know, as we're talking, I'm just looking at the headline that Trump speaking to reporters at a campaign rally.

rally in Pennsylvania said that anybody who criticizes the Supreme Court should be jailed. These people should be put in jail the way they talk about our judges and our justices. Like this idea. Honey, we are we are going to have matching cells before this is over.

I hope you found our discussion informative. To listen to the full episode, head over to cafe.com slash insider to become a member of Cafe Insider. You'll be supporting our work and get exclusive access to full weekly podcast episodes of Insider and bonus material from Stay Tuned with Preet. Head to cafe.com slash insider.

Thank you.

It's time to cut through the noise and make a real impact. So tune into the future of marketing, a special series from the PropG podcast sponsored by Canva. You can find it on the PropG feed wherever you get your podcasts. And we're back with Canva presents Secret Sounds, work edition. Caller, guess this sound. Mouse click. So close. That's actually publishing a website with Canva docs. Next caller.

Definitely a mouse click. Nice try. It was sorting 100 sticky notes with a Canva whiteboard. We also would have accepted resizing a Canva video into 10 different sizes. What? No way. Yes way. One click can go a long way. Love your work at Canva.com.