How the Supreme Court could shape the 2024 election

Dahlia Lithwick has covered the Supreme Court since the landmark Bush v. Gore decision in 2000. In that time, she's seen a sea change in the court itself, as well as the way that journalists cover it. We discuss those trends in this episode, as well as how former President Trump's legal team has changed since the 2020 election.

Lithwick is the host of Amicus, Slate’s podcast about the law and the Supreme Court, and author of "Lady Justice: Women, the Law, and the Battle to Save America." She has held visiting faculty positions at the University of Georgia Law School, the University of Virginia School of Law, and the Hebrew University Law School in Jerusalem.

Referenced in this episode:

How Chief Justice Roberts shaped Trump's Supreme Court winning streak - New York Times

"Stop the Seal" 2.0 is here and it's scarily sophisticated - Slate

We helped John Roberts construct his image as a centrist. We were so wrong. - Slate

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Chris Beem
From the McCourtney Institute for Democracy at Penn State University. I'm Chris Beem.

Candis Watts Smith 
I'm Candis Watts Smith.

Jenna Spinelle
I'm Jenna Spinelle, and welcome to Democracy Works this week, we are going to take a bit of a deep dive into the Supreme Court with Dahlia Lithwick, who is the Senior Legal Correspondent at Slate and the host of Slate's podcast Amicus, which we will mention several times throughout the interview. If you enjoy this podcast, I think you'll probably like Amicus too, so you can check that out through slate. But this episode, this is the last one that we'll put out before the election, and in typical democracy works fashion. We're not going to talk about necessarily the horse race of who's up or down in the polls and that kind of thing. But instead, we're going to take a step back and think about how the Supreme Court has shaped and perhaps will continue to shape the election. What kinds of election cases may or may not end up on the court's docket before the end of this year? Those kinds of things. And I think it's interesting to have Dahlia here, both as as a journalist and also as somewhat of a legal scholar herself, and frankly, somebody who's been doing this since John Roberts joined the court, since Bush v Gore, so over 20 years now, she's been following and reporting on what's happened at the Supreme Court. 

Chris Beem
So, I mean, I think you can only push the election off so far, and the more you kind of recognize or the more you reflect on what's happened in the last term, I think that becomes even more difficult. And you know, I'm committed to the virtue of giving my opponents the benefit of the doubt, but I'm find it very difficult to do that in this case. So you know, if I if I go too far, you guys reel me in. But this is a little different from from our normal stick, we normally talk to, you know, policy experts who are talking about some initiative, or we talk about, talk to some scholar who's written a book that is, you know, that is connected to issues, but is kind of a step back. But this is one journalist, and, you know, we should say a very well regarded and well established journalist talking about one institution of government right now? 

Candis Watts Smith 
I agree. One of the things I have to say, and maybe to just kind of put a bug in our listeners ear, is to listen for how introspective Dahlia is with you know respect to her profession and how journalism and journalists have treated the courts over the years, and how that's changed and also needed to change, and also for her own role in shaping the way her readers might also understand the Supreme Court in particular justices, too. And, you know, as I was listening to Dahlia, I was thinking about something that my husband said just a little while ago, and he's like, the SCOTUS is really political, like, really and he, you know, he knew that, but he said he just hadn't really connected the dots. And as a political scientist like I knew that already, you know, intellectually from you know, reading how many ever journal articles that are behind pay walls. And so it would make sense that I would be more intimate, intimately aware of those dynamics in the way that someone who's not reading the American Political Science Review or something you know, wouldn't also, I think part of that disconnect is what Dahlia highlights, right, which is, it's only really rather recently that journalists, not just those like on the court beat like Nina Totenberg, right? I think it's someone who we think of immediately, but also investigative journalists who have started delving in to look, you know, closer, not just at the cases and the decisions, but also the justices, connections with, you know, money, self interested People, or the one or two degree separation between themselves and fringe political organizations. Or, you know, how do even some cases even get on the docket and others don't, so on and so forth? So, you know, we've had scholars like Amanda Hollis, bruscky and also Rachel Sheldon, who have been talking about all of the ways in which there is a clear ideological leaning of the justices and Dahlia kind of helps to show how journalists now are doing that front facing work of showing the inner workings and mechanics that connects the politics in. And the decisions that we see out of the Supreme Court,

Chris Beem
I think you lay out the kind of two broad paradigms very well. And what really infuriates me is that you have a on the one hand, all these ethical questions that have been raised all these completely, you know, problematic situations that that many of these justices have found themselves in, and then you have, on top of that, these maximalist decisions that everybody that was confirmed, I think, without exception, spoke to the value of precedent. And then when they got in, they said, Well, screw that. We're going to do what we want, and we're going to push it as far as we can. And then, after all that, they have the gall to claim that they're just calling balls and strikes. I mean, it is just astonishing to me that that they think that that is a viable claim, and I find it just infuriating. It's like we're not supposed to pay attention, don't you know, don't look at the man behind the curtain.

Candis Watts Smith 
I think that there is a way in which we've seen Supreme Court justices say and act like what is happening is normal, but we also know that approval ratings of the Supreme Court are declining, and if we might say that that's a measure of legitimacy in the court, then we have a problem. And I guess on some level, the question is, how do we how should we respond as a group of people who want better and want more? I think that one of the first steps is the work of journalists like Dahlia and Adam Liptak and others who are really just doing the work of illuminating the dynamics that have really been under the curtain, you know, up until rather recently. And so, you know, I think having a really good understanding of that is a good first step. And then the second step is to, you know, do democracy? 

Jenna Spinelle
And I think we certainly talk in the interview about some of those public opinion surveys about support for the court and how the justices perceive that, which I think Dahlia has a very interesting take on that as well. So lots to come here. Let's go now to the conversation with Dahlia Lithwick. 

Jenna Spinelle
Dahlia Lithwick, welcome to Democracy Works. Thanks for joining us today. 

Dahlia Lithwick
Oh, it's so good to be with you. Thank you.

Jenna Spinelle
So there is a lot we can talk about when it comes to the Supreme Court, which has been your beat for some time now. But I want to start by talking about what it's like to cover the court. I think we can all conjure images of the White House press corps or the gaggle of reporters following members of Congress around. It strikes me the court is very different in that regard, both in terms of how it shares information with the public and maybe also the availability of people to be sources. There's not, you know, AIDS upon aids upon aids, and staffers and under secretaries of this, that or the other, who can serve as sources for you. So just talk a bit about what it's like to cover the court who are some of the folks that you work with as sources and those kind of things.

Dahlia Lithwick
Yeah. I mean, it's such a great question, you almost need to reverse engineer it, because I think we've seen a sea change at the court in the last couple of years. And so if we were having this conversation even, I want to say, like, even four or five years ago, before the Dobbs League, I would say, Look, this is a press corps that, as you said, gets no access. You know, you can spend your whole life sucking up to a justice and maybe getting invited into their chambers, at which point they'll like, show you their, you know, carpet and like their curtains and like a piece of art, and send you on your way. Right? So there was no point in trying to get access to the justices, and there was really no point in trying to talk to their clerks. I mean, their clerks were after the book the brethren came out, which was the sort of juicy tell all, you know, trashing of the Burger Court, where all the justices cooperated, they really lowered the boom. No justices were talking to the press. No clerks were talking to the press. So there was nothing on this beat. You know, you could kind of root through the dumpsters all you wanted, there was nothing to be found, and as a consequence, and I think we can talk about which way the causation worked, but mostly, I would say the folks on the Supreme Court, press court, which is a very small, incredibly smart group of people who many of whom had been doing. This all their lives, or most of their lives. So it's not like other beats where, you know, last week you were like the school board reporter, and next week you're the weather man, like you people stay on this beat forever. But I think that there was a tendency, instead of kind of covering the juicy details of the court, which a, you couldn't get and B, there weren't like, a lot of juicy details, we just covered the cases, right? And so for most of my career, I started around the time of Bush v Gore, the entire story was, these are the, you know, and it's apt that we're speaking in October, right? Because, like, these are the 12 cases to watch this year, and this is how it's gonna go. And then we covered oral arguments of those cases. And then in June, we covered the decisions in those cases. And I have joked at times, we cover the court as though the law is alive and the justices are dead, right? They're justices like, we're not interested, but we're super interested in what happened, you know, to the Commerce Clause today, we're super interested in what happened to the First Amendment. And that made it a kind of great beat, because as long as you read the briefs and you went to arguments and you described what the big idea was, in any case, it was a very easy beat to cover, and that's what we did. We took notes on oral argument, we described opinions, and of course, everything blows up when the Dobbs leaks happens, because clearly there's someone leaking. And you know, I'm mindful of the fact that just a few weeks ago, Jody Cantor and Adam Liptak at the New York Times got the kind of leak that was unimaginable on my beat just a few years ago. So maybe the last piece of my answer to your question is it's something has changed, and it's not an accident that the people who are covering the justices as though they are alive, as though, you know, trips that are not reported matter, as though where money comes from to put a case in front of the court doesn't, you know, actually might begin to matter, as if the person who's putting money into the court to get the case before The court takes a justice on a trip might really matter. All of those things are now being unearthed, not really by the Supreme Court press corps, but by investigative reporters at ProPublica, at politico, by Jodi Kantor at the New York Times. So I think I want to tell you that we were covering almost like the outer edges of this court beat for a really long time, and what has rushed into the void tends to be investigative reporters who can get flight manifests for, you know, planes that took justices on trips that I think most of us, while we were covering the doctrine really thought wasn't our beat.

Jenna Spinelle
Yeah, yeah. And I'm glad you brought up the leaking and some of those changes in reporting. Let's talk about that a little bit more. I mean, what does it say to you about the health of the court when there are leaks happening? And I guess maybe, how surprised were you when the Dobbs leak happen and some of the things that have happened subsequently, as someone who has been on this beat for a long time,

Dahlia Lithwick
I mean, it's a great question. I was hugely surprised by the Dobbs leak only because, again, I have been on this beat for about 25 years, and there's nothing of this sort. We had a little bit of leaking after Bush v Gore, we had a tiny bit of sort of very, very orthogonal leaking about how the vote went in the Affordable Care Act, the Obamacare case, but nothing like, here's the entire draft opinion, and that's astonishing. And as I said, I think almost more consequential was the leak to the New York Times, in which, not only did we get all of that, but we got confidential memos that the justices were sitting around that nobody would have seen, confidential when they are in conference. It is the nine of them in conference. There's not clerk sitting with them when material from that conference leaks about who's writing an opinion and how the opinion got taken away from Justice Alito in the Fisher case last year. I mean, this is the order of magnitude beyond what we saw in Dobbs. And so it's hard, if you're not a lay person, to understand how just thermonuclear it is. And I think to your sort of underlying question, what does that tell us about the health of the institution? I think that someone on the inside is freaking out, and I'm not going to speculate about who the leakers are. I don't think we know. We may not know, in part, because the court failed to properly investigate the Dobbs league. But I think it is fair to say that the court is now under so much pressure, and not just the pressure I know we're going to talk about this in a second of public scrutiny and polling and public confidence and court reform is all the stuff that's happening outside the house. The pressure is coming from inside. Of the house, and to me, that's the tell that something is really broken, because these are not leaks that are coming because somebody left a document on a photocopier, if photocopiers still exist in this world. But this is not that kind of leak. This is the leak of somebody essentially saying we're on fire in here. And I don't know how to talk to my colleagues about it. This is like game changing in terms of the lack of health in the institution. And I think, and I know this is the thing that everybody is worried about, that the story we told about the Chief Justice, the one who defected in the Affordable Care Act right and voted to uphold Obamacare, the one who signed on with the dissenters in Dobbs, the one who would not gut the Voting Rights Act that Chief Justice, John Roberts, that we told the story about, as an institutionalist, as a centrist, as A kind of Anthony Kennedy, William Rehnquist, Country Club Republican who, whatever else he was, first and foremost, put the prestige of the court first. The story that I'm worried about is that story, because I feel as though that Chief Justice John Roberts either left the building last term or was never in the building, and we were peddling kind of a piece of science fiction.

Jenna Spinelle
And that's the subject of a recent piece you wrote with Mark Joseph stern that we'll link to. The headline is, we helped John Roberts construct his image at a centrist we were so wrong. And even as recently as a year ago, I think you were still sort of on this train of John Roberts as the institutionalist, as a centrist. What was it the decisions in this most recent term, the January 6 case, and the immunity and some of these things that really turned it for you? Or were there other moments that sort of led to that? 

Dahlia Lithwick
I mean, I think right up until the immunity decision came down, I was one of the, I feel like, pretty careful, close court watchers, saying things like, okay, they're going to split the difference. They're going to, you know, Trump's going to win on the case Anderson earlier in the year that would have taken Trump off the Colorado ballot, right as an insurrectionist. Well, Trump's going to win that one, but he's going to lose on immunity. I thought, you know, because this has been John Roberts mo for a very long time, is, you know, middle of the road, baby steps. Don't, do you know, you don't what we call in baseball, small ball. You don't need a home run. You can just keep getting bunch of singles and you will get what you want. And that is how John Roberts, that I understood, and whose doctrine I have watched carefully, that is how he operated. He would just do it small, do it over many, many years, as imperceptibly as possible, and try to kind of bring the center of the court on side. Every one of the cases you've described, including, I think I would add to the pile, Loper bright right? The yes court case that gets rid of Chevron deference is the opposite of that in every particular right? It's not just, you know, swing for the fences. It's like burn down the entire field. It's, let's go maximalist. Let's take this vastly further than we wanted to go. Right Amy Coney Barrett offered a centrist version of how to do the immunity case. No, right there in every one of the cases, he took the biggest swing he could take and and this was the language again, in that New York Times piece froze out the people that he might have been interested in getting on side. So he's worked, you know, for years and years to find some kind of center, and whether it was picking off, you know, initially, it would have been Justice Stephen Breyer, like Elena Kagan, Anthony Kennedy, Brett Kavanaugh, there was a center at the court, and I think it's, we just have to be candid in looking at all of those big cases last year, the center is not a center. There is no center at the court. And there may be a swing justice, and it's probably Amy Coney Barrett right now that's not the same as a center, and maybe more pointedly, and I can end here, but the optics of it didn't seem to bother him either. And what was surprising, again, I'm sorry I'm harping on that New York Times leak. He genuinely believed, at least according to the leak, that if he wrote a maximalist opinion utterly immunizing the president for all but like a smattering of behaviors that fomented the January 6 insurrection. He thought if he wrote it in big words and using like, separation of powers language, the American public would be like, Oh, okay. Now I'm persuaded we should, you know, have SEAL Team Six ordered in to execute, you know, presidential rivals. And to me, I think the tone. Deafness, the sense that I actually have no idea who the American people are, because I don't care what they think, is singularly unlike the John Roberts I thought I understood.

Jenna Spinelle
And the idea that the American public, there is much less of a center among the populace as a whole, just like there's, you know, less, much less than, if not, a non existent center in the court. So they're sort of on similar trajectories there. And I wonder if, you know, taking, if we take that Roberts is not paying attention to public opinion, public sentiment in that way, although it seems sort of wild if you think about the Justice Alito stuff that the protests are showing up at Brett Kavanaugh his house like you know, the level that your head has to be buried in the sand there seems pretty big on some level, but I wonder if he is paying attention to the favorability rating of the court. You know, pew, over the summer, found that more people have an unfavorable view of the court than compared to a favorable view. Now it's, I think it's 5147 so it's not huge, but I wonder if something like that might get through. And if so, if it might maybe change things, or if, as you say, it's just he's kind of on this path we're seeing the true colors and consequences be damned. 

Dahlia Lithwick
Yeah, it's such an interesting again. You know, you raised this in your last question. And if we were talking a year ago, one of the other things I would have said about John Roberts, you know, blue eyed, twinkly centrist, is that he was aware that an election is coming up and that there is a better than even chance. I would say there is a significant chance that this Court will decide the election, and that that alone would have led the court to moderate some even if you wanted to get rid of Chevron, even if you wanted to give the president near blanket immunity, even if you wanted to do all the things that they did to administrative law and to environmental law and to women's reproductive rights last term, even if you wanted to do all those things, maybe You don't do it in election year. And that, also, to me, is proof that I think he just doesn't care. And I think it's interesting that the two examples, you know, you thought about as maybe this is the kind of stuff that would worry John Roberts are, you know, justice, alitos behavior check, and protesters going to justice Kavanaugh home and frightening his children, right? Because I think you're right, those are both examples of a sort of lawlessness, and I would say sort of vigilantes view of the world. And what's interesting to me is more and more I see John Roberts as seeing the former conduct justice alitos wife flying an upside down flag that was flown by insurrectionists and other people who don't believe in the rule of law justice alitos wife flying this appeal to heaven flag, which is, you know, emblematic of a really fringe Christian Right view of the rule of law. That those things would matter to him. I think he thinks those things are trivial. But to your second hypo I think he cares a lot about protesters at Justice Kavanaugh house. I think he cares a lot about protesters at the Supreme Court after Dobbs. Don't forget, they put up fencing after Dobbs to keep the protesters away. So what do we do when the Chief Justice sees those two data points and thinks one is legitimate and one isn't. And that's, I think the thing that has been in some ways, most alarming to me, is that the Chief Justice's rhetoric seems to take very, very seriously some kinds of opposition to judicial behavior, some places where the public confidence in the judiciary has eroded. Those are serious and the actual actors who, in my view, could have easily remedied this by saying, You know what, let's just have an ethics code like every other article three judge in the country. Let's just enforce this against ourselves. And then when that happens, you know, we can take responsibility for public approbation and willingness to accede to the court. He sees that as an attack on the court. So I think it's that scene between those two examples that is the thing that tells me again, that the John Roberts that I thought was fairly clear eyed about the fact that any lack of confidence in the court is bad for the court. And those were the shoes that he followed in that was his mentor, Justice Rehnquist felt that way. Put the court first. It has no army, it has no treasury. The court lives and dies on public approval. I thought that that was. John Roberts credo, if John Roberts is, in fact, now part of the kind of commentariat saying Nobody's allowed to criticize the court because they're undermining the legitimacy of the court. That's just deeply scary. Because, again, that is, in my sense, ceding the path to an election that is contested, decided by the court, and in which the public refuses to exceed

Jenna Spinelle
Yeah, and let's pick up on some of the circumstances about what might come down the pike for the court this fall. You know, I think it's often said that none of the election cases from 2020 made it to the court, right? So that was seen as the system holding. But you said recently that the Trump team has done a lot of learning over the past four years. We you're not going to see well, maybe we'll see Rudy Giuliani and Jenna Ellis again, but if we see them again, they're going to be much more prepared, let's say, than they were four years ago. So can you just talk about how those circumstances have changed and what some of that learning from the Trump team has been right? 

Dahlia Lithwick
I think the most important thing is when we say that the system held in 2020 and that the you know, Donald Trump lost all 63 plus cases, but one that he brought trying to set aside the election results. That's because it was like the bad news bears of lawyers, right? As you said, it's Jenna Ellis. It's Rudy Giuliani in front of, like, four seasons landscaping, making up law on the fly and trying to breathe life into a whole bunch of theories, including the independent state legislature theory, a bunch of ideas that were so bonkers that even John Eastman, who was kind of the architect of those ideas, just blurted out this would totally lose at the Supreme Court. Nobody thinks this is a thing. And in the intervening four years as you say, they now have shiny shoe, you know, fancy lawyers with degrees from good schools who have been seating the ground in ways that I think are imperceptible to sort of the lay listener, and whether it's pushing out that independent state legislature theory Trying to get it to be a thing, and it was sort of interesting to four of the nine justices even going into that 2020, election. It didn't come in a posture that the court could rule on it. But we certainly know that there are, I would say, five justices who are awfully interested in the idea that state courts have no authority to pass judgment on state elections, and we've had a case that's come to the Supreme Court that has not resolved definitively that question. And so part of the issue is, will it be hanging chads? Will it be, you know, mail in ballots that's being litigated around the country? Will it be any number of efforts to suppress the vote. You know, there's a concerted effort. Donald Trump has basically said, you know, the voting should be counted the day of everything else is illegitimate. And there are actual cases that are bubbling through the system that are resting on that claim. And so while I don't know what the case will be, and again, none of us knew until the 2020 election that it was going to be how they were counting ballots, right in Pennsylvania. But what we can say is this is not going to be a clown car with a bunch of silly lawyers coming out and making fanciful claims. This will be litigation that started months in advance, not the day of the election, and was brought in front of many, many judges, many of whom are sympathetic right Donald Trump appointees, who still think that the 2020, election was stolen. And as you know, this is where we started, but it's where I think the answer to this question sort of inexorably brings us. It will come to a US Supreme Court that has decided in a series of Donald Trump related cases, in every one, that Trumpist arguments, that these kind of scary maximalist Maga arguments win. And so I think to be sort of sanguine that well the system held last time a bunch of Trump Trump judges threw out those claims, is to fail to sort of imagine how that those claims have metastasized and how well they have been developed in the courts.

Jenna Spinelle
Yeah, I want to close by talking about the path forward. You had a fantastic episode with Ari Bierman recently where you sort of laid out some of the different prospects for reforming the court and made the case that you know, should Democrats have legislative control after the election, they really need to make court reform a priority. But it also seems like there's kind of an order of operations that needs to happen here. So walk us through, you know, I guess in your best case scenario, what does that look like? And then maybe, what do you think is more realistic to actually move forward?

Dahlia Lithwick
One of the reasons Ari Berman is one of my favorite Amicus guests is he's encyclopedic when he thinks about democracy, structural, big, boring, structural democracy reform. And so you're exactly right. I think that we tend to fall into this kind of roller coaster horse racing. You know, we're going to fight about Donald versus Kamala, we're going to fight about Vance versus walls. And then after Election Day, we can all, like, go back to sleep. And I think what Ari and the PN, people like you and anybody who's thinking about sustainable, structural democracy reform is well aware that in many, many ways, American constitutional democracy was crafted to suppress democracy, and whether it's the Electoral College, right? And how completely distortive that is. The way the Senate works, totally distortive, right? The filibuster utterly destroy every one of those things exists to suppress democracy. As you and I understand that, and so I think the first piece of this is not just the court. Probably Ari would say it's statehood for you know, DC and Puerto Rico, and, you know, it's doing away with the electoral college. It's doing away with, you know, the way we currently, you know, gerrymander districts, right? So it's all of that stuff that we tell ourselves, like makes us free and makes our vote count. And in fact, what it's doing is elevating the very same people that the founders sought to elevate in the first it's working, yay. We're still doing it right. That's the first chunk of it. And then the second part of it is, what do we do about the court, which again exists in some ways, to privilege minoritarian interests, and we like that, right? Because we can't have everything be decided by majority rule. And the way we got Brown versus Board, and the way we got Roe v Wade, and we the way we got Obergefell marriage equality was a court that was privileging minority interest. But we now have a court, and this is the most important thing I'm going to say, in which five of the six conservatives seated on the court, and Ari said this on my show, were seated by presidents who lost the majority vote and then they were affirmed by a Senate that represents vastly less than the majority of the country, right? So that California has two votes and South Dakota has two votes. So what we would need to do is ask ourselves not just why we have a minority rule court, that's fine, that's structural, but why we have a minority rule court that is fighting to privilege minority rule system even the FA in the face of efforts at democracy reform. And that's the whole line of cases that sets aside the Voting Rights Act. That's Rucho, right? That's all the cases that say we're going to suppress the vote because we're the Supreme Court. And so what I want people to ask themselves is not this question of, how do we, you know, take away the courts, you know, God given oracular authority, but do we really want a court that is itself entirely a product of the framers kind of debased ideas of protecting, you know, privileged white men, and we're going to let that court take away the right to vote for everyone else. And I don't know if I've said that clearly enough, but I really think it's important to understand this is not a court that we have ever seen in history. This isn't even the FDR busting court of you know the New Deal. This is a court that represents very money, very self interested minority that is trying to break democracy. And so then the last chunk of your question is, what do we do about the court, not just about fixing the filibuster and fixing gerrymandering and fixing the electoral college. What do we what the court itself and there, the answer is, like you say, there's a pull down menu, and at the extreme end, there's, you know, adding four seats, right? Or what we call court packing, which, by the way, is entirely plausible, because we added seats every time we added a circuit, until we stopped doing that, right? So technically, we should have four more seats. There's a lot of conversation about term limits. And by the way, term limits polls extremely well. Unlike court packing, the American public loves it. And I think that the work we have to do is sort of help listeners and readers understand that it's not enough to say I hate the decision in Dobbs, or I hate the decision, you know, in Bruen, that was the gun case that gave us bump stocks last year. And I'm mad. I think that it's that second step, which is, and I'm going to keep this. Doesn't matter who wins the presidency. I'm going to keep getting those decisions, unless we think about the court. Mm. And it's that second piece of connective tissue that I think it sort of feels a little like, yeah, that's a big lift, but it's also like, very good, smart people are working on all of these things, and I think it's doable. Like, this is not unicorns and rainbows. There are ways to implement these democracy fixes. And my sort of very upbeat landing on this is like, imagine if we actually tried democracy. It might be awesome, but we haven't yet really tried, and so we haven't yet found out. And if people, I think, could kind of get out from under the boulder of, I hate the court, but there's nothing I can do, which is, I think where we live, most of us, I think that there is stuff we could do, and then I think we could have a court that really was part of a process of perfecting America in a way that we've actually not ever really even tried.

Jenna Spinelle
Well, Dahlia, I know that you will do your very best to help keep us all informed about what's happening in the court, but also to these other connections, these bigger ties to democracy. So I hope folks will listen to your podcast, Amicus and follow your work at Slate. We will link to both of those in the show notes, and thank you so much for joining us today.

Dahlia Lithwick
It's been super fun being with you. Thank you so much for having me

Chris Beem
Well as promised, that was a really good interview. You know, Dahlia and a lot of other people saw Roberts as an institutionalist, as a conservative, you know, small c, which means he was inclined to take small steps, rather than big, you know, big, dramatic steps. In terms of the law, I think dollar calls it small ball where, you know, you get a bunch of singles together and you still get a home run, but it's not as dramatic. And she acknowledges that she was part of that kind of narrative. And the the other, the other big decision that came down that really kind of led people to think that was correct was his fifth vote that saved Obamacare. And so that was very early in his tenure, and it had the effect of kind of saying, Oh, all right, well, this is what we're kind of in for. But you know, not too long after that was Shelby and its impact on Voting Rights Act and Candice, you said something about the distinction between those two that I think was pretty operative and important.

Candis Watts Smith 
So my thing about that, and what I appreciate about Dahlia, is that she's like, Yeah, I and people like me played a role in framing Justice Roberts as the centrist by noting, okay, well, in these cases, he you know, where we expected him to go right, he went left. And in some cases, we thought he would go right, and he went very right. And so to me, this brings to mind a lesson that we try to teach our own students about false equivalencies, that in the case of Obamacare, yeah, I mean giving health care to people is a good thing. It's no skin off Robert's back. He has great health health care voting rights is a completely different animal, and it's, I mean, yes, we are still seeing the effects of Obamacare, even to this day, but we are also seeing the effects of the Shelby case also to this day. On some level, it's putting us exactly where we are now. With not that long ago, actually, there was a case that in North Carolina that was targeted to disenfranchise UNC students for having their ID cards electronically. And it's actually really hard to get one of those electronically, but basically, you know, that's because in a pre Shelby world, if North Carolina wanted to change the rules around voting ID, they would have had to go to the Department of Justice and say, We want to make these changes, and we don't think that they're going to affect, you know, certain groups disproportionately, and I think in that regime, that kind of change would not have been made. Now, actually, one of my colleagues here at Duke Gunther Peck looks at provisional balloting and turnout, and the turnout levels of young people right now in our county is abysmally low at this point, and part of it is because of a basically snap change in the voter ID law. So that is something that happened in 2013 that we're seeing, and it is negatively influencing the quality of our democracy. So anyway, the long and the short of that is, is that Obamacare, great Roberts supporting that, or being the swing vote on that made him look. Rate and somehow balancing out his decision, and Shelby No, and so anyway, I think that, like we the lesson is, how critical are we reading the way that journalists are painting various justices? I think that one that will come up next is Amy Comey Barrett, like, oh, well, sometimes she does this and sometimes she does that. Let's focus. Friends focus. So we try not to do horse racy stuff. But there is an election coming up, and it is very real possibility that the Supreme Court may have a hand in this election, I don't know what. I don't know what my question is. I just am concerned.

Chris Beem
What Dahlia says. And the reason why everyone should be concerned is that you kind of had the keystone cops in 2020 raising these cases that you know.

Candis Watts Smith 
Were asked.

Chris Beem
I mean, it's like, we want you to undo this for your election, because the procedures are wrong. It's like, so guys, the time to bring up procedural arguments is before the procedure takes place, not afterwards. What the hell you want us to do with this? Right? And that was a lot of the cases, not all of them, but a lot of them. But she says that now you have some very sophisticated lawyers who are loaded for bear and ready to jump, and you have a Supreme Court that if you don't think it's a reasonable possibility that they are going to jump exactly as far and in exactly the same direction as these lawyers are pointing them. I don't know where that comes from, sure.

Candis Watts Smith 
Not to mention that many rules have been changed in the past four years for this exact moment, right, right? 

Chris Beem
And so how do Democrat small d react to that? And you know, when you look at where who knows, but the the prospect of this being anything other than a razor thin election, are vanishingly slim. And the more the slimmer it is, the more opportunities there are to challenge. And if you have election deniers in office, and you have attorneys ready to make bring cases immediately after the election, and you have a sympathetic, let's, let's put it as benignly as we can, sympathetic court ready to hear those claims, then I don't know how you can't find that scary, as a Democrat, small d so do you think we should try to take people off the edge here, or talk people off the edge here, or do we just leave them there and say, This is the world? 

Candis Watts Smith 
I suppose the upside, if we could find one here, is that people like Dahlia and other journalists like her are really doing the hard work of uncovering these inconsistencies, controversies, scandals, the Swiss cheese of the ethics code that the Supreme Court has decided to enforce upon itself, so on and so forth, in part so that that readers can have a better understanding of the fragility of democracy, and hopefully also what their role is, not just in elections, But not just in, you know, presidential elections, but also in state judicial, judiciary elections, because, you know, all of these are linked and connected and flow up and down. So again, we have to have some first step, as we discussed before, elections are not the last step in, you know, in the way these things run, but they do matter. And thank goodness for people like Dahlia. So with that said, we will thank Dahlia and Jenna for the interview. And with that, I will say I'm Candis Watts Smith, for Democracy Works.

Chris Beem
And I'm Chris Beem. Thanks for listening.

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