Justices of the US Supreme Court pose for their official photo at the Supreme Court in Washington, DC on November 30, 2018. (Photo by MANDEL NGAN / AFP)
Keep up with Dahlia Lithwick’s reporting on Slate
Dahlia Lithwick: More and more, we’re seeing the court rubber stamping the Trump agenda and when the courts have become corrupted, I think it’s incumbent on people to say, “This court is not recognizable to me. It’s not doing anything that looks like justice.”
Dahlia Lithwick is a Supreme Court watcher, senior editor at Slate.com, and a contributing editor for Newsweek. She’s been honored as one of the country’s best legal commentators. As the coronavirus stalks America, she talks on the phone with Bill Moyers about the rule of law and politics.
Dahlia Lithwick: Hi there.
Bill Moyers: Greetings, Dahlia. How are you?
Dahlia Lithwick: Hi, how are you? I’m okay.
Bill Moyers: No fever, coughing or sneezing?
Dahlia Lithwick: Coughing and sneezing, but no fever and none of the other alarm bells, so I’m just sitting tight.
Bill Moyers: I appreciate your joining me.
Dahlia Lithwick: Of course.
Bill Moyers: I guess you won’t be hanging out at the Supreme Court anytime soon, right?
Dahlia Lithwick: No. No, they’re not hanging out there either, so. It’s really unprecedented to just scuttle arguments. Justice Ginsberg is 87, so I think it is for the best. But it is really extraordinary times that we are living through.
Bill Moyers: Yeah, I remember something you said, “If ever there was a time for the American legal profession to put down its yellow pads and stand up for the rule of law, it’s today—”
Dahlia Lithwick: Yeah, after Donald Trump was elected, I felt so strongly that lawyers were gonna be the bulwark, that it was clear that he was gonna be assailing the rule of law, and then I really believed that lawyers were going to find lines that couldn’t be crossed.
And that the United States was a country that was built on the proposition that there is no king, and that you have nothing if you don’t have the rule of law. I mean, I think I really believed all that. And who are the gladiators in that fight if not the lawyers?
I did expect that lawyers would be on the front lines. And I watched the day of the travel ban a week after the inauguration — it was the lawyers who ran out to the airports. It was the lawyers who parked themselves at the baggage claims [and] held up signs that said, “I’m just a tax attorney, but I’m here to help you get into the country–” I mean, I really thought that was setting a precedent wherein the lawyers were always gonna be the first ones out. And I’m not sure that materialized the way I expected.
Bill Moyers: If lawyers are failing us, where are we?
Dahlia Lithwick: I think there are so many component pieces of that. I think that you can look at the Mueller Report and the ways in which the findings of that report were distorted by Donald Trump’s own attorney general to imply that nothing had gone wrong.
I think you can look at declarations of emergency at the border last year, where no emergency existed, just to get funding that Congress had already said they were declining to offer. The travel ban itself. One after another, actions taken that really pushed the boundaries of what the executive branch can do.
And just the sort of dispiriting ways in which the Justice Department has doubled down on pressing some of those truly lawless actions, and so we saw Bill Barr at the highest levels of the Justice Department interfere with the Roger Stone sentencing.
This was unprecedented. Nobody had ever seen the president by tweet say, “Maybe we should change the sentence,” and have Bill Barr and very, very senior members of the Justice Department intervene — where line prosecutors had been working on this case for years. And I think we saw on that day, we saw four DOJ (Department of Justice) lawyers walk away from the case, one from the Justice Department, rather than be involved in that prosecution anymore.
But I think it can’t be these tiny little acts of resistance. It really does require the kinda thing that I think we saw in the days following, where we had thousands of prosecutors signing memos and immense numbers of former Justice Department officials saying, “We can’t proceed this way.”
But I think maybe the answer to your question is that so much of the rule of law, as it turns out, was built on soft norms, not on regulations and statutes and constitutional directives. And I think that we all think that this machinery is more robust than it really is. It turns out it’s tissue thin if we don’t fight for it.
Bill Moyers: I used to think that norms were sort of the unwritten Constitution like English procedures and propriety. But that doesn’t seem to hold up anymore.
Dahlia Lithwick: I remember when Merrick Garland was denied a hearing or a vote or even courtesy meetings in the Senate. And I thought, at the time, this is a norm. It is a norm that the president gets to put up a nominee, and that person gets a hearing and a vote. And I think that, time and time and time again in the last few years, I’ve found myself answering these questions about how can this be happening? How can Bill Barr personally intercede in the Roger Stone sentencing?
I think the answer is those were a bunch of norms that were put together post-Watergate. They never had the force of law. It was a set of decisions that this is how the polity would thrive post-Watergate. And I think it’s just such a chilling lesson for all of us that this is a series of gentlemen’s agreements about how we conduct ourselves; it’s not the law.
Bill Moyers: In the meantime, as you’ve written, Trump has weaponized the law in several ways. Talk about that for a moment.
Dahlia Lithwick: Well, I think the most chilling [thing] that we are seeing now is certainly the use of his own Justice Department to go after anybody who’s been disloyal. And also, as we just mentioned, using the Justice Department to exculpate, whether it’s through a lighter sentence for Roger Stone, or using his pardon power to pardon people like Joe Arpaio right at the very beginning.
Trump: I stand by my pardon of Sheriff Joe and I think the people of Arizona who really know him best would agree with me.
Bill Moyers: Arizona Sheriff Joe Arpaio who took a hard-line against immigrants.
Dahlia Lithwick: Who had people in camps dying on his watch, who had this hard-line, anti-immigrant worldview that was so brutal — that there was no question that what he was accused of doing, he had done. And I think that time and time and time again, we’re seeing Donald Trump use the pardon power to say, “There’s really no such thing as white collar crime. There’s no such thing as being too hard on illegal immigrants. There’s no such thing as being — whatever it is that he himself — sometimes — engages in.”
And I think that, in addition to really kind of rejiggering the entire Justice Department so that it seems as though it answers to him personally, I mean, that’s always been his worldview. He wanted an attorney general and he complained about Jeff Sessions, that Jeff Sessions wasn’t loyal, and he wanted Jim Comey to be loyal. Even Don McGahn, his White House counsel, who ended up leaving, was not sufficiently loyal.
And I think he’s really got a notion that he’s like a Nero character — an emperor — and that the law works for him and responds to him. And in so many different configurations, we’ve seen him rescinding DACA by tweet. Making decisions about the dreamers thousands and thousands of dreamers on a whim. Making decisions about “don’t ask, don’t tell” on a whim.
And then we have the entire apparatus of government scurrying to effectuate that, to make it happen for him. But I guess the paradox is not just that he’s weaponized the rule of law, but that the rule of law has rushed to meet him, and to bolster his notions that he is above the law.
Bill Moyers: How do you battle with someone who thinks the law is just a win-or-lose game? And a commodity you can buy and sell? How do you deal with that? How do we fight back?
Dahlia Lithwick: One of the most revelatory books I’ve read this year is by an attorney whose name is Jim Zirin. He has a book out that talks about all the ways in which Donald Trump as president is behaving exactly the way Donald Trump as quote/unquote real estate mogul behaved.
There was a playbook, and it long predates the presidency. This was, believe it or not, the Roy Cohn playbook that goes all the way back to Donald Trump and his dad when they were accused of racist practices in rentals long ago. And it’s a really useful sort of road map to know what the behaviors are. And the behaviors are pretty typical if you are a real estate, very, very wealthy real estate mogul because it’s the same things over and over: It’s sue everybody, chill people from coming forward by terrorizing them. Make sure that your plaintiffs are subject to heinous, horrific abuse, repeated abuse, until they can’t [fight back] anymore.
Bill Moyers: And at the right time, to your advantage, you walk away from the mess you’ve created, declare bankruptcy, and leave the laborers, the contractors, the everyday workers, the creditors to bear the costs, right?
Dahlia Lithwick: Just bury them in litigation, bury them in discovery so that they don’t wanna go forward with the lawsuits. File all sorts of frivolous, frivolous claims, knowing that at some point, you’re just exhausting the other side. I mean, these are just the ways that this person who in his capacity as Donald Trump before he was president just used the levers of the legal system constantly.
He would be sued. He would have people who did work on his properties that he never paid. Trump University, the casino bankruptcies, every one of these lawsuits — he just fought back by hiring armies of lawyers who did what he said. And you’re quite right. The cost of picking up the debris afterwards, whether it’s Trump University or Trump steaks or whatever the detritus is, that’s not on the rich guy. That’s not on his lawyers. They profit either way.
That is exactly how he uses his private attorneys. That’s how he was using Rudy Giuliani, to go and stir up dirt and all sorts of false claims about Joe and Hunter Biden in Ukraine. So he has a very myopic kind of transactional view of lawyers are his — they’re his plumbers. They get the job done.
Bill Moyers: And they’re well paid for it.
Dahlia Lithwick: We’re learning there are many fundamental flaws in the system of capitalism that we have tethered ourselves to. But one of the flaws is that, for a very, very long time, rich men — whether it was Harvey Weinstein or Donald Trump — very, very rich men were able to surround their selves with armies of loyal attorneys who would do whatever they were asked to do. And that’s exactly how he’s trying to use his Justice Department today.
Bill Moyers: When a president takes his playbook from a crooked lawyer like Roy Cohn in the 1970s and uses it to run the United States government today, what are we supposed to do?
Dahlia Lithwick: It’s such a different paradigm because every president, whether or not you agreed with George Bush, used his White House counsel in certain ways, [and] used the Justice Department and his attorney general in certain ways. But [now] we have a president who simply just indefatigably using his lawyers to beat up the weak and to protect his own usually financial interests. And so there’s not a model on a big constitutional scale for what you do when the president wanted a Roy Cohn, got a Roy Cohn in Bill Barr, and is proceeding to just break stuff.
Bill Moyers: Has it occurred to you that the president prefers to govern by chaos, I mean, it detracts journalists from covering other things he’s doing. I’m reaching right now on my desk for a story I read just this morning in CounterPunch. The headline is, “The Supreme Court is set to strike a major blow against social and environmental protections.” It would amount to the evisceration of regulations that protect our health and safety as citizens. Did you know about this? Are you aware of this?
Dahlia Lithwick: Yeah. This is part of a really — and you’re so right. This is happening almost in the dark of night. It’s happening on page A12, if there at all, because page A1 is the chaos. And way, way back, under the fold in the middle of the paper, there is this stealth attack on government agencies and their ability to regulate themselves. And you’re also quite right, it is happening, at the U.S. Supreme Court under our noses. And, what you’re describing is the sort of ascendancy of what was once a kind of fringe theory that Justice Antonin Scalia put forth about agencies and the limits on their power. And this idea of the unitary executive, that every single thing in the executive branch is subordinate to the president.
That was a crackpot idea once upon a time. And you are quite right, it is pushing its way into the very epicenter of several arguments that the Court is hearing this year. And this idea that — it’s called technically the nondelegation doctrine, and it essentially says that we can gut agency authority, for instance the Clean Air Act, the Clean Water Act. We can gut agencies’ ability to have kind of ongoing oversight of problems.
It was once seen as a really fringe idea that is now being used. I think Justice Elena Kagan has described it as it is going to be used to end government as we know it.
Bill Moyers: She’s actually said that the conservative majority will eventually essentially rule that, quote, “Most of the government is unconstitutional.” And it makes me think, and I wonder if it does you, that the right wingers on the Court were put there to enact the Republican platform into law.
Dahlia Lithwick: It’s such a good question and it’s funny because it gets ignored. We get very, very focused, I think, on Neil Gorsuch and Brett Kavanaugh and questions of abortion, and maybe to a lesser degree questions of religious liberty, right? The Hobby Lobby questions about whether religious dissenters can be forced to do things they don’t want to do.
But I think you’re exactly right, that simmering under those issues both Kavanaugh and Gorsuch were quite openly kind of auditioning to be on the Supreme Court with their writings, very explicit writings in the vein that you’re describing. Writings that would seek to do away with the administrative state, do away with the power of government regulatory agencies, whether it’s the (CFPB Consumer Financial Protection Bureau) or the EPA. Efforts to essentially say all of those agencies answer to the president and he can hire and fire at whim. And he can constrain their authority at whim.
That was not a stealth campaign. They were doing that, both justices — Gorsuch and Kavanaugh — were doing that very, very openly, talking about those things. And I think you’re quite right, we got very, very hyper-focused in both of their confirmation hearings on other issues, equally important issues. But I think we looked away from their records on hobbling federal government as we know it. And you’re quite right, I think they were put on the Court to do just that. And we’re seeing, in two short years, they are doing just that.
Bill Moyers: Brett Kavanaugh wrote last year in favor of forbidding Congress from allowing federal agencies, quote, “To exercise regulatory authority over a major policy question of great economic and political importance.” But I thought Congress was supposed to deal with questions like that. What do you make of this?
Dahlia Lithwick: What I make of it is exactly the words you just said, which is this would give the Supreme Court itself authority to say, “Yeah, we just don’t like these regulations. These ones are not good. This agency isn’t right.” And to really eviscerate the regulatory state as we know it. And this goes way beyond the 2020 election. If you have a 5-4 majority on the Court that really believes that using these kinds of doctrines to chip away at agency power, this is going to be kind of sealed into the mix for decades.
Bill Moyers: So you’ve written, Dahlia, about how, in recent years, the Supreme Court has issued ruling after ruling awarding more power to large corporations. This would be the biggest payoff ever to the big businesses, wouldn’t it? I mean, the Republican-controlled Court would have a veto power over all federal regulations?
Dahlia Lithwick: It’s unbelievable. And again, I think it is a pincer when you look at it — twinned with — the issues you’re talking about where, the Chambers of Commerce and big, big corporations have never won the way they’re winning now. Their win rate in the John Roberts court is like nothing we have seen since before the New Deal.
And so I think what you’re seeing is, on the one hand, gutting of unions which this Court has been involved in. Giving huge rights to corporations, whether it’s Citizens United or Hobby Lobby. This slow progression of doing away with workers’ rights and protections for the little guy, protections in all sorts of contexts.
And, at the same time, as you say, the cherry on top is doing away with agency regulations that regulates big businesses. And these big business cases, whether they’re affording huge new rights to businesses, or big wins to businesses that are trying to fight back any attempt to cabin corporate power and union power.
The Clean Air Act, the Clean Water Act, the CFPB — any of these agencies — can be just tossed away at the whim of the Court. Those two things together are a huge, huge boon for business, and they are massively costly, not just for workers, but for the environment, and for women’s rights, and for the rights of the elderly. So many entities that are not afforded protections when the Court is only looking out for corporations.
Bill Moyers: So you wrote not long ago, “There are people living in America who no longer have a president who claims to represent or even care for them.” I think we could amend that to say there are people living in America who no longer have a Supreme Court who claims to represent or even care for them. Would you agree with that?
Dahlia Lithwick: I mean, I fear that for the most part I do. And there’s probably no better metric for that than voting. I mean, we haven’t talked about voting, but I think that we have seen a Supreme Court in a very compressed amount of time not only eviscerate the Voting Rights Act and do away with the idea that there is still racial discrimination in voting, but then turn around and said last year, “We’re also out of the gerrymandering business. Good luck, America, fixing gerrymandering.” But it’s nonjusticiable. The court can’t touch it. And I think —
Bill Moyers: Let me interrupt you there and ask you why do you think the conservatives on the court refuse to kill partisan gerrymandering?
Dahlia Lithwick: Well, I think that for a very, very long time — I mean, quite literally for decades — there was only one person who was going to be the arbiter of whether we were gonna find a constitutional problem with partisan gerrymandering, that was Anthony Kennedy.
And for many years there were four votes on the court that said, “This is not an issue, not a problem.” Four votes on the court that said, “This is an urgent matter. We need to do away with partisan— this is political partisan gerrymandering.”
But I think that we waited and waited for Anthony Kennedy, who kept saying, “One day, my prince will come. A case will come along, and I will find a justiciable standard for what I think is unconstitutional partisan gerrymander.” And he left the court. He left the court and was replaced with Brett Kavanaugh.
So unfortunately the answer to so many of your questions are going to be because there are five now. It’s not the court this term is hearing an abortion case that is the carbon copy of a case they heard in 2016. There is no constitutional answer to that except there are five now.
And this is the same court that doesn’t have a problem with voter purges— unbelievably problematic purges of the voter rolls. And the court’s out of that business, too.
So the cynic in me thinks that the answer to your question is this is a court that is a minority-majority court. Four of the justices were appointed by presidents who did not get the majority of the popular vote. It is confirmed by a minority-majority Senate, that because of malapportionment does not reflect the composition of the electorate.
And so I think we have a minority-majority court bolstered by a minority-majority Senate doing away with free and fair voting. I think it’s as simple as that. And whether that self-interest is to continue to sort of retrench and to amass power to a minority of the country — it seems a cynical answer, but I don’t know that there’s a better one.
Bill Moyers: I saw your recent Slate piece written with Mark Stern about the criticism of the court by a district judge named Lynn Adelman. His piece is being published this week in the Harvard Law and Policy Review. And man, is he tough on the five conservative justices, led by John Roberts. He says bluntly that they are “participating in undermining American democracy.” And you seem to agree with that.
Dahlia Lithwick: This goes back to your very first question, Bill, when you asked about the rule of law and lawyers. And if you had told me five years ago that I would be writing approvingly of a judge who more or less took a brickbat to — to the Roberts Court — I couldn’t have supported it because I am such a long-time institutionalist and I worry so profoundly about attacks on the judiciary.
I really do believe that the judiciary is one of the last remaining protections that we have in a world — the nihilist world that you described earlier. And so, the fact that Judge Adelman wrote that piece essentially saying, “I can’t sit quietly anymore. I’m a sitting judge, and I can’t stand by and pretend that the Roberts Court is a legitimate court.”
A few days after we published that piece, I published a piece with another former judge, James Dannenberg in Hawaii, a state judge who retired from the Supreme Court bar last week with a similarly just absolutely scorching letter to John Roberts about what the Court has become.
And, I published it in part because, like Judge Adelman, Judge Dannenberg is essentially saying, “This is a court that has a thumb on the scale for the wealthy. It has a thumb on the scale for white privileged men. And it is breaking America.”
And for me as a 20-year court watcher and somebody who has really been acutely aware my whole career of how tenuous the court’s power is, this is from the Federalist Papers: It has neither the purse nor the sword. It has no authority.
The American people can walk away and say, “We just don’t accept the legitimacy of the court,” and that’s it for the court. And I’m so solicitous of that. And so attacks on the Court pain me. And yet at the same time, for all the reasons you’ve just described and I have just described, the Roberts Court is not functioning as a Court that looks out for equal justice for all, the words that are emblazoned on the building, [that] looks out for the rights of the most vulnerable Americans.
The Court seems to be rubber stamping not just a sort of big business agenda, not just an anti-LGBT, anti-women, anti-worker agenda. But more and more, we’re seeing the court rubber stamping the Trump agenda.
And no less a person than Sonia Sotomayor wrote an absolutely blistering dissent, saying just that, that the court is just rubber stamping whatever Donald Trump wants. And so it’s a problem because one desperately wants to hold up this institution.
We cannot have rule of law if we don’t have courts. But when the courts have become corrupted, I think it’s incumbent on people like Judge Adelman and Judge Dannenberg, and even reporters like me to say, “This Court is not recognizable to me. It’s not doing anything that looks like justice.”
Bill Moyers: Let me pause for a moment to remind people if they need reminding that during his confirmation hearings John Roberts told the Senate that the role of a Supreme Court justice is a passive role, like a neutral baseball umpire who merely calls the balls and strikes.
Justice John Roberts: Judges are not politicians who can promised to do certain things in exchange for votes. I have no agenda but I do have a commitment, if I am confirmed I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench and I will decide every case based on the record according to the rule of law without fear or favor to the best of my ability and I will remember it’s my job to call balls and strikes and not to pitch or bat.
Bill Moyers: Would you say that’s what he’s done?
Dahlia Lithwick: It was such a brilliant metaphor. It persuaded everybody watching that as an aspirational matter that’s what we want our judges to do. We just want them to call balls and strikes. And it almost doesn’t matter that you and I know that umpires do more than call balls and strikes. They set the strike zone.
They are the most powerful person in the game. There’s no such thing as neutral balls and strikes. There is always judgment affixed to that. And so I think he won the metaphor, and I think he won a lot of confidence and public respect and regard for this idea of a humble minimalist judge who does nothing but sits back and calls ’em like he sees ’em.
And at the same time, I think he has been absolutely part and parcel of a conservative revanchist return to pre-New Deal ideas about the courts, and the wealthy, and the Constitution, and the power of the president. And so he’s certainly free to call it humble minimalism when he does it, but you are seeing a Supreme Court at this moment that is willy-nilly reversing precedent.
We’ve seen several important precedents reversed in the last few years. We’re seeing a Supreme Court that is happy to reach far beyond the constructs of what neutral originalism — all the principles that conservatives are supposed to apply when it comes to doing away with something like the Voting Rights Act.
So this is not calling balls and strikes. This is, I hate to say it, but activism. It’s the word that the sort of legal right used to tar the legal left with. It is activism if you do it on the right or the left, if you’re reaching out way beyond the scope of what you should be doing as a judge.
And we’ve seen that time and time again this term. And, as I said, Bill Barr’s Justice Department has really played a part in this by helping to pushing cases, leapfrogging them to the Supreme Court before they’re heard in intermediate courts, insisting that things are exigent and urgent and need to be decided immediately. So I think that both the kind of five conservative justices (including John Roberts) and Bill Barr’s DOJ have had a huge role in creating a very activist Supreme Court that time and time again, has done anything but balls and strikes.
Bill Moyers: Which brings me back to the letter from the retired district judge in Hawaii who recently wrote Chief Justice Roberts. He actually said to the chief justice that, “You’re allowing the court to become an ‘errand boy’ for an administration that has little respect for the rule of law.”
That seems to me frankly as a journalistic observer to apply both to John Roberts and to William Barr. The judge even accused the conservative majority of cynically undermining the basic freedoms by hypocritically weaponizing free speech and religious liberty.
And he ended up saying, to a point you made, “There is nothing conservative about this trend. This is radical legal activism at its worst.” Pretty brutal language between the judges is taking place now. Clarence Thomas accused a lower court judge of being a conspiracy theorist and a partisan hack.
And then you have letters like this, in which the Hawaiian judge says, “I believe that the court majority under your leadership has become little more than a result-oriented extension of the right wing of the Republican Party.” And my response to that, Dahlia, is just wow. Wow.
Dahlia Lithwick: There was a time when people drove around with bumper stickers that said, “Impeach Earl Warren.” And that wasn’t so long ago. I mean, I’m sure some of your listeners don’t remember. But it wasn’t that long ago.
And each of the justices, whether it’s Justice Breyer, Justice Kagan, Sotomayor, Justice Kennedy, Justice Scalia talked so passionately about how terrifying that is, how terrifying it is when the public loses confidence in the court. And, not to make much of a fuss about it, but this is the longest-standing constitutional democracy for a reason.
And part of that reason is that Americans look upon their court as something kind of oracular and something almost holy. And the court relies on that trust. I mean, this is a two-way street. If the court loses public confidence and public trust there’s a famous story about the Trail of Tears case where the president famously said, “The chief justice has issued his decision. Now, let him enforce it.”
There was a time when the court had no public confidence, no public authority. And the court would make decisions, and presidents would ignore them. And that, again, wasn’t that long ago. And so this is a hard-fought, centuries-long battle to have an institution that cannot protect itself.
If Congress wanted to shut the lights and take out the toilets in the Supreme Court, they could. And the court is so, so aware of that. And so when judges like Judge Dannenberg, like Sonia Sotomayor start going after other judges, and when Clarence Thomas goes after Jesse Furman in the Census case and accuses him of being a conspiracy theorist.
It is absolutely watching this creature eat itself alive. It is a creature that relies on public trust, that is devouring that trust. I hope you’re hearing the sadness and reluctance in my voice when I say without courts, we don’t do well in this country.
If we don’t have robust judicial protection of the guardrails of rule of law, it’s just words. And so watching the court kind of corrupting itself to the point that other judges are taking out a hatchet and publicly flaying the court, it hurts everyone. It really hurts all of us who believe that the rule of law needs to be enforced by an independent judiciary. And that’s sort of the heartbreak here, is that this doesn’t redound to anyone’s benefit.
Bill Moyers: Is there a double standard at work here? I mean, I tremble when I hear liberal judges say harsh things about their peers. But the record would show that conservative judges have gotten away with some brutal language about liberals and the right-wing media have cheered them on.
But when liberal justices do the same thing about conservatives, they’re put down and condemned by the same right-wing media. So delegitimizing the opposition, for example, when judges rule against Trump to say they’re biased and when conservative judges do it that they’re standing proud for their principles. Is there a double standard at work here?
Dahlia Lithwick: Yeah, I think you probably just hit on the existential problem of our time because it transcends judges, right? It goes to the Justice Department. It goes to what do we do about the military? What do we do about these amazing State Department heroes like Alexander Vindman, who come forward?
If a Fiona Hill comes forward or an Alexander Vindman, they are clobbered as being part of the deep state and they’re not patriots. And there isn’t the commensurate sort of outrage on the other side.
And I think you’re very right when you point out that Donald Trump over the last few years has happily said that one judge on the 9th Circuit was a quote/unquote “Obama judge.” You’ll remember he started his presidency by going after Judge Curiel as a “Mexican judge” who was too biased to sit fairly on the Trump University lawsuit.
In the last few weeks he’s gone after Justices Sotomayor and Justice Ginsburg. I mean, he does this regularly. And we have silence. Silence across the boards.
And then, you’re quite right. If a judge like Adelman or Dannenberg comes forward and says “This is wrong. This is not a justice system I recognize,” they are absolutely pilloried from all sides for delegitimizing the institution. And so I think that it’s the same asymmetry that has in so many contexts gotten us into this situation and in so many contexts.
It’s hard to say candidly that the answer is, “We should beat up on that side more. We should go after Clarence Thomas more.” That can’t be the right answer. But descriptively, I completely concede that one side sticks its neck out and sort of—recedes without any support.
The other side, it’s just a daily onslaught — attacking liberal judges and liberal decisions. And I guess it’s cold comfort, but I will say at least in a judicial context this asymmetry has been going on for decades. I mean, there has always been a very, very concerted machinery to take out any progressive judge or legal thinker who is at all controversial. And there’s just no commensurate organization or force or ideology, going the other way.
Bill Moyers: Dahlia, conservatives have long understood that elections every two and four years are as much about the courts as about the legislature and the executive branch. And they’ve made the appointment of judges, well, quite frankly perhaps the chief issue in their campaigns. That’s been a pretty smart strategy, hasn’t it?
Dahlia Lithwick: I’m glad you asked about this, because since the Meese revolution, there has been a concerted effort—
Bill Moyers: Ed Meese was the attorney general, for Ronald Reagan.
Dahlia Lithwick: This is a decades-long, very organized, very focused, very well-funded effort to win the courts and with an understanding that if you control the courts, almost nothing else mattered.
And what we’ve seen, if I can go back to the 2016 election, we went into that election with one vacancy. Antonin Scalia had died the February before the election. Mitch McConnell had held up the Merrick Garland confirmation, and so there was a vacancy on the court.
There was an 83-year-old, an 80-year-old, and a 79-year-old on the court that year. And with no disrespect intended to octogenarians, it might have been a good time for progressives to look at the court and say, “Holy cow. This is the most important issue going into this election.”
Donald Trump campaigned on the fact that he was going to change the court, only appoint people who would overturn Roe. There were people like Ted Cruz and John McCain who went into that election in November of 2016 pledging in their Senate races that if Hillary Clinton won in 2016 they would hold the Scalia seat open for four more years or eight more years. No one was going to be seated on their watch.
And on the other side, we had Democrats running for the Senate who had had a seat stolen under their noses and said nothing in their Senate races. And by a two-to-one margin, voters who prioritized the Supreme Court broke for Donald Trump. So that was entirely — sort of choice that voters made in 2016 that whatever their issues were, the court was not amongst them.
And as a consequence, we saw not just the two Supreme Court seats that Donald Trump has been able to fill with Gorsuch and with Kavanaugh. But we’ve now seen 191 federal judges seated in three years. That outpaces Obama’s record for seating judges in eight years. It is unprecedented for anybody to pack the courts the way Donald Trump has done it. And it is for exactly the reason you started with. It is because, for whatever reason, conservatives laser focus on the courts and progressives rank it number eight, nine, 10, or 11 in their priorities.
Bill Moyers: Dahlia, I’m only halfway through my questions. A couple of years ago, I had the good fortune to hear you make a remarkable speech on religion and the courts at Chautauqua, the summer institute in Upstate New York. And I wonder if you’d come back in a few days and let’s have a second episode of this discussion to talk about faith, politics, and the court, William Barr, and freedom of religion. Would you do that in a few days?
Dahlia Lithwick: I would be honored. Thank you.
Bill Moyers: Dahlia Lithwick, thank you very much for joining us. I’ll see you in a few days.
Dahlia Lithwick: Thank you. Take care.
Thanks for listening to Moyers on Democracy. More conversation with Dahlia about faith, politics and the court on an upcoming edition. Until then, check out Billmoyers.com.
[This interview was edited for clarity on March 23, 2020.]
© 2020 Schumann Media Center, Inc.
