What’s Next for the Supreme Court? – Beyond the Scenes | The Daily Show

By | November 15, 2022

Last term, the Supreme Court overturned Roe v. Wade, limited the EPA’s ability to regulate carbon emissions, and kicked gun issues back to the state level, overruling years of precedent and going against public opinion. Roy Wood Jr. sits down with Daily Show supervising producer and writer Zhubin Parang, ACLU legal director, David Cole and editor of SCOTUSBlog, James Romoser to discuss what Americans can expect from this new term, how justices could be held accountable for their rulings, and what it would take to course-correct and see a judiciary that is more closely aligned with public opinion. #DailyShow #Podcast

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Hey welcome to beyond the scenes this is The Daily Show podcast that goes a Little deeper into segments and topics That originally aired on the show you Know what the daily show is but we give You a little extra more than what you Thought you know what this podcast is This podcast is like when you go to the Strip club right you go to the strip Club to be entertained and eat a little Bit of food and then on the way out of The strip club one of the dancers push You to the side and says if you really Miss her you should just call her it's Never too late to try love again That's what this podcast is Today we're talking about something that Might be a little more serious than what Advice you get at a strip club we're Talking about the Supreme Court Give me a clip for the past 50 years Ever since the Supreme Court decided Roe V Wade women in America have had the Right to choose whether or not to have An abortion and now it looks like that Right is going away while many people Are upset about the decision itself some People are only upset that we're hearing About the decision this is as corrosive As destructive to the Supreme Court as We've ever seen this is an Insurrection Against the Supreme Court it is not up To a law clerk to decide when the Decision of the Court will be announced

This should have never happened they Should be able to make decisions in Private and secret and then once they're Ready to decide and let the country know How that they have ruled let it out yeah Yeah I like that a lot I understand why These people are upset you heard what They said the conservative majority on This court has a fundamental right to Choose when they want to release a Decision into the World Imagine having Some random person violate your privacy And make that choice for you who would Do such a thing The newest Supreme Court term began in Early October and today I've got three Guests to help me break down where we Are with everything going on in the Skoda's first step we have Daily Show Supervising producer and writer who Happens to be a former attorney juven Praying how you doing Jews good to see You I'm doing great Roy thank you and Thank you so much by the way for my First appearance of this podcast to give Me this trip Club intro I really Appreciate that yeah I'm really sad that I had a little bit of a meltdown there At the top of the show love is an Illusions you can never forget that next We have the editor of scotus blog a Corner of the internet where you can Read up on what's happening with the Supreme Court and they tell you

Everything that's going on it's all Right out there in the open and maybe It'll help you Ace your Civics test James remoser James welcome to beyond The scenes thank you so much for having Me happy to be here and finally joining Us the aclu's legal director and fun Fact he taught both juban and James at Georgetown law David Cole welcome to Your class reunion but first I have to Ask before we start David who was the Better student James or shooting I think I think I gotta give them both a pluses [Laughter] Just retrospectively by the fact that They've made it all the way to this Podcast a plus yes fair enough fair Enough well then since you are the Professor I'll start with you David you Know and juban James you know feel free To jump in but be respectful to your Professor right and shut your ass up Uh the last supreme court session David You know it wrapped up last June and it Was pretty contentious it was a lot of You know back and forth on a lot of Cases that don't necessarily find their Way to the top of the media cycle just To start this whole conversation off What were some of the bigger cases and Issues that were decided during the last Skoda session it was a brutal term uh You know Trump president Trump appointed Three justices uh to the court during

His time and he promised that they would Overturn Roe versus Wade and sure enough In their first full term on the court They took a case that they did not have To take and they threw out a Constitutional right that every woman of Childbearing age has grown up uh Depending upon really a remarkable Decision in Dobbs but they didn't stop There they then went on to strike down a New York law that says you know you Can't carry a gun on the streets of Manhattan unless you have a reason for Carrying a gun on the streets of Manhattan and you got to get a permit For doing so over a century old law Struck it down under uh the the Second Amendment and then they uh essentially Turned the religion Clauses on their Head it used to be that the religion Clauses required separation of church And state but in two cases last term the Court held that a football coach High School football coach had the Constitutional right to pray publicly at The end of every game in Contra contrary To his school's Direction and in a case Out of Maine they held that the state of Maine was constitutionally required to Fund uh religious school private schools If they're funding uh secular private Schools so you know where the Constitution used to say separation of Church and state now the Constitution

Requires the state to support religion And requires the state to allow its Officials to pray publicly at uh you Know at the football game of all places So you know and and in all those cases They overturned you know years of press And 50 years of press and Dobbs a Hundred years of precedent with respect To the New York uh gun carrying law and Decades of precedent on on the religion Clause cases okay so religion women guns Thank God the environment wasn't caught Up in business oh yeah yeah I missed That one I missed that one so yeah yet Yeah so so what about that banana had They had to reverse the precedent on the Environment give us that Constitutionally does not have the right To exist it turns out yeah very amazing Amazing it turns out the EPA is Unconstituted no they did not rule that The Environmental Protection Agency is Unconstitutional but they did rule That the Environmental Protection Agency Did not have the authority to require The plants that produce electric power For the grid to shift from coal power Plants to other uh more green sources of Energy they made up a new doctrine Called the major questions Doctrine Which essentially says if we don't like What a statute says we'll say it's Really important and it's major and Unless Congress has expressly provided

Precisely what the agency should do will Say the agency has no power and you know Congress is essentially more abund these Days it can't really pass and virtually Anything so the notion that it has to Kind of uh legislate in detail in order To allow us to deal with things like Climate change is a a recipe for a Disaster okay so as I attempt to not Pull my hair out everything that you Just said James all of these things that David was Just talking about went through one Supreme court session busy year I would Say like how does all of this like not Get the same level of public attention Or has it been getting exposure and we The public have just been too busy Watching Dancing with the Stars and the Kardashians and not paying attention Yeah well it's interesting I think that The Dobbs decision took up so much Oxygen from the room that people were so Laser focused on that case and to some Extent the gun's case as well that David Talked about that some of these other Cases about religion about climate Change and there were others as well That we haven't even touched on uh would Have been Blockbuster cases that would Have gotten massive coverage in any Other term but because you know the Abortion decision was so Monumental you Know some of these other cases with also

Far-reaching implications you know May Baby got pushed under the radar you know A little a little bit but I think if you Look at all of the cases and the Totality of the term what you see is a Court that is Choosing to take up cases in order to Move the law in a New Direction and a Clay conservative direction as David Said the court has a lot of discretion In which cases it wants to hear there's No need necessarily to hear the abortion Case there's an affirmative action case We'll probably talk about later that There's really no need for the court to Take up that case but the court decided That they're going to hear it and just By virtue of taking up basically the Most divisive issues in American life And American policy the court is Really intervening in in these in these Debates in ways that it doesn't Necessarily have to but reflects the the Ideological commitments of the Court's New members well and also I would say Reflects a lack of kind of judgment and Modesty I mean when you have three new Justices put on a court by a President Who expressly and publicly proclaims I'm Putting these people on the court to Overturn Roe versus Wade I think you Know a modest Court would say well let's Not you know make number one on the Agenda overturning Roe versus Wade

Because then it looks like we're just Doing the president's bidding we're not Acting like judges uh and so you know I Think most people predicted that the Court would not overturn Roe versus Wade It would maybe you know Limited at the Edges but boy as soon as you you know we We heard the argument in that case it Was clear they were they were going for It and they have not slowed down as as James indicated in the cases that They're going to hear this term so would You moving on the show now I don't know You know how he was as a student there With you David but juban they said a Plus so I think we can assume that's Accurate in every respect I don't think We need to certainly we don't need to Take any further he made a great he made A great joke in every class you know I wasn't trying to I was just trying to Answer the questions unfortunately Juven is what I believe to be one of the Emotional cores in the writer's wing and That as a writer on The Daily shows You've been you know and as a performer We have to take in a lot of the worst News all the time and then figure out a Way to make it funny and sometimes you Have to do that without feeling but Juven somehow is messed with the art of Feeling empathy within the story and Making sure that that heart is honored Within the piece in addition to the

Comedy so like so as you've been like What are what are some of the Conversations that you and Trevor had You know as a team because I'm not Always over there because y'all send me To Atlanta to be in a kayak in sneakers Because nobody told me that I needed Kayak shoes and I was wearing my good Ass anyway it was funny though right it Was funny seeing you cry on that on the Back of that River it was very peace When you and Trevor and the the rest of The writing team were reacting to Roe v Wade in that whole leak and its eventual Overturn how do you you all manage Striking the right tone because the Country was angry and there's a lot of Times when people don't want to Necessarily laugh but how do you all Maintain the balance of empathy versus Anger versus humor when you're dealing With all of the Supreme Court decisions You know it's like when you were saying Earlier you really just have to Channel All the jokes through the emotions and By doing that by honoring the emotion it Gives you the um permission both both in Your own psyche and also to the audience To make the jokes you can't pretend that People are not upset about this you Can't pretend this is not a change and Just make jokes sort of divorce from Those feelings you'll come off either You know

Um uh cruel or indifferent and the jokes Won't have that extra Um punch to them so the challenge uh I Think as a community a writer especially For topical stuff is identifying what it Is that is making you feel whatever you Are feeling about an issue and then Articulating that emotion on the way to A joke and the way we did that with the Uh with the abortion uh with the leak of The job position then eventually the Decision itself was you know especially With a lot of the writers who are Feeling very disappointed and very angry With not just the justices but also The Democratic party apparatus that was More interested in fundraising off of This than doing anything in the months Between the league and the decision to Use their power to do something about it You know the Senators like um like Collins and Mansion who were shocked Just absolutely shocked that they had Been tricked by the justices uh into Voting for them when they were assured So firmly that Roe v Wade was a President one of the jokes we had about That was that why does Susan Collins why Is she never tricked into doing anything Good it seems like the only people on The planet who didn't realize what was Happening with Joe manchin and Susan Collins who now say that they were Tricked correct I tell you by these

Judges and by the way why does Susan Collins never get tricked into improving Health care or solving climate change Huh yeah she's never like oh damn it I Accidentally canceled student loan debt Get it together Susan Yes people don't come to uh you know a Comedy show you know looking to not Laugh if you are not providing those Jokes then you are not uh you're just Opining and you can go anywhere to to Find opinions that's a challenge of of Comedy writing is shining that emotion Into jokes Um that resonate with those feelings and I think you know especially it helps With Um you know we had we had this delight To come on after Um uh the the decision was leaked and Then was was overthrown to talk about Her um feelings that she was doing Through weather report about all the Parts of the country they're going to be Devastated by this that you're going to See all the influx of people trying to Go like a hurricane into other states to Get abortions now let's take a look at What's happening along the coast Particularly in New York and California Where there is a powerful surge of Desperate people flooding into your States so blow up those air mattresses And fill up that gas tank because Tammy

From Tulsa is moving in Doing jokes through the weather Um while very being very clear what She's actually talking about I think Builds up a very funny tension Um that by the end of it when Trevor's Like this isn't really about the weather And she's like no it's not Simulator anybody who tells us what Women can do with their bodies that kind Of releases that and there's a there's a Rhythm to this and a music to it that You need to to have and you can only Have that by going through the emotions That you're feeling the real weather Event It have been tracking this for years so We knew this acid rain was coming but That doesn't mean it still doesn't burn The hell out of our So that's the weather back to you Trevor I think Thank you thank you very much Desi but Clearly that wasn't about the weather no No it wasn't Here's a question for the three of you What changed within this within the Ideology of the Supreme Court because The thing is that you know the court Since the 70s has been majority Republican appointed that's not a new Thing but it seems like the decisions That the court has been making are more Aggressively conservative what do you

Think was the match that Lit the fuse on This kind of change in ideology and Adjudication well it's true that the Court has been majority Republican Appointed for many decades but you know Until recently Judge there was no ideological purity Test for for justices or at least it Certainly wasn't as as Extreme as it is Now and so Former justices like Sandra Day O'Connor And John Paul Stevens and David Suter These were all Republican appointed Justices but these were turned out to be Liberal to moderate justices on the Supreme Court that no longer happens now Republican presidents are quite certain That every job steps they appoint will Be a hardcore conservative and will sort Of Um uh you know take consistent Ideological ideological positions with The Republican parties policy Preferences and the uh the legal views Of the federal Society Um and there are many reasons for that There's been you know an emphatic Movement on the right in particular to Support a legal conservative Establishment and appoint people within That movement to Lower Court Justices Who eventually rise the ranks and get Vetted and become the the top candidates For justice slots under Republican

Presidents I think that's right I I Think you know it's also you know the The right likes to criticize the left For being woke but the right is very Rigid in terms of what kinds of legal Views are going to be acceptable uh Within the power uh you know structure That is you know at the top of which is The Federalist Society an organization That started actually when I was a law Student but has become incredibly Powerful and to which president Trump Essentially assigned the job of of Identifying uh judges and justices and The other thing that I think that has Changed which is really significant is That you no longer have to get uh over a Filibuster to confirm a Supreme Court Justice so until the you know the end of The Obama Administration essentially Every judge every federal judge had to Be approved by 60 Senators which meant That you had to get some support from The other party the the Democrats got Rid of the filibuster when the Republicans started using it across the Board just to be obstructionist they got Rid of it for for lower federal court Judges but this but the Republicans got Rid of it for the Supreme Court once you Do that you got 50 votes uh in the Senate you don't have to look for Someone who's moderate you don't have to Look for someone who has an open mind

You don't have to try to appease the Other side and uh you know that and Trump just you know ran with that and so Um so the Republicans got rid of that Under Trump I just want to make sure we Make that clear yeah for Supreme Court Justice but but the Democrats got rid of It for judges but because it had been Abused Um uh by the Republican party for long Time it was used sparingly and then the Republicans just started using it across The board absolutely regardless of who Obama put up and so then you know that That led Harry Reid to say we're going To get rid of it for for district court And court of appeals judges not for the Supreme Court but then uh McConnell got Rid of it for the Supreme Court you know It actually is uh interesting to me as Is the the idea that the Supreme Court And that the legal system in general has Always been just an extension of Politics Um by by other means it's always been Like a critique of the left but I feel Like and I'm I'm thinking about this but Something you said earlier David that it Feels like this idea that that the Courts are just simply another part of The political project seems to have now Been adopted by almost everybody in the System now there's no longer any Perception that this is a uh court that

Uh has any legitimacy or role to play Outside of a political project and I Wonder to the extent that you were Saying that even the with Congress also Driven down to grid lock if this was Necessarily going to bring the court Into a role like this or if this is just Part of the larger Um collapse of Institutions into this Kind of like ever grinding political Culture war that uh seems to have been Accelerating the last like 20 30 years Yeah no I think it is um the latter I Think it's really hard for any Institution to stay above The Fray when The country is so divided so it makes Everyone you know sort of Sort themselves into you know into into The into one camp or the other and if You try to maintain something in the Middle you just get you know killed by Both sides so that there's there it's It's partly that you know I I do think Still that the ideal is important and That a lot of Judges including some Justices uphold this idea which is that You know they're not partisan hacks They're supposed to actually apply the Law they're supposed to be guided by the Law they're they're they are not allowed To do as members of Congress uh can just Just vote party line down the line Um but last term they didn't act that Way and their approval rating across the

Country has dropped to 25 which is Probably above Congress but it is at the Lowest the Supreme Court approval rating Has been I believe so you know since We've done approval ratings of the Supreme Court and that's because I think People see exactly what you're talking About doing that they you know that the Court is not acting like a court it's Not Doing what you're supposed to do and When you're not you know when you don't Have to run for re-election when there's No Democratic constraint on you you know Your legitimacy turns on acting like a Court being bound by law when you throw Out a a 50 year old constitutional Precedent simply because you know President Trump got three appointees on The court just exercise your muscles to Do that people say wait a minute this is Not a court anymore and so we're not Going to give it the deference that it Would otherwise be do and that's that's A very dangerous thing I think for this Society because you do need an Institution that can resolve differences That people will accept as legitimate And uh you know they're they're I think They're putting that into Jeopardy after The break I want to dig a little bit More into exactly that and let's discuss What this means for the future of the Supreme Court and what it means for the

Future of lawmaking we'll be right back After the break this is beyond the Scenes Beyond the scenes we are back we are Talking about the Supreme Court of the United States or as I call it in the Barbershop scotus It just this is just an aside James you Got to score this blog and you lay Everything out week to week on what's Going on in the court why don't the Supreme Court have a channel They need to check we got court TV and We'd be watching all these state and Local cases we don't need that the Supreme Court needs a camera in there so We can see this happening and Unfolding in real time Be nice right I could not agree more Notice block has been advocating for Greater transparency for for quite a While I don't think it's going to happen Uh the justices have long been resistant To any cameras they don't even allow Photography never mind live video now There has been one tiny incremental step In favor of good transparency which is That during the pandemic when the court Moved to remote arguments it started Making live audio streams available of Its arguments and um I think you know it Was actually like a real Boon for Education and transparency by the Supreme Court and the courts decided to

Keep that in place even when they went Back into the courtroom Um which I was I was happy about that so Everyone can listen to arguments live at Least in an audio fashion uh I think It's going to be quite some time before We actually get get video in there yeah Yeah well love the transparency now Zubin you took a lot of political Science classes and you know and you Know in the poly science class on the Government class we learned there are Three branches of government there's a Legislative branch There's the executive branch Judge Judy Brent excuse me the judicial branch I thought the judicial branch had Something to do with Just Judy more and More it does [Laughter] Next nominee if he wins re-election yeah It was going to be known as a Judge Judy She'd have to take a major pay cut to Move yeah I don't know if she would do It very true conversation she said Judy Making that money The judicial branch now we know what They do they they sit there and they try To make sure that the laws are Interpreted properly but it feels like The Supreme Court is attempting to make New laws is that what you're feeling Right now juban in terms of what's going On with a lot of the precedent being

Reversed I'll tell you Roy when you go To law school you learn that there's Five extra branches of government that Really make all the laws and it's not Something most people know about but you Also have you know the judicial later The executary all that kind of stuff It's a lot more Um real than the stuff you learn in you Know in Elementary School Alabama public Schools thank you shut up yeah you're Not going to do that no I mean that's That's always kind of been the critique I guess that you can't really interpret The law without changing it you know to A certain extent the Judiciary has Always had that that law making power Just by virtue of being able to Interpret a law and thereby changing who It applies to and who doesn't and I it Feels like the history of the Supreme Court has has been one of which justices Feel comfortable using that power and to What extent they do whether the court of That era tends to be one that is Um restrained in certain areas and is More active in other areas Um I do think you could argue for Example Um the Warren Court was much more in the Realm of of active law making uh with Respect to criminal justice over the 60s Um and we are now in a different era Where the court is much more active with

Respect to Um issues that that uh that the Conservative movement cares a lot more About uh gun rights uh religious liberty Rights as you know unbalanced to um uh Public rights opposed to those religious Uh Liberty rights I'm very happy to uh To to see if Dave and James agree with Me but it feels like that tension Between Um a Judiciary that wants to Um that cannot help but uh create law Just by interpreting law is one that Always exists and it's just a matter of Like which Justice feel comfortable Using that power in what area I think That's right although you know one of The key things about being a judge one Of the key constraints on being a judge Is that you are bound by precedent so Yeah you have to take the cases that Were decided before you and apply them To a new circumstance and there's room For discretion in how they're applied to The new circumstance but you are bound By those prior presence and you have to Try to make sense of them in a Consistent way unless you decide to Overturn those prior presses and when You overturn those prior persons then You're not bound by anything and that's What you have with a case like Dobbs That's what you have with those religion Cases that's what you have I think with

The gun cases and this term the court Has taken a whole bunch of cases Where the argument that's being made to Them is reject prior precedent and Interpret the Constitution the way we Want you to interpret the Constitution The way it never has been interpreted Before But to obstruct the ability of other Branches to extend rights uh and Protection to disadvantaged groups so The Warren Court it didn't you know did Create a lot of new law but it was Seeking to expand rights for people to Expand protection for the disadvantaged For those who are you know charged in Criminal cases make sure they have a Fair uh Fair process and like what the Arguments now are the equal protection Clause blocks State and private schools From using affirmative action to try to Lift disadvantaged groups up and to Create integrated and diverse Communities they're arguing that the Indian Child where welfare act which is A law that Congress passed to try to Keep tribal families together by is it Violates the equal protection cause and Therefore uh Congress can't seek to Protect uh Native American uh uh uh kids By singling them out in a case called 303 creative a website designer is Arguing that she has the right under the First Amendment to open a business to

The public but then deny her service to Same-sex couples because she objects to Same-sex wedding so she's invoking the Constitution to deny the Colorado Legislature's rule that a business open To the public has to serve uh has to Serve everybody so you know I think one Of the key roles of a court is that they Can protect people who can't get Protected through the political process This court you know this term may turn That on its head and use the Constitution as a as a barrier to other Branches protecting disadvantaged groups We course correct this at all like is There a way for the court to Re-legitimize itself or is this just the Way it's going to be going forward when It comes to issues like precedent it's Precedent now officially we're just Basically making new rules at this point Right yeah well look I would say a Couple things I think it is important to Give the other aside because the Expansion and the Restriction of Rights Really is often in the eye of the Beholder so it definitely is true that You can see a lot of the recent Decisions as curtailing people's rights But I think that people on the right Would see many of the decisions as Expanding rights in other ways so the Second Amendment is part of the Constitution if you believe in our

Robust interpretation of the Second Amendment you would see this court as Expanding the rights under the Second Amendment similarly if you believe that Religious liberty interests are Important you would see the Court's Religion jurisprudence lately as Expanding people's religious rights and Yes you know those rights do you know Come up against other interests I think It's maybe a little simplistic to just Say like oh the Warren Court was all About expanding rights and the current Core just wants to curtail people's Rights because I think that they would See themselves as expanding rights but They're just different rights and and They're they're different stakes and Similarly with regard to precedence you Know it definitely is true that the Current court is overturning a lot of Precedent and and quite aggressively and Quickly but again the Supreme Court has Always done that again the Warren Court Overturned a lot of precedent Brown Versus Board of Education one of the Most iconic decisions in Supreme Court History overturned precedent and let's Not pretend that you know if you know Kamala Harris you know is elected to two Terms and you know appoints you know Four new justices when Congress passes The court and you know a newly liberal Supreme Court will almost certainly

Overturn the Dobbs precedent and Re-entrine a right to abortion and so Like what's good for the goose is good For the gander I think you know liberal Justices do this too and and so I think It's just important to recognize that no You asked about sort of ways to create More account ability and I think there Are some things that Congress could do They can certainly expand the size of The Supreme Court there are proposals to Enact term limits on the justices which Would ensure that each president gets to A point like sort of the same number of Justices and I I think actually the most Interesting proposal is to uh to do Something called jurisdiction scripping Which sounds wonky but it would Basically be Congress just simply saying Um the Supreme Court just doesn't have The power to review laws in certain Areas so for example Congress could pass A new voting rights law and literally Say The Supreme Court has no power to strike This law down that is absolutely within The power of congress to do so there are Things that you know the political Branches could do to check the Supreme Court to reduce the power of the Supreme Court or or enact you know ethical Oversight I don't see any of those Proposals really getting off the ground Uh Biden hasn't spent a lot of political

Capital on these things and with the Exception of a few Democrats in Congress I just don't see the political will to Um to enact these sorts of Court reforms Okay so let's stay right there in that Pocket for a second with regards to [Music] Expanding the court versus term limits Should we do term limits James and juban Should we expand the Supreme Court or What are some other ways that we can Return to a Judiciary that's more Representative of what the people think Instead of just doing what the hell they Want to do or doing what the hell the Political person who appointed them Wants them to do well I do think that if You have a Judiciary that is more Responsive to the public in in the in The in the way of which they are Appointed by presidents more regularly And not directly elected which I think Is is probably too representative of Public opinion for Judiciary I think That would go a long way towards at Least allowing there to be a little less Pressure on the system in other Elections where you know you see senate Elections almost entirely now hinge on Who will give the president the majority They need to elect Supreme Court uh or To appoint Supreme Court Justices you'll At least you know pull a little bit of Of the venom out of that uh area and I

Think that's by itself a good reason to To go to term limits to guarantee at Least the winning president gets you Know two supreme court justices And then you don't uh have these Situations where you where you have These like bizarre imbalances uh where Some persons get to a point in Lots some Persons don't appoint any and everyone Is just sitting here kind of just Looking at Ruth Bader Ginsburg being Like lady do you want to do anything Um in the next year so maybe step down Uh or basically how they hounded uh Briar off the court Um it's not funny but there were a lot Of people during near the end of Trump's Term where people were going we need you To live until Biden gets into office And that's the kind of political Thinking that you would not necessarily Want your Supreme Court Justice to have To have to sit there and think in that Element like you know how you know to Have this political calculation of when Should I retire or or you know how long Can I you know should I just like keep Pumping the vitamins so I can last past This particular president's term so I Think that certainly would help reduce The the rest of the political Um uh pressure on the system or in the Very least would help a little bit more Public acceptance of of a court

Um of the decisions if they know that Well you know if we really hate this Decision we can you know we will have a Regular chance to uh to vote Injustice Who might you know modify it or overturn It it is it isn't striking what you were Uh saying there about the The Logical Decision because I do feel like again This goes to my sense that this court is Just openly Um political now uh was reading Um uh just as alito's concurrence in the Uh gun rights decision that overturned New York's gun safety law it read like The most Fox News poison Grandpa screed I have ever read in a in a supreme court Uh decision and it felt to me like this Is the writing of a person who does not Really who's not really trying to Convince anybody He is mad that The Descent brought up a Uh a point Um that he uh disliked and bring up and Wanted to just complain about and if you Are able to make unaccountable decisions Democratically you should the whole Entirety of opinion is you should have Your reasoning made very clear And if it is getting to the point now Where the justices are able to either With Shadow dockets or these kinds of Opinions just be like uh you know this Is what like Tucker said then I think Like you are really heading towards a

Situation where nobody is going to Respect the court regardless of their uh Of you know whether it's a conservative Court or a liberal court and I think That's the the real poison in in terms Of the course legitimacy David how do we Get them back to a place of legitimacy Where they're supposed to you know honor The beliefs that the electorate the People that they're supposed to be Serving how do you honor the people that You're serving and not just yourself in Your own interest how do we hold them Accountable one thing that history shows Is that uh over time the court has Actually relatively rarely parted Company with where the country is on the Fundamental issues that are presented to The court when it has it has lost its Legitimacy it has come under attack and There's been a course correction so you Know the the the first uh major time was In the the early part of the 20th Century the Progressive Era the Depression you know people were hurting And and Congress and State legislatures Responded by passing laws that protected Workers protected consumers from Big Business and the court kept striking Those laws down as violating the rights Of these corporations and that's what Ultimately LED FDR to propose packing The court and he didn't actually pack The court but the court itself corrected

Uh and and started letting all those Laws protecting the rights of consumers And the rights of workers go through and I think another time arguably is the Warren Court the Warren Court to some Degree got out ahead of uh where the Country was and for a long time Thereafter there's been a sort of course Correction not a radical course Correction but a course correction you Know I take James's point that you know One right you know the rights are in the Eye of the beholder to some extent But you know not when you're talking About Um you know abortion you know that is a Right that 50 of this country enjoyed For 50 years and the court just took it Away it no longer exists you know and And I think you know to say well you Know the the on something like Affirmative action the court is going to Take away the power of uh universities To try to do justice to try to create Integrated communities to help the the Little guy right so yeah you can protect The rights of the powerful against the Little guy uh and say you're protecting Rights but that's not what we expect a Court to do in a in a constitutional Democracy so when it doesn't do that we Have to condemn it we have to criticize It we have to you know protest uh you Know in the streets we have to vote like

Our rights depend on it we have to look To Alternative forums like State uh Supreme Courts and the like but Ultimately I think the court will get The message if that happens and the fact That its approval rating is is 25 They're already you know they've gotten The message in the sense of they're Going out and trying to make speeches Saying oh no we don't decide cases on Political bases we're you know we're not Politicians but you know they're not Going to win their legitimacy back by Making speeches they're going to win Their legitimacy back by acting like Judges following precedent and not Deciding cases that really go against Um you know our our country's most Fundamental values today David do you think that in that uh Because of that that it's better to uh Leave Um this question of legitimacy up to uh The individual Justice that it's better To trust them to kind of like understand When they've gone on over their skis or Do you think there are any structural Changes that might operate uh that might Operate better and take that Decision-making out of the hands of Their you know their own like savviness As political operators yeah the fact That everyone's talking about all these Sort of you know packing the court or

Term limits or jurisdictions that in and Of itself sends a message to the court Hey when we're doing something wrong Because no one was talking about that For a long time now everyone's talking About it right so that in and of itself Sends a message you know of those Reforms I am I I think the term limits One makes a lot more sense than than Packed in the court or jurisdiction Stripping but Um and I don't know that we'll ever get There but I do think we might get there If they continue on the line that they Seem to be going on you know it used to Be you made narrow incremental arguments Because that that's the way the law Developed in incremental narrow steps Now you're seeing Advocates Advocates Come in and say hey throw it all out and Let's start over and let's look back to You know let's get be bound by what what Happened in in 1789 and ignore the fact That 200 years of History has has come In between and you know they could do That because they've shown in cases like The religion cases the gun cases and the And abortion that they're willing to Throw out Um you know to just impose new rules and You know it's possible that they double Down this term uh and this is as big a Term as last term with you know the Affirmative action case with

Um the very very important voting rights Case that we did with the legal defense Fund that was argued just a couple uh a Week or so ago it's possible they Doubled down and they doubled out this Term on equality and deny you know the Ability to try to address equality Probably the biggest problem this Country three faces and if so I think There's going to be more and more Criticism and there you know at some Point their approval rating will go Below Congress oh well this is great News and I appreciate you for bringing That to the podcast thank you very much For a matter of fact I I just need a Break right now because you've made me So frustrated Uh after the break we're going to bring It home and uh we're gonna see if the Three of you can say anything nice about Scotus or give us anything Optimistic to leave this podcast with Okay we've been hitting them for the First two breaks with gut punch at the Gut punch I want all I want all three And it's sitting think of something nice That what you're looking forward to with The Supreme Court you have during these Commercials for mattresses or whatever They're gonna play during this Commercial you have that amount of time To think of nice things to say about the The Supreme Court okay

I like the ropes I I don't think y'all are going to do it Uh this is beyond the scenes we'll be Right back oh my Lord Beyond the scenes we have been talking About the Supreme Court of the United States and all of the Odd and controversial and contradictory Decisions they've been making there Strip your laws away and before the Break Dave it was so kind to remind us That now they will be trying to attack Equality thank you so much David for that last little bit of good News before we all had to take a screen Break what are some other things that Are going to be in the scotus this term That also live under that umbrella of Attacking equality I know at the state Level there's been a lot of Gerrymandering issues there's also been A lot of you know equality cases in Terms of denying same-sex couples Services and stuff like that uh what Else is in motion right now in this term So I already mentioned the affirmative Action the public accommodations laws First Amendment exemption from public Accommodations laws and striking down The Indian Child Welfare act but there Are two big cases involving uh Essentially gerrymandering one involving Racial gerrymandering by um your home State I guess of Alabama where oh yeah

27 of the population is African-American But only one of seven congressional Districts do African-Americans have an Uh a meaningful chance to elect a Candidate of their choice and Coincidence and we and we challenge that Under the voting Rights Act the ACLU and The legal defense fund challenged that And we won unanimously before a Three-judge panel including a trump Judge on that on that court because they Applied existing law under the Voting Rights Act which says if you you know Create the districts in a way that Denies a minority group a meaningful Equal opportunity to elect candidates of Their choice you have violated the Voting Rights Act whether you do so Intentionally whether you can prove Intent or not doesn't matter Alabama Appealed and they're arguing essentially No you got to prove intent which Congress was very clear that that is not What is required and then there's Another case out of North Carolina where The Republican majority in North Carolina drew a congressional map that Is skewed skewed heavily towards Favoring Republicans over Democrats far In excess of their actual percentage of Of Voters and the North Carolina Supreme Court said that's uncon that's Unconstitutional under the state Constitution because you can't partisan

Gerrymander and the North Carolina Republicans have taken that to the Supreme Court and said there's this Thing called the independent state Legislature Theory it's a theory because It's not a rule it's not a Doctrine it's Never been recognized before but they've Been hypothesis someone might even call It a hypothesis exactly because it Hasn't even gone to a theory yet but They have hope a Wishful thing Wishful Thoughts but they've invoked it to Basically say that um you know because The election elections Clause gives the Legislature the power to create the Rules for uh Congressional elections the State legislatures are above the law They cannot be constrained even by their Own state constitutions which after all Are the things that create them and Charter them and they can't be Constrained by state courts even where They're being constrained by state Courts to the end of equality to the end Of you know equal representation uh for All the big theme I think is real Attacks on efforts of of many branches Of our government institutions and our Society to to try to extend equal Equality to those who have been denied It Um and if the court stands the way of That you know I think approval ratings Will plummet still further

Do they care about their approval Ratings though I think they do I know You know you said say something nice About the court so you know I'll I'll Say this The court doesn't have an army That's a nice thing that is a good thing Right they cannot call out the troops They cannot they got a bunch of fences Though boy They got some law clerks too don't Forget about that Yeah they're very very brave those Clerks but but you know that so they Can't you know they can't at the end of The day compel anyone to do anything uh Unless we accept it and so you know and They they know that they know that that Is that and that is an important Important constraint on their power what This court is Con has to be constrained By is legitimacy if they give up on Legitimacy if they don't care about Legitimacy uh you know then they're Unconstrained all together and I don't Think we've seen that yet James what are You noticing over at scotus blog about How Americans are learning and Interacting with all the news that has Come out of the Supreme Court and that Is about to come out of the Supreme Court are they more engaged they're more Active are they more connected to wait a Minute what the hell is going on up

There in DC yeah absolutely we have been Seeing uh you know a ton of Engagement With the Supreme Court I think that Um in particular you know the the Supreme Court has always had really uh Significant consequences on policy and Um and American life but a lot of the Decisions are often like wrapped in Complex Target and are difficult for Ordinary people to understand but I Think the recent decisions are like Everyone understands what the concrete Stakes are right it's you don't have to Be a lawyer to understand that the Constitutional right to abortion doesn't Exist anymore you don't have to be a Lawyer to understand that people now Have more expansive rights to carry Concealed weapons in public so you know The stakes are so clear and people are You know You know because obviously rightfully Concerned about these states and so We're seeing a lot of Engagement not Just you know on skoda splag itself but Also you know what we've really tried to Do is You know explain what the court is doing To new audiences in new formats so for Example like our Tick Tock account uh Has like really taken off like sort of Much to my surprise when my friend and Colleague Katie Barlow also a former Student of Davids by the way

Um when she watched uh that that Tick Tock account uh he heard two ago I was Like kind of skeptical I was like really Is the Supreme Court you know Doctrine On on Tick Tock and actually it's become Really popular and we've seen a lot of Young people Um you know becoming educated on the Court in a way that I don't think they Otherwise would have three things Happened at the Supreme Court today Orders two oral arguments and doj filed Its opposition to Trump in the Mar-A-Lago documents fight here is a Quick explainer of all of the above grab Your Negroni spagliado with Prosecco in It and let's go I think there really is An appetite for you know understanding For civic education in general and Specifically trying to understand what The Supreme Court is is doing so so what You're saying is that we've come a long Way from I'm Just a Bill I'm Just a Bill Sitting on Capitol Hill [Laughter] You know I respect the classics David you can also be proud of all your Students who become law clerks or you Can be proud of the students who come to Conquer the worlds of tick tock and Basic late night cable variety shows you Know there's a lot of a lot of Pride to Be Patty you got to go where the power Is right yes man it's the Bill Bill

Parcells Bill Belichick coaching tree It's just greatness so as we as we as we Bring it home I I have two questions one About optimism one about Wellness Um first optimism with the courts are There any specific cases or anything That makes you particularly hopeful About the future of the Supreme Court You know and also what are some of the Changes or what are some of the things That people could be doing within our Judicial system to make it feel a little More judicious can you say something Nice and if not how do you make it nice I'll start with choose human well you Know Roy I'm hearing a lot of bitching From you about the justices and how you Can't they got to do something in Congress but why don't you quit Complaining and be a Supreme Court Justice yourself huh maybe maybe get in The grind a little bit and do your own Work all right I'll do that I'll get on LegalZoom and start reading some Documents yeah get myself together it All snowballs from there man just Snowballs Um David outside of um helping juven Write jokes on The Daily Show what can People do if anything to change the lack Of accountability not only within the Court but you know what can we do to Help influence Congress as well to try And make the court something that are a

Little bit nicer the answer you know Will probably not be a surprise but it's Vote right it is vote vote like your Rights depend on it that is what will Send the strongest message to the court The court is not the only branch that Can protect people's rights the Legislatures can Governors can Mayors Can Pro you know even prosecutors can so And all of those people are up for Election so you know I the thing that Gives me hope is That again as I referred earlier the History shows that the court when it Gets out of sync with the people it's Legitimacy crumbles and there is a Course correction that course correction Will happen I I believe Um if and only if we who are pissed off We who think the Court's doing the wrong Thing we who care about uh advancing Civil liberties and civil rights for the To for the most disadvantaged in this Country stand up and speak out and what Gives me hope is that we are doing that You know from the from the women's March Uh when when when Trump was inaugurated To the black lives matter uh uh a Protests after George Floyd was killed To the March for our lives on gun Control people are engaged young people Are engaged and fighting for the rights That they believe in and ultimately when You do that in a democracy and you do it

In a sustained way work working with Civil society organizations that's how Change happens so you know the court is Deeply depressing but the political Engagement of so many people around Civil rights and civil liberties today Is deeply hopeful James will go around The horn starting with you to end this Now at The Daily Show we have cereal Well let me explain for a second we have Afforded to us thank you to Viacom and Paramount One of the best Serial Selections in the history of late Night I don't know what they working With at Seth Meyers I don't know what They working with over at Corydon but we Got at least 20 different boxes of Cereal and when it's a long day I have myself a nice 3 P.M bowl of Cereal and that's my cigarette you know When it comes to just being stressed I Just sit and I love Cafe little cafe we Have and that's how I relax James how do You person who runs scotus block full of A lot of bad and stressful news how do You deal with stress how do you what do You do to relax on a regular because I Think that's an important thing for us To leave our listeners with because We're all stressed about this what is Your routine what is your Apple Jacks What is your bowl of Apple Jacks James You know what I wish I had some apple

Juice I went down to the pantry this Morning to have my bowl of cereal and All that was left was like this super Healthy protein Rich uh stuff Bro Relaxing but I'll tell you what I Normally do which is I you know I really Like to sort of just step away from the Supreme Court and I go to the art Museums here in DC then National Gallery The Phillips collection I really love Looking at like you know 20th century Abstract art and it really is a chance To just like get away completely from What's going on in the Supreme Court or So I thought until just a couple days Ago when the Supreme Court heard this Important copyright case about Andy Warhol and so even when I'm looking at Modern Art I can't even Escape Supreme Court jurisprudence So maybe none of us can escape it I Don't know What's what's your what do you do to Relax because I know you have a child There at the house so you know I'm sure You have to leave the house that's what I'll tell you that's how I that's how I Get away from uh from all this worry About the future man I just look at my Kids in the eye and I just look at them And their faces and they sneeze in my Face and give me a cold and then I don't Have to worry about the Supreme Court

Anymore because I'm trying to get over a Cold and that's I think what uh that's My way that's my way all right David lay It on us well you know you know the Answer I watched The Daily Show That's the correct answer this was a This is a test this was a test Well look this has been a great Conversation and I can't thank the three Of you for coming on and going beyond The scenes with us today thank you thank You guys thank you so much Foreign [Music]

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