Another year, another pretty wild Supreme Court term. SCOTUS recently ended its term with a number of big decisions including ruling that former president Donald Trump is immune from prosecution for his “official acts” in office. And it also overturned the Chevron doctrine, reversing a 40-year-old precedent that afforded federal agencies a degree of discretion in interpreting ambiguous laws. As always, there’s a lot to unpack and we’re excited to share our third crossover episode with the hosts of the “Strict Scrutiny” podcast, Chris’ wife Kate Shaw, and her co-hosts Melissa Murray and Leah Litman. They join to discuss some of the most alarming actions from the super conservative majority of the Court, attacks on government agencies and more.
Note: This is a rough transcript — please excuse any typos.
Leah Litman: The idea that these people are so satisfied and are so convinced by what they are doing, it’s grotesque because you think about, for example, you know, the court’s inability to imagine a post-Roe versus Wade future where you have justices confidently predicting that the federal courts will be out of abortion cases once they overrule Roe, that was nuts.
And similarly, when the court overrules Chevron, they’re just like, yeah, here’s some random thoughts about what the post-Chevron world will look like, but gosh knows we haven’t decided to actually hammer them out because we’ve just drank the Kool-Aid.
Kate Shaw: The court has just, it seems to me, given a permission structure for Trump to do everything in his wildest imagination he might want to do but might have been somewhat constrained by the prospect of legal accountability from doing. All of that is now gone. And so it seems to me, not only a wildly wrong, but just an unfathomably dangerous decision.
Melissa Murray: If you think about the whole system of constitutional design, the point of the Constitution and the separation of powers is that you don’t want any one of these branches to consolidate power in a way that allows them to dwarf any of the others. And you have this court essentially creating a king and creating within itself kind of would-be kings.
Chris Hayes: Hello and welcome to “Why Is This Happening?” with me, your host, Chris Hayes. Very quick intro today because things are dire and we got to get to the point, but we are reprising what is quickly becoming an annual tradition, which is when the Supreme Court finishes doing its worst in June and this year into July, we do a term review with the hosts of by far my favorite legal podcast, really my favorite podcast with three of my favorite people, one who is particularly my favorite.
The podcast is called “Strict Scrutiny.” You can find it wherever you get your podcasts. It is hosted by three women law professors, Melissa Murray, who’s at NYU, Leah Litman, who’s at Michigan, and my wife, Kate Shaw, who is at Penn. So we have just seen a crazy term. It ended with the bomb being dropped at this immunity decision, but there’s a whole bunch of other bombs they’ve planted. Then also some landmines that maybe haven’t gone off yet, but probably will in the future.
And I follow this, you know, relatively closely for a civilian, pretty closely by listening to “Strict Scrutiny” and talking to Kate, but I thought this is a great opportunity. There’s so much to kind of get through. So Melissa Murray, Leah Litman, Kate Shaw, it’s great to have you on the program.
Kate Shaw: It’s great to be here.
Leah Litman: Thank you for having us.
Melissa Murray: Always great to be back on a conjugal pod.
Chris Hayes: Another conjugal pod. Yes, Melissa dubbed this a conjugal pod last time because I think marital pod is the adjective that they’ll scan more to people and sounds slightly less PG-13 than conjugal pod.
Kate Shaw: Less spicy.
Chris Hayes: Yeah, a little less spicy. Okay. So there’s a lot to sift through and I thought I basically, I had kind of three buckets in my mind, three categories of sort of term themes, because obviously there’s a bunch of cases, those cases go in a bunch of different directions. I thought I would start with like, it’s not the good news at all, but maybe the least bleak, which is a dynamic that was pretty interesting having to do with the Fifth Circuit Court of Appeals.
And maybe I did something on the Fifth Circuit Court of Appeals and I got a great e-mail from someone I dearly love who’s like an incredibly with it, extremely high information news consumer who’s not a lawyer, who was like, I literally don’t understand what the Fifth Circuit is. And then I felt bad because I was like, yeah, like people literally don’t understand like how federal courts work.
So I wondered if first like, Leah, maybe you can just give a like, what are circuit courts and what is the Fifth Circuit and why is it special to use a euphemism?
Leah Litman: Yeah. So the Courts of Appeals are the intermediate appellate courts. And what that means is in the federal system, you start out in the federal trial courts, which are called district courts, and then the parties go up on appeal to the courts of appeal. And if they don’t prevail there, then they can ask the Supreme Court to hear the case.
And so the Fifth Circuit Court of Appeals is the court of appeals that oversees some states that include Texas, Louisiana, and Mississippi. And that court, why is it special? Where to begin? It is staffed with some of the most unhinged, deranged, lawless judges on the face of the earth. And these people are literally so out there, they occasionally lose the votes of both Clarence Thomas and Samuel Alito.
Chris Hayes: Just to clarify on the sort of how the federal courts work, and Kate, maybe you could just back me up here, because I do think it’s important for people to understand, you know, you go into a district court, whether it’s a criminal trial and it’s a lawsuit, and as long as you can show that you should be in there, you can get in there. And then you have an appeal by right, like you can appeal up to the next court.
So those next courts, those appellate courts, they hear a ton of cases. Things go to them. And then after them, the vast majority of what they do ends there. Like only a tiny little bit gets to the Supreme Court. So most of the stuff that’s happening at the appellate, right? Is that right, Kate?
Kate Shaw: Yeah.
Chris Hayes: Most appellate stuff —
Kate Shaw: Yeah.
Chris Hayes: — that’s it. That’s where you go.
Kate Shaw: Everybody who loses and wants to pursue their case further in the federal system can go up to the Court of Appeals. So there’s an enormous number of cases those courts decide. And that obviously dwarfs the very small number of cases that the U.S. Supreme Court decides, which, you know, at its high watermark was a couple of hundred cases a year. In recent terms, it’s been more like 70 or 80 or even down to 60 or less a year. So that’s an infinitesimally small number of cases compared to the vast, you know, number of cases that the federal appeals courts decide.
Chris Hayes: So these courts, all the circuits in the Fifth Circuit in particular, the Louisiana, Texas, Mississippi, they’re hearing a lot of cases.
Kate Shaw: Yeah.
Chris Hayes: And what they’re supposed to be doing, Melissa, is they’re supposed to be applying precedent, Supreme Court precedent. Like they’re not supposed to be making up the law. I mean, no one’s supposed to be making up the law, but basically, if anyone’s going to make up the law, the Supreme Court is like, we’re going to be the ones to make up the law.
And the Fifth Circuit has just kind of been doing a lot of, I think, for lack of a better word, making up a lot of law and ending up with their cases and decisions before the Supreme Court. And there were there were a bunch this term, right?
Melissa Murray: Yeah, I think that’s a really good point, Chris. So the Fifth Circuit is getting a lot of cases. I will note that there are a number of cases that start out in the Fifth Circuit in Texas in particular because of the practice of judge shopping. A lot of litigants have realized that if they go to certain courts in the Fifth Circuit, like Amarillo, for example, where there’s only one judge in one courthouse, you can pretty much be assured of a conservative outcome or a conservative friendly outcome. And so they file their cases there and then those cases go on to the Fifth Circuit.
And the Fifth Circuit often endorses whatever wackadoodle theory that conservatives advance in the district court and then the other litigants appeal to the Fifth Circuit. I will also note one of the dynamics of the Fifth Circuit is not simply that they’re just kind of rubber stamping crazy conservative theories. And again, to be very clear on our podcast, we refer to the Fifth Circuit as the meth lab of conservative grievance —
Chris Hayes: Yes.
Melissa Murray: — where they literally cook this stuff up. There are a number of Fifth Circuit judges who I think understand themselves to be part of this milieu that is being looked at as potential Supreme Court nominees in the future. So, for example, if Donald Trump wins in November 2024, I think it’s pretty likely that Clarence Thomas and Samuel Alito, who are in their 70s, will step down and they will be replaced by more extreme movement conservatives.
And there are a bunch of guys on the Fifth Circuit who are like, pick me, choose me, love me. And they’re basically auditioning. So one of the dynamics isn’t just that the Fifth Circuit is crazy and cooking up all of this conservative meth. They’re also auditioning. And part of the audition is being as outlandish and outrageous as possible. So it’s not only just a majority decision that’s nuts. There will also be separate concurrences that would go even further to, you know, again, garner the attention of the powers that be.
Chris Hayes: Yeah. And I think that’s such an important point and partly why I wanted to start with this because in some ways, even though it’s a weird thing to say in the current context where things feel pretty dark in a lot of ways, just to remember things can get worse.
Kate Shaw: It could be worse. The Supreme Court could have, yeah.
Chris Hayes: It’s actually genuinely important because the only difference, and Kate, tell me if this is an overstatement, but like the only difference between the Supreme Court and the Fifth Circuit is personnel. Like, there’s no reason, there’s nothing binding other than who you have that you couldn’t have a Supreme Court as nutty, as proximate to the meth as the Fifth Circuit if you were to get, you know, Donald Trump, say, for an office and he got a bunch of people on the court.
Kate Shaw: And you had a Republican-controlled Senate. I mean, I think that absolutely Melissa’s right that you would have two relatively quick retirements. I mean, Thomas, at least, is really enjoying this. So I don’t know that he’s going to want to go.
Leah Litman: Not as much as he enjoys parking his RV and going to Walmart. He likes that.
Kate Shaw: The question, though, is all of the kind of largesse you’re talking about, the RV, which is, of course, you know, heavily subsidized, as were many aspects of Thomas’ lifestyle, as we have recently come to know. But would all of that dissipate if he stepped down from the court?
Leah Litman: I don’t think so, right?
Kate Shaw: No.
Leah Litman: Because it’s a way of locking in —
Chris Hayes: Oh, yeah.
Leah Litman: — more deregulatory corporate power in the court. And replacing Clarence Thomas with some 30-year-old person who’s just going to continue voting his same way.
Chris Hayes: Yeah.
Kate Shaw: He’d continue to get gratuities after leaving the court.
Chris Hayes: Yes.
Leah Litman: Here’s a retirement gift, sir, for this year and every year after.
Kate Shaw: Which one of the court’s cases this term, the Snyder case that invalidated a corruption prosecution precisely on the theory that gratuities, right, like gifts given as a thank you, as opposed to bribes given in advance, are not a violation of a really important anti-corruption statute.
Chris Hayes: Yes. It’s like when you’re done with your term as mayor of Portage, Indiana, you have that little iPad, you flip it around to the contractors that you steered municipal contracts to, and then they write in the tip for that. And then they flip it back around, and that’s fine.
Kate Shaw: All completely fine.
Chris Hayes: Now, if up front you had been like, bro, I’ll steer some contracts to you if you give me $13,000, that’s not good. But if you give —
Melissa Murray: Well, it’s not good right now. Give me more time.
Chris Hayes: Who knows? Yes, exactly.
Melissa Murray: That might be fine as well.
Chris Hayes: All right. Wait, but I want to talk about Snyder, but I want to steer back to Fifth Circuit because —
Melissa Murray: Yeah.
Chris Hayes: — so I think we’ve set up this framework that’s important just in terms of what the Fifth Circuit is, why it’s kind of at the avant-garde. It’s an avant-garde court of sort of right-wing grievance and right-wing jurisprudence.
And one of the remarkable things is a lot of cases, because they were cooking up these sorts of cockamamie theories, SCOTUS took them, partly because it was like, whoa. And in a lot of places, we’re like, nah, dude, this is nuts. Sorry. Like, there’s four or five maybe times they got reversed.
Kate Shaw: It’s more than that. So to take off the most important one. So you had the Mifepristone case, FDA versus Alliance for Hippocratic Medicine. The court unanimously reversed the Fifth Circuit, which had allowed this crazy, unhinged case to proceed against the FDA, arguing that some of these restrictions on Mifepristone should be reimposed and that the FDA had been wrong to loosen restrictions. They got reversed.
The Fifth Circuit got reversed 8-1 in the Rahimi case, the case in which the lower court had said that someone under a domestic violence order of protection had a Second Amendment right to have a gun, regardless of a federal statute that says no, they don’t. The Fifth Circuit got reversed 7-2 in a case involving the funding of the Consumer Financial Protection Bureau. Reverse 6-3 in a case involving federal agencies and officials communicating with social media companies.
An then there was a malicious prosecution case and the NetChoice case involving also the First Amendment and social media and a takings case. So it’s actually a kind of shockingly long list for a term —
Chris Hayes: Yes.
Kate Shaw: — in which the court decided less than 60 cases.
Chris Hayes: I’m not going to ask. I mean, someone keeps the numbers like the version of, you know, the sports statisticians.
Kate Shaw: It’s like a 90. It’s north of it. It’s almost a 90 percent reversal rate on the cases the court took from the Fifth this term.
Chris Hayes: And to be clear, to go back to your point, Melissa, which I think is actually really interesting. I love the line in the beginning. You say it’s about the Supreme Court and the legal culture that surrounds it. And the legal culture that surrounds it what I find so fascinating is in the old legal culture, it would be shameful for those judges on the Fifth Circuit, their clerks, everyone involved to be sending these up and getting reversed, like getting reversed is kind of a badge of dishonor. You screwed up in some way.
I think the sort of status of this used to be like, whoa, yikes, like I got reversed as a judge. And I wonder if you think that still holds. It is pretty remarkable. And some of the opinions were quite scathing about the Fifth Circuit in terms of the way that they do their analysis, the way that like what they’re doing. Like, it wasn’t just getting reversed. It’s like you guys are sort of out of control was the message being sent to some of the text of the opinions.
Melissa Murray: No, that’s definitely true. So there were a couple of opinions where, you know, for example, the court called out Jim Ho, who is one of the worst offenders on the America’s next top appellate Judge/SCOTUS prospect market. He’s kind of doing —
Chris Hayes: Trump-appointee.
Melissa Murray: — Yes. Trump-appointee, was sworn in at the home of Harlan Crow. Super weird.
Chris Hayes: Yeah.
Melissa Murray: I know. But the court publicly rebuked him in an opinion. So, you know, that’s important. It’s also important, I think, to understand that when the court tacks back from what the Fifth Circuit is doing, they get the benefit of looking moderate, even though —
Chris Hayes: Yeah.
Melissa Murray: — the Fifth Circuit is so extreme that when the court pulls back from that extremity, they’re still pretty much on the right. It just looks way better —
Chris Hayes: Right.
Melissa Murray: — than whatever craziness the Fifth Circuit originally offered. So, you know, in a way, the Fifth Circuit is kind of a PR arm for the court. Like, you know, they look insane so this court looks kind of normal, but it’s not normal, and it is moving to the right. It’s just the Fifth Circuit really pulls the average and mass a lot of what the court is doing in terms of ideological drift.
Chris Hayes: Yeah. Let’s just talk. There are two cases that in particular I think are worth just diving into. Obviously, Kate, you just ran through them. But one of them, because they go in two different directions about this. My read on this, my little amateur reading, so you tell me if I’m wrong. I think if you look at the Mifepristone case and Rahimi, let’s start with Rahimi.
And the thing I think is Rahimi, and it’s a joke that Melissa told, I think, in the live show in D.C., which has stuck with me because it’s 8-1 and Thomas writes a dissent. And Melissa’s joke was like, it was like you were showing up for the all you can eat shrimp at Red Lobster and all your all your friends are like on Ozempic. And you’re like, wait, I thought we were doing this. That Thomas basically writes this decision in Bruin, which is another gun case having to do with New York gun laws, basically being like, look, if a gun restriction isn’t there at the founding, essentially is the test, it’s no good.
This case comes before the court in the Fifth Circuit and the Supreme Court where a domestic violence, someone with a restraining order gets a gun. He has unlawful possession of them because he has this order. It’s in violation. And the Fifth Circuit, Leah, what does the Fifth Circuit say? What do they do with this case?
Leah Litman: They take it literally and they say, you asked us to find an analog for any modern-day gun restriction. And there actually isn’t an analog for laws that disarm people subject to domestic violence restraining orders. And the Fifth Circuit apply that test. And then the Supreme Court says, actually, no, that can’t be what we meant in Bruin. You know, if there’s any decision that kind of confirms that originalism is just about like what gives the Republican justices heebie-jeebies, right? It is Rahimi because the Fifth Circuit —
Chris Hayes: Yes.
Leah Litman: — I think, faithfully applied Rahimi. And then you have 8-1, the Supreme Court saying, actually, you misunderstood what we said.
Chris Hayes: The reason that I brought Rahimi first and the reason that I invoked Melissa’s funny joke is that to me, this isn’t a case. What’s interesting about Rahimi is them taking the court literally and then the court having to be like, well, this can’t be right. I mean, literally, like the analysis that we had, like, yeah, domestic violence didn’t exist as a category at the country’s founding. So we can’t possibly be applying this test.
And then all these very funny, Kate, ways, different opinions in that case of the court trying to basically run away from and a little bit gaslight their own previous, you know, jurisprudential logic to find some way to be like, yes, it is okay to take a gun away from a guy who is a menace and menacing, you know, the woman that he had child with.
Kate Shaw: Yeah, I mean, all these different opinions are just like such obvious illustrations of the courts, you know, both inconsistent approach to originalism and deflection of responsibility because, right, each of these opinions says like, no, no, like it’s not our fault or the Bruin opinion’s fault that the Fifth Circuit decided to strike down —
Chris Hayes: Right.
Kate Shaw: — this domestic violence law. It’s an unfaithful or improper interpretation or understanding of the level of generality at which a judge is supposed to conduct the inquiry about whether there is a founding era analog.
But if we’re talking generally speaking about the disarmament of dangerous people. Yeah, we have laws like that. And so that supplies the requisite historical analog. So they’re both trying to reaffirm Bruin. They’re not really distancing themselves from Bruin, but they’re also redefining in a way that is fundamentally bad faith. I think it is right. The Fifth Circuit did literally apply what the court said about how to justify contemporary gun laws. And this was just an example, I think, of a spectacularly unappealing criminal defendant, right?
So Rahimi was not only under domestic violence restraining order, but had discharged his weapon repeatedly at the mother of his child, went on a shooting spree where he shot at five other individuals in the course of, you know, a couple of days. Then his —
Melissa Murray: At a Whataburger.
Kate Shaw: Right. There was a Whataburger involved. Then his house was searched.
Melissa Murray: Do not defile the Whataburger.
Kate Shaw: And the guns were found.
Chris Hayes: Yeah.
Kate Shaw: And so I think the court, just as a PR matter, could not imagine —
Chris Hayes: Yes.
Kate Shaw: — countenancing logic that let this person retain possession of their guns under the court’s cases.
Chris Hayes: And the reason that I think it’s interesting to contrast that with the Mifepristone case is because in Rahimi, it seems like they’re kind of applying the conservative court’s own logic and the court’s like, wait, no. In the Mifepristone case, like the standing analysis that is cooked up at the district court for this one judge that Melissa mentioned, Matthew Kaczmarek, who’s this like movement right-wing lawyer. He’s the only judge in Amarillo. You go and file in Amarillo. You know you have him. Then it goes to Fifth Circuit where you know you’re going to get a sympathetic here.
They kick it unanimously, I think, on standing, right. And I wonder maybe like, Leah, this would be real one on one for your audience, but not necessarily for mine. So like what standing is as a legal concept. And then maybe what the standing analysis of the plaintiffs were here that the court found so absurd.
Leah Litman: Yeah. So standing is the rule that in order to bring a case in federal court, in order to sue, you have to show you were injured or you have some likelihood of injury in the future. And here the plaintiffs were a group of anti-abortion doctors who did not prescribe or use mifepristone. Instead, they maintained that other people’s prescription of mifepristone somehow harmed them, even though they had never been called upon to treat complications from mifepristone in part because mifepristone is so safe.
The district court and the courts of appeal, you know, in order to conclude there was standing, relied on retracted scientific studies and some anonymous blog posts and concluded actually there was a sufficient risk of injury from mifepristone, right. Like it’s laughable. But I do kind of want to push back on the idea that it was just the laughability of the standing analysis that led the court to conclude we just can’t go for this because this Supreme Court has adopted some pretty laughable —
Chris Hayes: Totally.
Leah Litman: — standing analysis, like in the Student Debt Relief case.
Chris Hayes: Student debt, yeah. Yup.
Leah Litman: Right. And I think they specifically made moves so as to prevent having to reach the merits of this case. So, for example, they did not grant the doctors, you know, cross petition.
Chris Hayes: Sorry, what’s a cross petition?
Leah Litman: So the request to hear the case on behalf of the doctors because the court of appeals had ruled against the doctor’s request to revoke mifepristone entirely —
Chris Hayes: Okay.
Leah Litman: — had only granted their request to reimpose some additional regulations. But the Supreme Court also denied the request to intervene, that is to participate in the case by some states.
Chris Hayes: Right.
Leah Litman: And so, therefore, the court didn’t have to confront whether those states potentially had standing. And so they put off a decision on medication abortion until after the election.
Chris Hayes: Right. So you read this as they took the off ramp that was convenient so as not to come up with a really like wildly unpopular ruling in an election year.
Leah Litman: Yeah, in part, right. And the laughability of the standing analysis certainly helped them. But, you know, having seen this court adopt laughable theories before —
Chris Hayes: Yes.
Leah Litman: — I’m just not sure that that was sufficient.
Chris Hayes: I guess this gets us to an interesting question, which is we’re always in this era and we’re going to talk about the admin law cases and we’re going to talk about immunity. But we’re always in this era, I find, or I am at least, like bumping up against this question of like what the law actually is and whether the law is like a set of activities that a group of people acculturated through a set of institutions that credential themselves as making lawyers.
That’s what the law is. Or if the law actually has some kind of internal logic and that certain legal arguments are so bad that they just fail on the merits. And we kind of go back and forth between these two. And I think in some ways this term is sort of testing both of those, right.
So I guess my question to you is, is everything a sort of calculation of the sort of political consequences or sort of the agenda? Are there still arguments that are just so bad, Melissa, that they can’t persuade that they fail under their own weight as arguments? Or is everything essentially, from a descriptive standpoint, a kind of just a sociological question of how a group works and who you can get to do what?
Melissa Murray: I mean, that’s a really good question, sort of like the legal realism behind the current court. Certainly, I think there are elements of the court, maybe even a predominant element of the court, that are motivated by outcomes, maybe ideological outcomes, if you want to put that final point on it. And I think you can definitely see that. I think they’re also very attentive to the world outside of One First Street and sort of thinking about how their decisions may play out on a broader scale in the public.
I think that was certainly the case in the two abortion decisions that the court heard this year. The Mifepristone case, as you note, they never decided on the merits. They kicked it out on standing grounds. And that temporarily preserved abortion access in the United States. But of course, there are states that are already planning to file lawsuits challenging the FDA’s regulation of mifepristone. So that case will be back —
Chris Hayes: Back up, yeah.
Melissa Murray: — before the court, probably after the election.
Chris Hayes: Yeah.
Melissa Murray: The EMTALA case is another great example. You know, that case was pending for five months on the court’s docket when they decided like, oh, wait a minute, maybe we shouldn’t have taken this case. That’s weird that it took five months for them to figure that out. It’s not weird if you think about them recognizing that abortion has the potential to galvanize electoral majorities and send women to the polls in massive numbers —
Chris Hayes: Yeah.
Melissa Murray: — in this very tightly contested election. And so, you know, that may help explain what happened in EMTALA. And it preserves abortion access in Idaho for now, although I will note there’s also a challenge involving EMTALA going on in the Fifth Circuit. And the Fifth Circuit has allowed Texas’s very draconian six-week ban to go into effect and to prohibit the provision of emergency abortions in that state. And that’s still going on because the court never decided —
Chris Hayes: Right.
Melissa Murray: — whether EMTALA conflicts with the state law. And if so, if EMTALA should preempt that state law. So that substantive question is still out there. And Texas has a lot more women of reproductive age than does Idaho. So it’s a major punt by the court –
Chris Hayes: It’s a great point.
Melissa Murray: — and one with real consequences.
Chris Hayes: Can I just say when you put it like that, it just seems so cynical. It seems —
Kate Shaw: Yeah.
Leah Litman: Yes.
Chris Hayes: Like shocking, appallingly cynical.
Kate Shaw: We just recorded our term preview and we were just like, if honestly read together, it really looks like, all they have done in these two cases is decide to minimize the chances that abortion is going to be a really salient issue in the November election. And then they will do atrocious things in both of these cases when they come back, you know, a year to two years from now. I think there’s a very real chance that that’s where we are.
Leah Litman: Wait, I sound super cynical. I think I probably am super cynical, but I think it’s hard not to be. Like, there are these glimmers, these moments where the court seems principled, where, you know, perhaps they do the right thing, as it were. But then there are these moments where they do the wrong thing in such a colossally wrong way that it’s hard not to think that they’re completely motivated by outcome.
And I think a real difference is you have to look at how different this court has been since it became a six to three conservative supermajority. That happened in 2020 after the death of Ruth Bader Ginsburg. And in every term since they’ve had a conservative supermajority, six justices, they’ve overruled a past precedent. And it can’t be the case that every one of these earlier courts was so dumb that they didn’t get it. Like it’s because —
Chris Hayes: Yeah.
Leah Litman: — this court doesn’t believe in those decisions. So you overrule Roe, you overrule the affirmative action decisions, you overrule Chevron, you overrule by implication United States versus Nixon. And through your delay, you give Donald Trump de facto immunity on the January 6th case. And you set him up with your decision to be a dictator king if he wins the presidency in November 2024. And so if it seems like they’re in the bag for Trump, they’ve made it look like that.
Chris Hayes: Yeah, yeah. I mean, I want to get to you. I definitely want to talk about Trump and the immunity case. But since you mentioned Chevron, it seemed to me, aside from sort of both the Fifth Circuit getting smacked down, but also maybe looking into the ghost of Christmas future when we look at the Fifth Circuit is like seem to be one theme. The other big theme seemed to be on administrative law, which is something that we just talk about in cable news constantly.
It’s a huge, sexy topic for us. It’s basically my A block every night. Kate, since you teach admin law —
Leah Litman: Checks out.
Chris Hayes: — since you teach admin law —
Melissa Murray: I want to go there.
Chris Hayes: Well, I think you’ve done an amazing job about writing about this for popular audiences multiple times in “The New York Times” where you’re a contributing columnist. Maybe let’s just start with the Loper Bright case, which, as Melissa just mentioned, overruled a case called Chevron and just set up like what Chevron said, what Loper Bright says and why it’s a big deal.
Kate Shaw: Sure. And you’re right. I think administrative law is not appearing on cable news in A blocks. It sounds dry and technical. And I think that people can assume that it’s sort of abstract and so are its stakes. But like we are kind of trying to communicate that it’s not abstract. The stakes are super high. People should care tremendously about these cases in this body of law.
So basically, Chevron is this 40-year-old case, 1984, that just sets forth kind of distilled to its essence, a very simple rule, which is that there’s lots of laws passed by Congress and they say things that are sometimes kind of broad and general, like employees should get overtime or agencies should take steps to provide that emissions level remain as low as feasible and things like that.
So like what employee means, what feasible means like those aren’t self-defining terms, but agencies that administer statutes have to spend time thinking about what the words in those statutes mean. And what Chevron says is if there’s a law passed by Congress and an agency administers that law, the agency gets to decide what the words in the law mean, if they’re ambiguous at all. And so long as the agency decision about what the words mean is reasonable, courts are supposed to defer to agencies.
So that’s the basic rule. Courts defer to reasonable agency interpretations of statutes. And for 40 years, that has been the governing standard against which agencies have operated and regulated industries have operated and courts have operated. And the Supreme Court last week overruled Chevron and says agencies don’t get to be in the driver’s seat when it comes to interpreting statutes. We do.
Federal courts and ultimately the Supreme Court gets to decide what statutes passed by Congress mean. And the tools that courts use to interpret statutes are not like deep expertise and understanding of the industry and the science. The tools courts use are, you know, dictionaries, Latin rules about how to interpret language, the amicus briefs filed by, you know, ideological fellow travelers and vibes. Those are the things courts use to construe statutes. And that’s what this decision says is now going to determine the meaning of every law passed by Congress.
Chris Hayes: So I want to follow up on a few things. One, the practical implications of this. It’s like, okay, courts are going to decide rather than agencies, but how does that cash out, like why does it matter and why was there such interest in this as a project of both the conservative legal movement and also a bunch of very wealthy interests and corporate interests to get to this point?
Kate Shaw: You know, they have just for decades been hostile to the general project of agency power. I mean, I don’t want to give too complex an answer, but I will say two things. One, really, you know, since the Reagan administration, like, you know, there have been administrative agencies and government writ-large has been in the crosshairs. And that is actually in some tension with this kind of empowerment of the president that I do want to talk about —
Chris Hayes: Yeah, I want to talk about that. Yeah.
Kate Shaw: — in a little bit. You know, there’s definite tension there. But I think basically the attack on agencies is really not about agencies, quite agencies, but the attack on agencies as independent vessels that possess expertise and decide based on, you know, rigorous reasoned based decision-making processes. So actually, I think the conservatives who have had agencies in the crosshairs for decades don’t so much want to, you know, disempower agencies writ-large. They want to bring agencies under the control of an unchecked president if they can control that president, obviously not under the control of Joe Biden, but that maybe is getting ahead.
But as a general matter, I think it’s an anti-government and anti-expertise orientation that underlies this attack on the administrative state and Chevron has come to stand in for the entirety of the administrative state. And so this is an enormous symbolic victory, but it is also a huge practical victory. And agencies will get to do less because these —
Chris Hayes: They’ll get sued more, right?
Kate Shaw: — in regulatory courts. They’ll get sued more in courts. These conservative justices and many conservative lower court judges are going to read statutes —
Chris Hayes: Right.
Kate Shaw: — always in ways that empower the agencies as little as possible —
Chris Hayes: Right.
Kate Shaw: — to intervene in business, right. Like that’s the long and short of it.
Chris Hayes: Okay. Right. Let me ask one and any of you can answer this? I don’t know. Just a devil’s advocate defense of Loper Bright or at least Chevron skepticism. I’ve read commentary by people that work in like civil liberties with like intelligence agencies. And basically, they’re like the people inside the intelligence agencies are menaces. They interpret statutes to maximize their power, to maximize their surveillance power, because that’s what they like. And trying to get courts to review that because of Chevron has been very difficult.
Similarly, immigration lawyers I’ve seen said we can’t get our clients to get their cases heard by courts because of Chevron deference, which says whatever the whim of the administrative interpretation of this is, that’s what goes and our clients are screwed by it. And if we can get into court, that will help us. So these are just two examples where people that I think have interesting or righteous politics are more aligned with, you know, my worldview other than like, you know, the oil companies, for example, have arguments about why maybe this is good or why in their at least narrow practice in the agencies they deal with, maybe this will help. I’m just curious to hear your reactions to that.
Kate Shaw: Yeah, I’m happy to say two things, but you guys should feel free to jump in as well. I mean, I think that it’s really important to make clear that no one defending Chevron is suggesting that agencies always get it right or agencies always operate in good faith or anything like that. It’s just that in a world with really two regimes on offer —
Chris Hayes: Right.
Kate Shaw: — one where agencies make these determinations and one where unelected judges make these determinations, agencies are the better option.
Chris Hayes: Right.
Kate Shaw: They are, you know, staffed with experts and democratically accountable to a degree that federal courts are not. Not totally. They’re not elected, but they are far more democratically accountable than our judges and agencies, if they’re overreaching as immigration agencies and intelligence agencies so frequently are do have checks that can be brought to bear upon them. You know, congressional checks, internal checks in ways that the federal courts just don’t.
Chris Hayes: Interesting.
Kate Shaw: So, I think those critiques have merit, but it’s a universe in which you really have two options. And I don’t see how those advocates can prefer the outcomes that their clients are likely to get in front of this Supreme Court.
Chris Hayes: More of our conversation after this quick break.
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Chris Hayes: One of the things that’s really striking to me, which is related to this, and Leah, I think this is something you all you guys talk about on the podcast a lot. It’s just like almost at a tonal level, the complete lack of humility that is exuded by these individuals in their opinions. Like Robert says, this really snarky line in Loper Bright, where he says like agencies don’t have the expertise interpretation. Courts do. And it’s like and everything is this kind of like smarmy condescension.
Leah Litman: If you think that’s smarmy condescension, you should read a Gorsuch opinion.
Chris Hayes: That’s true. Yes. My line about Gorsuch is that I went in the oral arguments, the immunity case, and I don’t listen to oral arguments very often that I had actually never heard a man make love to his own voice before I heard Neil Gorsuch. But it’s really quite a thing.
Leah Litman: He cites himself.
Chris Hayes: It’s really quite a thing to listen to. It’s really like just comes through the microphone. But, you know, this complete, this sort of imperiousness, the smugness, the sort of like self-satisfied. And to your point, Melissa, before about like they’re overturning all these people, but they’re just generally just like leaking out of these opinions. There is just this sense of like, you know, you ever meet someone who’s like always like I’m surrounded by idiots and it’s a gnarly personality and also not someone I ever trust. They’re like that.
It’s like, well, look at these idiots over here. Look at those idiots over there. Like there’s no sense in these opinions, Leah, of like humility, circumspection. We’re carrying the part of like a long tradition and we’re fallible human beings trying to get it right. And part of what binds us is like I’m thinking of John Paul Stevens, who is very much loved those values and the way that he talked about judging, but they’re totally absent in so many of the parts of the opinions that I’ve read.
Leah Litman: They’re absent, despite the fact that these justices make mistakes all the freaking time. I mean, Justice Gorsuch’s opinion —
Chris Hayes: In a space.
Leah Litman: — in another administrative law case, Ohio versus EPA, which concluded that the EPA is good neighbor rule was not adequately justified because, he, Neil Gorsuch, just wasn’t convinced by their explanations about ozone, misdescribed nitrogen oxides, the gases that cause pollution and smog as nitrous oxide, laughing gas.
Chris Hayes: Wait, wait, I want to stop there. Multiple times, five times in the opinion.
Leah Litman: Yeah, five times.
Chris Hayes: And I just want to be clear about this. I would not get out of bed for a week if I did this. I cannot imagine showing your face. It would be like there are certain errors people make with a typo, and then there’s other errors that show they don’t understand anything. And it would be like it’s such an obvious error, but it would be like calling the Supreme Court a district court. Like if you did that, you don’t deal with the law at all. You don’t know anything.
Leah Litman: Chris, Justice Sotomayor made a mistake citing like something in one of the abortion cases, like some statistic. And conservatives literally flew on her and just attacked her. If any of the female justices or any of the Democratic appointees had made the mistake that Neil Gorsuch made, they would be run off of the court, like people would be talking about how stupid they were. And instead, we’re just like there is Neil Neiling. Neil’s going to Neil. Neil’s going to mistake laughing gas for smog. And who among us hasn’t done that? They get away with a lot.
Chris Hayes: The Gorsuch one, I knew I did a piece on the show, but Kavanaugh also made a mistake.
Leah Litman: Well, so this was back during COVID, during one of the court’s COVID voting cases. Justice Kavanaugh made the inaccurate statement that Vermont had not changed its election practices because of COVID. And the Vermont secretary of state literally corrected him on Twitter and was like, could you please correct this in the opinion? And he did. And like those are like pointed ones, right —
Chris Hayes: Yeah.
Leah Litman: — that like we can like laugh about and are very easy to describe. But the reality is the court makes all sorts of questionable moves, like in the Ohio versus EPA case where Justice Gorsuch basically misdescribed what people said during the agency process and misdescribed how the federal government had responded. And the idea that these people are so satisfied and are so convinced by what they are doing, it’s grotesque.
Because you think about, for example, you know, the court’s inability to imagine a post Roe versus Wade future where you have justices confidently predicting that the federal courts will be out of abortion cases once they overrule Roe. That was nuts. And similarly, when the court overrule Chevron, they’re just like, yeah, here’s some random thoughts about what the post Chevron world will look like. But gosh knows we haven’t decided to actually hammer them out because we’ve just drank the Kool-Aid.
Chris Hayes: I mean, you’ve got a situation where Alito writes in the EMTALA case, which was the emergency care as mandated by federal law in states like Idaho that have intense abortion restrictions. He dissents from them kicking it, basically punching on it to say like, yeah, we should take it and also, here’s Sam Alito. I’m like, I didn’t go to med school, I don’t know. But here’s where me and like my 25-year-old clerks who’ve like been, you know, pounding Red Bull to get this opinion out after some googling.
I mean, I say this like with sort of like knowledge and love and respect. But like, again, those are the people who are doing this. And here’s what this clerk, you know, thinks about, like how much blood you can lose and it still be okay is what is the world that we’re living in.
Leah Litman: Well, but it’s even worse than that, because that opinion is like I recognize that doctors, hospitals, experts and patients are telling me that abortions are required for some of these medical conditions like premature eruption of membranes. But I, Sam Alito, have concluded actually they’re not and —
Chris Hayes: Yes.
Leah Litman: — no evidence, right, to support that.
Melissa Murray: Leah’s makes a great point about just the disdain for expertise and evidence.
Chris Hayes: Yeah.
Melissa Murray: And in a way, I think this term in a lot of different ways showed the modification of the court, not just the Trump immunity cases, but in these cases involving the administrative state, just the disdain for expertise. I mean, this is a more genteel strain of Marjorie Taylor Greene refusing to call Dr. Fauci, Dr. Fauci, and saying that he has to be brought up on crimes against humanity. Like there’s a real disdain and —
Chris Hayes: Yeah.
Melissa Murray: — distaste for anything that reeks of elitism when they are the most elite group of individuals in the country.
Chris Hayes: Yeah.
Leah Litman: But Justice Thomas likes regular people, Melissa.
Melissa Murray: He does. He does like those Walmart parking lots.
Leah Litman: And his RV.
Chris Hayes: It is a quarter million-dollar RV that was basically gifted to him, which is the most amazing detail in the world. And also the documentary about how he likes regular people because he rides in an RV was also paid for by a rich guy, which is also an amazing detail. Okay, so you just mentioned, we’ve mentioned a few times, I’m talking to you the day after the court immunity decision in, I guess it’s Trump v. United States, right. And it was a 6-3 holding.
Leah Litman: That’s King Trump to you, Chris. Yeah.
Chris Hayes: Well, okay. So, this is something that I have more thoughts about than the other cases just because it’s more in the wheelhouse, but let me just start with one. I have a lot of thoughts. But one thought I had and I’d love for you to talk about this. Again, I’m a civilian here. I’m obviously legally adjacent. But one of the things that’s like galling is to compare what happened with the 14th Amendment cases in which it literally says in the Constitution, no one’s like debating this, that you can disqualify people from office for insurrection. It’s written right there in the 14th Amendment.
And that doesn’t mean that that’s the end of the story because the courts we interpret and that’s what courts do fine. But the textual basis for it is like pretty damn clear. The court very quickly takes that case on an expedited schedule. It comes down with a, you know, split ruling, but on the holding unanimous, basically saying like, yeah, it says that, and yes, Colorado found that. But no, this doesn’t work.
Then so when you compare the textual foundation to disqualification of the 14th Amendment to the textual foundation, the Constitution for absolute immunity from criminal prosecution for official acts, it just is ludicrous. It’s nowhere in the text of the Constitution. I went back and actually read Article II today to be like, what’s in here? Like what is given? And it’s like, yeah, sure. These are smart enough people that you can construct something about constitutional power and checks and balances and some analog to like immunity from civil suit, et cetera.
Other forms of immunity that like officials enjoy, which it does exist and has developed in constitutional tradition and at common law, yada, yada, yada, yada. But in the end, like there’s no textual foundation. There is no textual foundation for this thing that they freaking made up yesterday at 10:30 a.m. And the way the court treated this argument with zero textual foundation to the way they treated the 14th Amendment argument with like very clear textual foundation and actual, as Ketanji Brown-Jackson, I think rightfully said, like real historical context, it’s just obviously we all know they’re not actually doing originalism. We all know that this isn’t a cover story. But man, if there was ever something for me that brought that home, it was that.
Leah Litman: Yeah. I mean, if your question is why aren’t they principled in their conservatism, I could not tell you why. I think you’ve seen this in a lot of different places, like think about the Fischer case, which was the criminal law case about the January 6th rank and file —
Chris Hayes: Yeah.
Leah Litman: — defendants and whether or not that statute could be appropriately applied in the context of an insurrection on the Capitol.
And this group of conservatives, all of whom are avowed textualist, meaning that they prioritize above all the plain meaning of the words in the statute, looked at the statute, which says that it is a crime to corruptly obstruct an official proceeding. What they really meant when they made the statute Congress —
Chris Hayes: Right.
Leah Litman: — the purpose behind the statute was to prevent stuff like Enron. And, you know, that kind of context plus text analysis is usually what you hear from the Democratic appointees who are always trying to sort of think about things in a broader context.
Chris Hayes: Right.
Leah Litman: And they get pilloried for it. Like that’s activism. Yet, in the context of this criminal law case, the court was all over the context, very little attention to the text. And, you know, managed to really undermine a number of cases brought against those rank-and-file defendants.
Chris Hayes: This seems to me, Kate, this case yesterday, this was as bad to me as everything. Anything other than January 6th was the case —
Kate Shaw: Yeah.
Chris Hayes: — as I read the opinion. And the only thing I compared to is Bush v. Gore in terms of like the sheer kind of power play that it is.
But Bush v. Gore at least acknowledged in its own way, cynically, very famously, there’s a good for one ride only where the court, after coming up with this completely fakakta analysis of equal protection and why you have to stop the count so that George W. Bush should be president, says, now, don’t get carried away. This analysis doesn’t last after this decision.
And at one level, I sort of would have been happier if they’d been like, look, we’re just trying to spring our boy here. This is not carried out afterward. Like if they had given the Bush v. Gore treatment, I think I would have felt better, you know. So, basically, how bad is it? Is it as bad as everyone’s saying?
Kate Shaw: I honestly think it is worse. The more you read it, the worse it looks. So, obviously it’s a textual. As you said, Bush v. Gore at least has the equal protection clause to hang its hat on. There is nothing in the Constitution that so much as hints at the suggestion that an ex-president should be absolutely immune for anything, let alone maybe everything that’s plausibly official, which is what this opinion holds.
So you have no tax to support this wild conclusion. Everything in our history points precisely in the opposite direction. Back to text, actually, not only do you have no tax, you have this very strong evidence on the other side, which is that legislators have explicit immunity granted by the Constitution. So members of Congress do get immunity. That’s what’s called the speech or debate clause. There is no analog that the president enjoys.
So text, not at all on your side. History points entirely in the opposite direction. But at least in the 14th Amendment Anderson case about disqualification, you had a pragmatic argument that even though text and history actually seemed to support what Colorado had done in disqualifying Trump, there was at least a pragmatic argument that it would be too destabilizing to let individual states do what Colorado had done. So that’s what was driving the justices.
Here, it seems so obvious that also every argument from pragmatism —
Chris Hayes: Yes.
Kate Shaw: — and stability and democracy requires the denial of this kind of immunity. So you have that overlay, which makes this a significantly harder decision to swallow, I think, than the 14th Amendment decision. And you just have this coming at the worst possible time historically, right, where you have Trump running for election on a campaign, an avowedly anti-democratic campaign, promising to lock up his rivals.
The court has just, it seems to me, given a permission structure for Trump to do everything in his wildest imagination he might want to do, but might have been somewhat constrained by the prospect of legal accountability from doing. All of that is now gone. It seems to me, not only a wildly wrong, but just an unfathomably dangerous decision.
Chris Hayes: We’ll be right back after we take this quick break.
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Chris Hayes: There’s one part of the analysis that I find also like so offensive. Well, there’s a lot of it. But this idea of you can’t investigate motive, which I think has been a key part of the sort of Trump era. And I remember someone I once had on the show had just made this great example once. He says, look, if a new mayor comes into town and his big thing is he changes garbage collection to be on Saturdays. Like, obviously, you could do that.
If he does it because he wants to chase the Jews out of the town because he knows the Orthodox won’t be able to put their garbage out and then he can ticket them, that’s obviously not okay. It’s the same action, but obviously, the motive matters tremendously. It could transform a thing from perfectly fine to not okay.
And that obvious, simple analysis that we apply in the law everywhere, all the time, to come in and say, in this case, for this only this person and for this narrow class of people, which is maybe three or four living individuals at any given moment, we just completely throw that out. And anything that’s constitutionally allowable there, you can’t question motive, which is part of the Roberts opinion. Like, it’s a really insane thing to say.
Leah Litman: It’s totally nuts and it both dates back to kind of one of the earlier iterations of Trump’s power grabs and unlawful activity. And then I think it’s one of the most concerning aspects of the immunity opinion. So back in the early days of the Trump administration, when he fired off the Muslim ban that sent travelers into chaos and just upended —
Chris Hayes: Yup.
Leah Litman: — a lot of things, his administration defended it on the theory that you actually couldn’t consider why Trump had enacted this. And instead, the only thing that mattered is that presidents have extensive authority, right, to decide who enters the country. And the Supreme Court didn’t exactly adopt that, basically did and said, if there’s any reasonable way of understanding this Muslim ban as not being rooted in Trump’s very apparent and egregious anti-Muslim animus, then we will understand it. Now, I don’t think there was —
Chris Hayes: Right.
Leah Litman: — a way of understanding it, divorced from that. But that is a way of minimizing the relevance of why he enacted that. And then you get this immunity decision that says you can’t probe an official act that is why a president do something. You can’t introduce evidence about the president’s and his advisors’ deliberations about why they did something. And that is effectively eliminating the ability to prove a crime.
Chris Hayes: Yes.
Leah Litman: Because for all crimes, you need to prove motive, right?
Chris Hayes: Yes.
Leah Litman: The mens rea, why they did something? Did they do it corruptly? Did they do it to advance personal gain? Did they do it right out of vindictiveness for retribution? If you can’t prove that, you are eliminating a prosecutor’s ability to prove a crime. So even if you can introduce some evidence, you’re effectively tying their hands on proving motive.
Chris Hayes: There’s a difference between I swerved my car into that person because the truck was going to get me and I swerved my car to that person because I owe him $50,000 and I wanted him dead.
Leah Litman: Right.
Chris Hayes: Like, that’s the most obvious thing in the universe. We all understand this, even if we’re not lawyers, like we totally get it and to remove it here. There is something, Melissa, this is a question that, well, any you can answer. I’ll go to you first, Melissa. So, I saw a lot of people making this point and people were reaching for it in different ways. People reacting very strongly, obviously, to this opinion, I think rightfully so.
Just like the weirdness of the court’s conception of the executive, which is like they love the president but hate the agencies. It’s like you can order SEAL Team Six to assassinate your political rival. You can, in a very funny and darkly funny example, in a footnote from Ketanji-Brown Jackson’s dissent, poison the attorney general to replace him. But you can’t like regulate smog.
And just trying to sort of think through, like how the sort of admin law and agency jurisprudence fits with their view of executive power, or maybe that’s the wrong question even asked. But I did see a lot of people yesterday trying to kind of make sense of that as a whole.
Melissa Murray: No, it’s a really good question. And again, I think the inconsistency of the conservative position is worth highlighting. You know, weirdly, they are arguing that the president, as the executive, cannot, through administrative agencies, do things like regulate smog. But the president, acting through the DOJ, which is merely an appendage of his office, can fire an attorney general who’s doing something that he doesn’t want done.
Chris Hayes: Right.
Melissa Murray: I mean, and it’s not prosecutable. It’s completely immunized.
And so, you know, it is an imperial court and I think part of the appetite for limiting agency action is also about irrigating power to the judiciary. And that’s very clear in the cases overruling Chevron. You know, in the absence of a congressional mandate to do something, it’s not the agency that gets to decide. It’s the courts. And that’s a huge grant of power to the judiciary. And so you have this imperial judiciary also enabling and facilitating an imperial presidency.
Chris Hayes: Yeah.
Melissa Murray: And if you think about the whole system of constitutional design, the point of the Constitution and the separation of powers is that you don’t want any one of these branches to consolidate power in a way that allows them to dwarf any of the others. And you have this court essentially creating a king and creating within itself kind of would-be kings. And what gets left out? Congress, ostensibly the most direct representatives of the people.
Chris Hayes: Right. I mean, I saw a bunch of people make this point, which is true, is that like if you have any familiarity with the constitutional, like the convention, the debates about it, like it’s so obviously an odious view to the founders and to the constitutional tradition. Again, not telling anyone anything they haven’t heard before. Okay, so here’s where I want to kind of try to land this conversation and this is really important.
And I tried to make this point on air last night amidst the pit of despair. And I’m going to make a version of it on my show tonight. But you guys are better equipped to make it. For me, it feels important to not, in advance, concede things that they are going to try to do. And what I mean by that is what I tried to say last night is if the President of the United States goes to the Department of Justice and says, I want Chris Hayes prosecuted and they open a prosecution of me, let’s hope that doesn’t happen, they’re violating core constitutional rights I have.
Like I have rights under the Fifth and 14th Amendment that mean they can’t do that. And it’s and it’s not legal. And I saw a lot of people conflating. And again, I understand why they made this conflation. And I’m not trying to take away how horrible the decision is. But I do think it’s important to say that, like, it’s not like God is dead and all is permitted and because of the 6-3, you can do anything and you can order your death squads. Because to me, that feels like giving up the game ahead of time.
We still have a constitutional order and that constitutional order is greater than the sum of its parts. It is embedded in a civic culture, in the constitutional decisions made by lawyers, made by the members of SEAL Team 6, who, like, honestly, I have an opinion of that I don’t think they would do that, honestly. And then weirdly, this is one of the arguments that Trump’s lawyers made before or argument.
But my point is, when you look to 2020 to get back to this legal realism, the reason the coup didn’t work was that basically enough people who were lawyers and legally credentialed in some ways were like, this is nuts. I won’t do it. And I just don’t want to give up the fact that, like, that still exists and those norms should still be there. And these six people cannot tell us what the Constitution means and that we can have a king and a tyrant because we can’t. And they’re wrong and we’re right about the Constitution. And in some ways, all of us participate in the constitutional culture as much as they do. Kate?
Kate Shaw: Yeah, I think that’s exactly right. And if one of the things this decision does is to kind of knock the Supreme Court off its pedestal —
Chris Hayes: Yeah.
Kate Shaw: — for a lot of people as the sole and final arbiter of the meaning of the Constitution, that is, I don’t want to call it a silver lining, but that at least is something to seize onto because they can err. They erred terribly in this case, but they are not the only parties who participate in the forging of constitutional meaning and I think it’s right. Executive branch lawyers, members of Congress, lower court judges, civil society, like, you know, the individual subordinates inside the bureaucracy who might be getting orders of the kind that might issue from Trump, they all have an obligation to the Constitution to not an obligation to the Supreme Court.
Chris Hayes: Yes.
Kate Shaw: And that is a hugely important distinction —
Chris Hayes: Yes.
Kate Shaw: — to underscore. And I think it is possible to hold both of those two ideas that it is wildly dangerous for the court to have given permission to a malevolent actor to do the worst possible imaginable things. But I totally agree with the instinct that as bad as this decision is, there are ways to fight back.
Chris Hayes: Yeah. And to me, it’s like it’s desperate. It’s like desperate defense of the worst outcomes. But I don’t want to go on TV and I don’t want to go on this podcast. I don’t want anywhere where anyone who’s like a lawyer, the DOD is hearing that like, well, assassination is now legal. It’s like, first of all, that’s not actually the holding of the court.
Kate Shaw: Yeah.
Chris Hayes: Importantly, like it isn’t. It isn’t actually the holding the court. But that aside, it’s also not lawful. It’s also not right. And it’s a violation of your oath. And I just feel like everyone needs to understand that, that the court can’t change that because a lot of people I think we’re heading towards a period where like a lot of people are really going to have to come up the way they did in those very dark weeks in 2020 and 2021, you know, in all sorts of places.
And I have a lot of faith in the American people and I’ve been very inspired. Like when I watched Rusty Bowers, even people those politics I actually really don’t like. Anyway, Leah, so I’d love for you, Leah and Melissa, to sort of give your thoughts on that.
Leah Litman: I mean, one, I think there’s an important historical antecedent and pedigree for the idea that people who are in the executive branch in particular and hold other offices are not bound by the Supreme Court’s worst interpretations of the Constitution and law. You know, dating back to Dred Scott, you know, when the Supreme Court declared that black people could not and would not be citizens. Abraham Lincoln famously said, like the Supreme Court can resolve the rights of the party to that case, but they can’t force me, right —
Chris Hayes: Right.
Leah Litman: — and my executive departments to refuse to treat black people as citizens. He issued passports to black people. And so there is a tradition of, I think, executive officers in particular holding true to the Constitution and their oath to uphold the Constitution even when the Supreme Court is purporting to allow them, right, to do truly morally and legally outrageous things.
And second is, I think there are political and civic checks, right. So part of that should come as a response to the Supreme Court’s decision. Sure. Right. Maybe the Supreme Court says the president can’t be prosecuted for an assassination, but gosh, right, like there should not be assassinations and that idea is horrible. Right.
We should reaffirm that idea. And we should also understand that this is partially what is at stake in the upcoming election, right, which is partially a referendum about do you want to elect someone as president who has basically promised to use that office to seek political retribution, exceed the bounds of the office, be a dictator? Or do you want to reaffirm the idea that maybe you want someone who believes that laws and morals should be a constraint on what officers should do?
Melissa Murray: I think right now it seems really bleak because it is really bleak and, you know, I don’t want to, you know, blow sunshine toward anyone and then sort of minimize the fact that it’s really bad. I think one of the things that we can do going forward is to sort of center not just the court, but all courts and the way we think about our electoral priorities and recognize that this isn’t inevitable. It took a long time for it to get this way.
Chris Hayes: Totally.
Melissa Murray: It may take some time to reverse, but it’s completely possible. It’s completely probable. And, you know, I know that everyone is tired of getting told about voting, but it really is incredibly important, especially if you center the court as part of your electoral priorities. You know, Justice Thomas and Justice Alito will probably step down under a Republican president. That is what they want. And that means that this conservative supermajority will last for another generation and a half because they will surely be replaced by younger —
Chris Hayes: Yeah.
Melissa Murray: — even more extreme movement conservatives. Just maintaining what we have now and not becoming more extreme is a priority. And that doesn’t feel like a huge win. It’s hard to get people excited about stasis. But honestly, until we can make some movement, that stasis is much preferable to the alternative, which is to push this extremity even further.
Chris Hayes: Yeah. And two things I’d say that just to sort of close here is one is I saw people reacting angrily to, you know, in the wake of the decision being like, Democrats are going to tell us to vote again. And it’s like, look, 55,000 votes across three states go differently in 2016, and we have a 6-3 liberal court. That’s the fact. Like everything we’ve seen was the votes were not there in those three states in that election that created the conditions here.
The second thing is in terms of your point, Melissa, about stasis is like no one knows what the future brings and no one knows what the actuarial role of the dice will be for anyone of any age at any time. And so we don’t know. We don’t know. All we know is who will be empowered to shape the courts. And it’s like right now, it’s like the guy that shaped the Fifth Circuit and made the 6-3 court or the other party that has shaped the three justices in the in the minority in yesterday’s decision and throughout the federal courts as well.
Leah Litman: Well, can I say something about that? I mean, I do think there is a role for activism to play here, too. And yes, there is one side that has a particular vision of the courts, and they’ve prosecuted it really ably over the course of Trump’s four years in office. Biden has been perhaps less focused on the courts. I think he is at his core an institutionalist. He’s not someone for whom the reform the court, pack the court —
Chris Hayes: Yeah.
Leah Litman: — arguments has resonated really well. But I will say this. I wouldn’t have imagined that Biden would have been the guy to forgive student loans, and he did.
Chris Hayes: Right. Totally.
Chris Hayes: He did massive student loan relief, much of it overturned by the court. But even after that, he worked to find other solutions that offered student loan relief to a lot of people and it was incredibly successful. And that’s real money in real people’s pockets. I don’t think he would have gotten there if young people hadn’t been like, I am riding with Biden, but only if this happens. And so I think if you do care about court reform and you do think that it ought to be a priority for the Democratic Party, I think that this is the time to say so.
Like, you know, my support is really conditional on you getting serious about this and doing something about it. And I do think it can be resonant because we did not start off the 2020 election with any of the candidates really talking about their plan for student loan reform and look how far we’ve come in just four years.
Chris Hayes: Melissa Murray is a law professor at NYU. Leah Litman is at Michigan. Kate Shaw is at University of Pennsylvania. They co-host the fantastic, wildly popular “Strict Scrutiny” podcast, which you can find wherever you get your podcasts. It’s a really amazing way, if you’re into this stuff, to learn about the court. It’s incredibly funny and entertaining as well, and Kate, I love you. Great show, guys.
Kate Shaw: Thanks, babe. Doni can decide whether to keep that.
Melissa Murray: It’s a conjugal pod, people. Yeah, it is a conjugal vibe, for real.
Chris Hayes: I’m just telling my wife I love her. I think that’s fine.
Melissa Murray: I mean, but for me and Leah, it’s just like, sorry we’re here.
Leah Litman: We’re still here, guys.
Melissa Murray: Get a room.
Chris Hayes: Once again, my great thanks to the glamorous ladies of “Strict Scrutiny,” including my brilliant wife. That was so fun. It’s so fun we do it. That podcast is really phenomenal. I definitely highly recommend it. I find it so useful just for my own understanding of the court, and you should check it out too. It’s available wherever you get your podcasts.
You can e-mail us at withpod@gmail.com. You can get in touch with us using the hashtag #WITHpod across various social platforms including TikTok, where you can search for WITHpod. You can follow me on Threads, what used to be called Twitter and Bluesky. At all places, my username is chrislhayes.
New WITHpod episodes come out every Tuesday. “Why Is This Happening?” is presented by MSNBC and NBC News, produced by Doni Holloway and Brendan O’Melia. This episode was engineered by Bob Mallory and Cedric Wilson, and it features music by Eddie Cooper. Aisha Turner is the executive producer of MSNBC Audio. You can see more of our work, including links to things we mentioned here by going to nbcnews.com/whyisthishappening.
“Why Is This Happening?” is presented by MSNBC and NBC News, produced by Doni Holloway and Brendan O’Melia, engineered by Bob Mallory and featuring music by Eddie Cooper. Aisha Turner is the executive producer of MSNBC Audio. You can see more of our work, including links to things we mentioned here by going to NBCNews.com/whyisthishappening?