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This episode is brought to you by Choiceology,

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or wherever you listen. The

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ones who get it done. Hi,

1:08

and welcome to Amicus. This is Slate's

1:10

podcast about the U.S. Supreme Court, the

1:12

law and the rule of law. I'm

1:14

Dahlia Lithwick. I cover those things for

1:16

Slate. And to quote

1:18

our jurisprudence editor, Jeremy Stahl

1:20

and Slate Plus members, you're

1:22

going to hear from him

1:25

in today's bonus episode. Yikesy

1:27

yikes, said Jeremy. That was

1:29

his reaction to this week's

1:31

tsunami of legal news. Yikesy

1:34

yikes. FYI is like a nine

1:36

on the jurisprudence editor Richter scale

1:38

that we use here at Slate.

1:40

So it's been a week and

1:42

not in a good way. On

1:46

Monday, the court heard arguments in

1:48

a homelessness case that seeks to

1:50

address how far cities can go

1:52

in terms of criminalizing people for

1:54

sleeping outside an oral

1:56

argument in which Justice Sonia Sotomayor was

1:59

moved to ask quote, where are they

2:01

supposed to sleep? Quote,

2:03

are they supposed to kill themselves

2:06

not sleeping? End quote. Oh,

2:08

but it got so much worse. On

2:11

Wednesday, the court heard arguments in that

2:13

ER stabilizing abortion care case, the

2:15

one known as Moyle versus United States. We

2:18

covered it that day in our bonus episode

2:21

and the arguments had justices

2:23

pondering whether just mere trivial

2:26

permanent kidney damage is

2:28

something doctors should factor in when

2:30

they're deciding what kind of stabilizing

2:32

emergency care to provide to pregnant

2:35

patients. We had some

2:37

quality musing in that argument

2:39

over whether pre viability fetal

2:42

personhood could trump actual living,

2:44

breathing, parenting children working a

2:47

job, driving a car, adult,

2:50

woman personhood. And yes, for

2:52

at least some justices, the

2:54

tie goes to the not

2:56

viable fetus. Oh, but that

2:58

was just Wednesday. We staggered on

3:00

to Thursday the moment the nation

3:02

has been waiting for, when the

3:05

Supreme Court was finally going to

3:07

stir itself to hear arguments in

3:09

Trump v. United States, the immunity

3:11

case so sweeping that it has

3:13

drawn outright guffaws from

3:15

the somber bow tide

3:17

ranks, former Republican Party

3:19

stalwarts and Republican jurists.

3:22

But not so from the MAGA justices, as

3:24

we are about to discuss the

3:27

proposition that criming while in office is

3:29

not beyond the reach of the law,

3:32

appeared to persuade only really the

3:34

trio of liberal justices, but four,

3:36

five, maybe even a cool six

3:39

of the courts conservative justices looked ready

3:41

to adopt some version of

3:44

the position that while coups are

3:46

regrettable, coup fomenting fake elector fabricating,

3:48

find me those extra votes, shake

3:51

down phone calling DOJ

3:53

firing presidents are not prosecutable

3:55

or not this one who's

3:57

running for president again right now, but

4:00

We don't mention his name because we are

4:02

writing for the ages. We're

4:04

even to begin, but begin we shall, and with

4:07

the very best of guests. Pamela

4:09

Carlin is the Kennes and Harle Montgomery

4:11

Professor of Public Interest Law at Stanford

4:14

Law School, Co-Director of Stanford's Supreme Court

4:16

Litigation Clinic, and has twice served as

4:18

Deputy Assistant Attorney General in the Civil

4:20

Rights Division of the U.S. Department of

4:23

Justice, most recently as the

4:25

Principal Deputy Assistant AG from 2021 to

4:27

2022. She

4:30

is the co-author of leading casebooks on

4:32

con law, constitutional litigation, and law of

4:35

democracy. Pam, it has been just forever

4:37

since we've had you on the show.

4:40

I know that your tour in the

4:42

Justice Department intervened with your

4:44

ability to opine freely, but

4:47

welcome back, dear God. We missed you and

4:49

we need you today over all days. Thanks

4:52

so much for having me. And

4:54

Mark Joseph Stern is Slate's

4:56

senior legal writer, and Mark

4:58

and I were listening together

5:00

on Thursday, and also on

5:02

Wednesday. Welcome back, Mark. Thank

5:05

you. I had the misfortune of

5:07

actually being in the courtroom on

5:09

Thursday, listening and watching, and that

5:11

did not enhance the experience

5:13

in any way, shape, or form. I

5:16

would much rather have been in my

5:18

PJs gossiping with you over Slack, but

5:20

alas, I was trapped in that evil

5:22

chamber watching democracy die before my birthday.

5:24

I mean, it's just showing that they

5:26

shouldn't have arguments on Thursdays. That

5:29

is what it proves. All

5:31

Thursday arguments are bad. I

5:34

think we could rap here. It seems that that...

5:38

So I want to ask actually a framing

5:40

question, which is just, this was

5:43

an incredibly narrow

5:45

interlocutory appeal. This

5:48

was meant to be, right? The case

5:50

has not gone to trial. The way

5:52

this is supposed to go, there was

5:54

a pretty narrow question before the

5:56

court. Is that right, Pam? Yeah,

5:58

and the court itself wrote that. that narrow

6:00

question. That is, that's not the question,

6:02

you know, usually the parties write the

6:05

question that the court is going to

6:07

grant certiorarian and decide. And here

6:09

the court wrote its own question and wrote

6:11

a question that I thought going into the

6:14

argument was so narrow that the answer was

6:16

obvious, which is, does the president

6:19

have immunity for

6:21

acts that are within

6:24

his official duties? And

6:26

the indictment here has a number of acts

6:28

that have nothing to do with being

6:31

president in it, the things about fake

6:33

electors and the like. And so I

6:35

thought, you know, going into this, they

6:37

had written a narrow question so they could write

6:40

a narrow answer that said, yes, this

6:42

trial could proceed. And instead we

6:44

had, you know, as you said in

6:46

the introduction, Justice Gorsuch musing about how they

6:48

should be writing for the ages. Although

6:51

honestly, you have to wonder whether

6:53

we'll have ages if

6:55

this is the kind of treatment we have

6:57

for presidents who break the law. And

7:00

just in that vein, Mark, I guess one

7:02

of the things that was arresting to me

7:04

listening to arguments is that initially sort of

7:06

for the first, I almost

7:08

want to say third of John Sauer,

7:11

that's Donald Trump's attorney,

7:14

at least a third

7:16

of his presentation, because the question was

7:18

so narrow and his admissions were so

7:20

vast, right? He's like, sure,

7:22

a president could, you know, order

7:24

an assassination and that could be

7:27

sometimes within his official duties. Sure,

7:29

he could order a coup and

7:31

that too, depending on the context.

7:34

So it seemed as though this

7:36

was an insane recitation of, you

7:38

know, if this is the narrow

7:40

scope of the case, and he's

7:42

essentially admitting to everything he said

7:44

at the DC Circuit argument, which

7:46

was crazy then, it felt

7:48

as though and so I want to say like

7:51

for the first third of his argument time, I

7:53

was like, oh, they should have just, this should

7:55

be a summary of ferments, right? Because he's doing

7:57

the same thing he did. This is crazy. And

8:00

the question is limited to this. And

8:03

then things just took a turn. It

8:05

turned into a whole other discussion. Yeah,

8:09

it totally went off the rails. And I

8:11

think you're right, it felt like a replay

8:13

of the DC circuit, right? You had the

8:15

liberal justices like Sotomayor and Kagan asking these

8:17

now famous questions. Could the

8:19

president order the military to

8:22

assassinate his political rival? Trump's

8:24

attorney, Sauer, had to basically say

8:27

yes. Could the president order the

8:29

military to stage a coup? He

8:32

was the president. He is

8:34

the commander in chief. He

8:37

talks to his generals all the time. And he

8:39

told the generals, I don't feel like leaving office.

8:41

I want to stage a coup. Is

8:44

that immune? If it's

8:46

an official act, there needs to be

8:48

impeachment and conviction beforehand because the framers

8:50

viewed the... That kind of very low-re...

8:52

If it's an official act, is it an official act? If

8:55

it's an official act, it's impeachment. Is it an

8:57

official act? On the way you described that hypothetical,

9:00

it could well be, I just don't

9:02

know. Again, it's a fact-specific context. It's

9:04

a determination. That answer sounds to me as

9:06

though it's like, yeah, under my test, it's an

9:08

official act, but that sure sounds bad, doesn't

9:10

it? And it felt like

9:12

at some point the conservative justices leapt

9:15

in and decided this was

9:17

going too poorly for team

9:19

Trump. And so they had to

9:21

expand out the scope of the

9:23

case from what, as Pam pointed

9:25

out, was a narrow question that

9:27

they themselves crafted to suddenly bounce

9:30

all over the map. A

9:32

clear statement rule for criminal

9:34

statutes applying to the president.

9:36

Jury instructions, immunity versus a

9:38

defense, official acts and conduct

9:40

versus private conduct. And at one

9:43

point, Justice Kavanaugh stepped in and

9:45

he literally said... I'm

9:47

not focused on the here and

9:49

now of this case. Very

9:51

concerned about the future. Excuse

9:54

me, Brett? You're not focused on

9:56

the here and now of the

9:58

case before you. But you

10:00

have to decide as a justice

10:02

a major case that the nation

10:04

is watching. And that felt like

10:07

such a tell for me because it was like

10:09

the conservative justices knew that Sauer

10:11

was presenting a losing hand.

10:14

And so they had to step in

10:16

and try to rework this to not

10:18

only benefit Team Trump now, but to

10:21

create this broader immunity for presidents with

10:23

an R next to their name, I

10:26

think, to crime all

10:28

they want and not face any

10:30

kind of criminal consequences. That was

10:32

a shocking revelation and admission to

10:34

me. And I think it really

10:37

points toward the broader problem with

10:39

these extremely messy and

10:41

unfocused arguments. Can I just

10:43

jump in and say that, you know, you were

10:45

saying a third of the way through things seem

10:47

to be going well, and then they went off

10:49

the rails. I actually think it was actually later

10:51

than that that things went off the rails, because

10:53

towards the end of Sauer's argument, Justice

10:55

Amy Coney Barrett came in

10:58

and said, you know, everybody had kind

11:00

of agreed, and I think there isn't

11:02

any disagreement that a president who engages

11:04

in private acts that are a crime

11:06

while he's in office can

11:08

be prosecuted afterwards, even

11:10

though the OLC takes the Office of Legal

11:12

Counsel takes the position, he can't be prosecuted

11:14

while he's president because it would be too

11:16

disruptive. So if, you know,

11:19

Donald Trump claims

11:21

on his tax returns a bunch of

11:23

deductions for children who aren't his, he

11:26

can be prosecuted for tax evasion

11:28

later on. And it doesn't matter

11:30

that he signed his tax return

11:32

in the White House or he ran off the forms

11:35

on the White House printer or the like, because

11:37

that would be a pure private act. So

11:40

Justice Barrett went through the indictment.

11:42

You concede that private acts don't

11:44

get immunity. We do. So

11:47

in the special counsel's brief on pages 46 and

11:49

47, he urges us, even if we assume that

11:54

there's, even if we were to decide or assume

11:56

that there was some sort of immunity for official

11:58

acts, that there were sufficient. private acts

12:00

and the indictment for the trial to go, for

12:02

the case to go back in the trial that began

12:05

immediately. And I want to know if you agree or

12:07

disagree about the characterization of these acts as private. Petitioner

12:10

turned to a private attorney, was willing to

12:12

spread knowingly false claims of election fraud to

12:14

spearhead his challenges to the election results.

12:16

Private? As I was, I mean,

12:19

we dispute the allegation, but that sounds private to

12:21

me. Sounds private. Petitioner conspired with another

12:23

private attorney who caused the filing in

12:25

court of a verification signed by a

12:27

petitioner that contained false allegations to support

12:29

a challenge. That also sounds private. Three

12:32

private actors, two attorneys, including those

12:34

mentioned above, and a political consultant

12:36

helped implement a plan to submit

12:38

fraudulent states of presidential electors to

12:40

obstruct the certification proceeding, and petitioner

12:42

and a co-conspirator attorney directed that

12:44

effort. You

12:47

read it quickly. I believe that's private. I don't

12:49

want to. So those acts you would not dispute.

12:51

Those were private, and you wouldn't raise a claim

12:53

that they were official. And he kind

12:55

of said yes. And I thought at that moment, OK,

12:58

what this case is going to be is

13:00

an easy quick remand to say, given

13:03

that at oral argument, the

13:06

former guy's lawyers

13:09

conceded that some of the acts that

13:11

are alleged as the overt acts, if

13:13

you will, and the conspiracy are private

13:15

acts, this case can go forward.

13:17

And then they had the sort

13:20

of where Mark was going, then they had

13:22

the conservative justices saying, pay no attention to

13:24

the case before you. I am the Wizard

13:26

of Oz. And that's kind

13:28

of where the rest of the

13:30

argument went while Michael Drieben was up. That

13:32

is, if the argument had ended after Sauer's

13:36

opening argument, I would have said,

13:38

I think this case was going

13:41

quite well. And you could tell

13:43

just how much they leapt into help by the

13:45

fact that when it came time for Sauer's

13:48

rebuttal, he said, no, no further things.

13:51

You've done my work for me. Rebodel, Mr. Sauer?

13:54

I have nothing further, Your Honor. We should

13:57

explain to listeners. That never happens, right? One

13:59

of the great benefits. of going first

14:01

at the Supreme Court is you get these

14:03

five minutes of rebuttal where you get to

14:05

pick apart what the what the opposing counsel

14:07

said and Sauer it was it was remarkable

14:09

to watch and some of the justices actually

14:11

did look surprised you just walled up swaggered

14:13

up to the lectern and said nothing further

14:15

because as you said Pam the man on

14:17

the court had already done his job better

14:19

than he possibly could and he was wise

14:22

enough to keep his mouth shut and it

14:24

was really interesting I would say that

14:26

it was Justice Katanji Brown-Jacks and Time

14:29

and Time and Time again who kept

14:31

trying to bring it back to you

14:33

know this is the question

14:35

before us this has already

14:37

been admitted let's go home it's

14:39

Thursday we're not meant to be

14:42

here even if we decide here

14:44

something or rule that's not

14:46

the rule that you prefer that

14:49

is somehow separating out private

14:51

from official acts and saying

14:53

that that should apply here

14:56

there's sufficient allegations

14:58

in the indictment in the government's

15:01

view that fall into the private

15:03

acts bucket that the case should

15:05

be allowed to proceed correct because

15:07

in an ordinary case it wouldn't

15:09

be stopped just because some of

15:11

the acts are allegedly immunized

15:14

even if people agree that some are

15:16

immunized if there are other acts that

15:18

aren't the case would go forward

15:20

and I felt as though she

15:22

was saying this thing so many

15:24

times in so many ways that

15:27

you know you all are needlessly fraying

15:30

this up with a bunch of garbage at some

15:32

point I believe it was she

15:34

that said this is an interlocutory appeal

15:36

that's been freighted up with a whole

15:38

bunch of other junk but there was

15:41

just a sense that they'd be like

15:43

there there and threw another bag of

15:45

junk onto the train I mean it

15:47

was such a strange dynamic because you

15:49

really could sort of in plain sight see

15:51

her saying like I thought we were here

15:54

to do this one thing and nobody wants

15:56

to do this one thing and under this

15:58

one thing he he

16:00

lost at the jump. And so it was this very

16:03

weird move. And

16:05

I guess, you know, we can go through,

16:07

if you want to, these questions that Mark

16:09

laid out. Suddenly it turns into —

16:12

criminal statutes have to say, this applies

16:15

to the president — that there is

16:17

this private official act disjunction that we're

16:19

fighting about. All of these

16:21

pieces of it honestly had nothing to do

16:23

with the case at hand until suddenly that

16:26

was what we were talking about for

16:28

two hours. It was kind of

16:31

disconcerting to see what

16:34

seemed to be a relatively straightforward

16:36

question, which is, is

16:39

trying to steal the election, is

16:41

trying to undermine an election, a

16:43

crime that anyone in the United States

16:45

who commits it can be held liable for, to,

16:47

well, what should we do

16:50

about this? Because if we decide that

16:52

Donald Trump can be prosecuted, then

16:54

can't we go back and retroactively pull

16:56

Franklin Roosevelt out of the grave and

16:59

do something about Korematsu? I mean, Operation

17:02

Mongoose, for God's sake, which probably

17:04

nobody remembers because it was in

17:06

the Kennedy administration. They didn't ever

17:08

stop to ask themselves, why is

17:11

it that no president has ever

17:13

been prosecuted in the past? And

17:15

the answer is because no president

17:17

in United States history has ever

17:19

tried to stay in office after

17:21

he was defeated. Gerald Ford left

17:23

office, Jimmy Carter left office, George

17:25

H. W. Bush left office, Herbert

17:28

Hoover left office. What is with Donald Trump

17:30

that he won't leave office? And

17:32

we kind of know the reason he doesn't want to

17:35

leave office is because when he's out of office, he's

17:37

vulnerable to being prosecuted. Right.

17:40

And his own attorneys during

17:42

that second impeachment trial, right,

17:44

go before Congress and say,

17:46

listen, You know, you

17:49

don't need to impeach and remove

17:51

Trump for January 6th because he's

17:53

subject to criminal prosecution later. The

17:55

Criminal justice system can take care

17:57

of this. Mitch McConnell, Republican Senators.

18:00

One by one say we're not voting

18:02

to remove Trump, were voting to acquit

18:04

because we think that the criminal justice

18:06

system can take care of this and

18:08

then twist of all twists. We discover

18:11

that in fact the criminal justice system

18:13

has nothing to do with a former

18:15

president who tried to steal the election

18:17

and I think that conservative court sort

18:19

of spot out different theories of how

18:22

they can make that into law, rights

18:24

and justice. Carbon on justice course it's

18:26

had this idea that they were gonna

18:28

make up a new. Clear statement

18:30

role kind of pop up. Clear

18:32

statement Rule that know what's federal

18:35

Criminal law applies to the President's

18:37

unless it explicitly says is a

18:39

your is stamped with the words

18:41

this law applies to the process

18:43

and as just a soda. My

18:45

are points out like there are

18:47

only eight I need Tiny handful

18:49

of criminal statutes that specifically say

18:51

they apply to the process because

18:53

before Thursday nobody had ever seriously

18:55

thought that this was a thing

18:57

and this was certainly not in

18:59

the question presented. right? This was just

19:01

the boys spinning off in their own emitted.

19:03

Traveling back and forth which is they

19:06

agree that the President can be tried

19:08

for acts that are not official act

19:10

which means all of stats it's a

19:12

say no tax fraud, new drug dealing

19:14

Smith's he. You kinda wonder what these

19:17

justices would say if Donald Trump had

19:19

been peddling able next and two people

19:21

out of the back to the White

19:23

House without a prescription. I think

19:25

there's several drug laws. Of course he can.

19:27

Be prosecuted and they seem to be

19:30

suggesting well as he does it in

19:32

the White House. Then you need to

19:34

fear statement rule that says no president

19:36

cel deal illegal drugs and that's of

19:38

can't be right. We're.

19:41

Going to pause now to hear. From

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some of our great sponsors. The

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21:26

sports heroes, Nobel laureates,

21:28

and everyday people faced

21:30

with monumental decisions. We'll

21:33

discuss the latest research in behavioral

21:35

science and dive into themes like,

21:38

whether we can learn to make smarter decisions

21:40

and how powerful it can be to get

21:42

a do-over. And we'll

21:44

share useful tools and strategies to help you make

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better choices in your own life. You

21:49

can find Choiceology at schwab.com/

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podcast, or wherever you listen. More

21:57

now with Professor Pamela. Carlin at Stamford

21:59

Law School and marked as a stern. Said.

22:02

So I actually wanna ask. There

22:04

was this seem that Justice Alito

22:06

trotted out. That was kind of

22:09

bone chilling. I'm sure you

22:11

would agree with me that

22:13

a stable democratic society requires

22:15

that a candidate who loses

22:18

some election, even a close

22:20

one, even a hotly contested

22:22

one, leave office peacefully if

22:24

that terrorism is the incumbent,

22:27

of course. All right now.

22:30

Yes, A and

22:33

incumbents who. Loses.

22:35

A very close, hotly

22:37

contested election knows that

22:39

a real possibility. Thought.

22:42

After leaving office is not

22:44

an the prisoner is gonna

22:46

be able to go off

22:48

into a peaceful retirement but

22:51

that's a president may be

22:53

from an only prosecuted by

22:55

a bitter political opponent. Will

22:57

that not lead us into

22:59

a cycle that. Destabilizes

23:01

the functioning of our country.

23:03

is a democracy. For

23:06

me this was when

23:08

I went through the

23:10

looking glass. This this.

23:12

this democracy requires. Giving

23:15

immunity to climbing president because otherwise

23:17

they won't leave office. And I

23:19

think Mark and I said in

23:21

our peace it literally like said

23:23

articulation of like don't Make meet

23:26

you Again democracy and so Pam

23:28

I just would love for you

23:30

to react to that statement because

23:32

for me the very notion that

23:34

stability. Rick. Allowing.

23:38

Brought. Immunity so that president's.

23:41

Tribes will agree to retire

23:43

peacefully is so insane. Yeah,

23:46

that was the moment where

23:48

I felt like saying. That's.

23:51

What Just Happened? Like.

23:53

This is that this might happen in

23:56

the future. It's that's what's already happened.

23:58

And if you let. People get

24:00

away without what you said to Donald

24:02

Trump. Is it? If you win the

24:04

Twenty Twenty Four election, do not bother

24:06

to leave offseason. Twenty Twenty Nine? Just

24:08

stay there. Mean. That's really what

24:10

the Supreme Court is saying is there's not going to

24:12

be any crime if you try to stay there. As.

24:16

And I did have this. It wasn't just through

24:18

the looking glass, it was. Did. You

24:20

hear what came out of your mouth? I.

24:22

Think this was a great example of

24:25

Alito being fully like Fox News brain

24:27

poisons during these arguments. I mean I

24:29

think this has been happening for some

24:31

years. He to ask these famously great

24:33

questions. You know that the government banned

24:36

books, turning citizens united on it's face

24:38

and and like really getting to the

24:40

heart of whatever progressives are trying to

24:42

argue. That doesn't quite Tokyo Earth, but

24:44

over the last few years it's just

24:47

been culture war grievances and stuff that

24:49

falls apart upon even a little bit

24:51

of screen. I think he's losing. His

24:53

ads and that was clear not

24:55

only in his Bizarro question saying

24:57

that actually constitutional democracy requires us

24:59

to let president's off the hook

25:01

when they engage in a criminal

25:03

conspiracy to steal lox. And that

25:05

was also his next round of

25:07

questions to Michael Driven who is

25:09

representing Jack Smith Straight work. He

25:11

he ha, dream and walk through

25:14

the layers that sort of protects

25:16

a president from a frivolous or

25:18

a vindictive prosecution and then dismissed

25:20

each one out of hand. right?

25:22

So Driven. Said look at first you

25:24

have to have a prosecutor who's willing to

25:26

bring charges and that prosecutors of course accountable

25:28

to the President's whose accountable to the people

25:31

are a grand jury has to indict? Are

25:33

you know there. Has to be

25:35

a of criminal proceeding and court. Eventually

25:37

a jury of his peers have to

25:40

decide whether he's been found guilty and

25:42

Alito just laughs it off. There's the

25:44

old saw about in dining a ham

25:46

sandwich. Ah yes but I think of

25:48

the new it's you. As a lot

25:51

of experience in the Justice Department's you

25:53

come across a lot of cases. Where

25:55

are the this the Us attorney or

25:57

another federal prosecutor really wanted to indicted.

26:00

and the grand jury refused to do

26:02

so. There are such cases. Yeah. Yes.

26:06

But I think that the other... Every once

26:08

in a while there's an eclipse too. Well,

26:11

I think that that's for the most reason

26:13

is prosecutors have no incentive to bring a

26:15

case to a grand jury and secure an

26:18

indictment when they don't have evidence to prove

26:20

guilt beyond a reasonable doubt. It's self-defeating. As

26:22

though all of that is one big joke.

26:24

Like, oh, prosecutors will do

26:26

anything they want. We all know Justice

26:29

Department line attorneys are hacks, right? Nobody

26:31

believes a grand jury is doing anything worthwhile.

26:33

And then, oh yeah, a jury of his

26:35

peers. Like, that's going to do anything. And

26:37

this is all coming out of the mouth

26:39

of the justice who is by far the

26:41

most friendly to prosecutors

26:43

and most hostile to criminal

26:45

defendants in case after case

26:48

after case, right? The

26:50

guy who could not for the life

26:52

of him find a right to a

26:54

jury trial in the Sixth Amendment or

26:56

like due process for criminal defendants. But

26:58

when that defendant is President

27:00

Trump or former President Trump, he

27:02

suddenly thinks that this entire system

27:05

of criminal prosecution is so feeble,

27:08

such a bad joke that the

27:10

Supreme Court itself has to step

27:12

in and essentially quash this prosecution

27:14

as I read his arguments because

27:16

we just can't trust the system

27:18

to work. The system that is

27:20

incarcerating so many other people whose

27:22

Sam Alito is just rubber

27:24

stamping their convictions right here. No,

27:27

no, no, no, no. We don't believe it all

27:29

in that system. It's such a

27:31

laugh. We can all laugh about it

27:33

in open court being a bunch of BS

27:35

and understand that it requires the adults

27:37

in the room to do the real work

27:40

of letting Trump off the hook. Yeah,

27:42

I wanted to ask you about that,

27:45

Pam, because I really felt like that

27:47

was a turn for me where it

27:49

was like winkingly, you know, we both

27:52

worked in the Justice Department. We know

27:54

what a racket that crap is. And

27:57

again, it was a moment where I felt...

28:00

The thing you expressed, you know, about

28:02

that other statement about, you know, oh,

28:04

we have to let presidents commit crimes

28:07

because stability. This was another one of

28:09

those, I'm sorry, did one of the

28:11

justices of the United States Supreme Court

28:14

just imply, not imply, overtly say

28:16

that everything that happens at the

28:18

Justice Department is hackery and, you

28:21

know, rigged prosecutions? Because if he

28:23

did, I would like him to

28:26

write that sentence. It was shocking.

28:29

Yeah, I mean, there was that shock to it.

28:31

But notice what's underneath all of that is,

28:33

you know, we're worried

28:35

about vindictive prosecutions. And

28:38

we haven't seen any up until this

28:40

point. That is no president, you

28:43

know, prosecuted the president who came after

28:45

him. The closest we come is Gerald Ford

28:47

giving a pardon to Richard Nixon. And

28:50

for all of what

28:52

Sam Alito was saying to be true,

28:55

he has to believe that this prosecution

28:57

itself is a vindictive prosecution, which means

28:59

he has to have bought Donald Trump's

29:01

narrative. And then he's attacking

29:04

the deep state, which is the career

29:06

line prosecutors. And when he does this

29:08

with Michael Drieben, and the thing to

29:10

remember about Michael Drieben is almost his

29:13

entire career, Michael Drieben's career, has been

29:15

as a nonpartisan civil servant who's

29:17

gotten up there and argued

29:19

cases on behalf of the

29:21

Bush administration, argued cases on

29:24

behalf of the Trump administration,

29:26

argued cases on behalf of

29:28

the Obama administration. I mean, what

29:31

Justice Alito did is

29:33

essentially say, I'm living in

29:35

MAGA world, in which

29:37

this is a totally bogus

29:40

prosecution, ginned up by totally

29:42

bogus people as part of a

29:44

vindictive prosecution by Joe Biden.

29:49

And he's also implicitly saying, and if Donald

29:51

Trump gets reelected, you just know he's

29:53

going to prosecute people vindictively too. I

29:55

mean, he really has lost faith in

29:57

the entire system, or at

29:59

least... is prepared to lose

30:01

faith in the system enough to decide

30:03

this case in Donald Trump's favor. I

30:07

wanted to ask both of you

30:09

about originalism in part

30:11

because you know Mark and I are obsessing

30:13

about it for our end of

30:16

term big kind of package

30:18

on what the whole term meant and

30:21

in part because there was this amazing

30:23

moment I think I just want

30:25

to play the audio from Elena

30:27

Kagan. The framers did not put

30:29

an immunity clause into the Constitution. They

30:31

knew how to. There were immunity clauses

30:34

in some state constitutions. They knew

30:36

how to give legislative immunity. They

30:38

didn't provide immunity to the president

30:40

and you know not so surprising they

30:42

were reacting against a monarch who claims

30:44

to be above the law. Wasn't the

30:47

whole point that the president

30:49

was not a monarch and the president was

30:51

not supposed to be above the law. I

30:53

had to turn back to Dobbs here because

30:55

at the outset of Dobbs right Justice Alito

30:57

says thunderously the Constitution

30:59

makes no mention of abortion as

31:02

though you know that's it case

31:04

closed shut the book doesn't use

31:06

the word no right. You know

31:09

how the Constitution doesn't mention the

31:11

words presidential immunity and

31:13

as Kagan points out right they

31:16

knew how to put it in

31:18

there is legislative immunity but not

31:20

presidential immunity and I guess

31:23

this felt like one of those

31:25

masked off moments from the courts

31:27

originalists because you had especially I

31:29

think Justice Kavanaugh railing about these

31:31

policy concerns about what happens if

31:33

you have special counsels and independent

31:35

counsels. These policy concerns about what

31:37

it means to criminally prosecute a

31:39

president but he is just reading

31:41

those policy concerns into what he calls

31:43

Article 2. He can't cite any real

31:46

provision. You know you have Justice Jackson going through citing

31:48

all of these duties saying okay well these are clearly

31:50

official acts can we draw the line here Kavanaugh doesn't

31:52

do that he just seems to think that Article 2

31:54

makes the president a king and that's the end of

31:56

the story. Pam

31:59

I guess I would I want to ask, this

32:01

case exists on two axes. One

32:04

is the legal merits, as he

32:06

suggested. The other is a temporal

32:08

axis, which is this had to

32:10

happen quickly. There was, I think,

32:13

some slim read

32:15

of hope that the court could

32:18

have written narrowly and disposed of

32:20

this rapidly, and this case could

32:23

begin in Judge

32:25

Tanya Chutkin's courtroom

32:27

in Washington, D.C. It

32:29

appeared, at least I was getting

32:32

big remand energy from enough justices

32:34

that I think it's going back

32:37

for something. I

32:39

don't even know what the something could

32:41

be. I wonder if you feel like

32:44

speculating wildly both about what a remand

32:46

could look like, and

32:48

then the sort of, I think, on the temporal

32:50

axis question whether this is game over because we

32:52

don't have a trial before November. I

32:54

mean, there are a couple of different things that could

32:56

happen on remand, right? The best version of

32:58

remand would be, and I think

33:01

Justice Sotomayor suggested this,

33:03

is you send it back down and

33:05

you say there are

33:08

a bunch of acts that the president's

33:10

lawyer conceded were private

33:12

acts in a conspiracy.

33:15

That goes to trial, but you have to give

33:17

a cautionary instruction with regard to the

33:19

one thing that's pretty clearly, I think,

33:22

an official act, which is his use

33:24

of the Justice Department, right? Because

33:27

only the president can misuse the Justice

33:29

Department, and average Joe can't, whereas all

33:31

of the other things that Donald Trump

33:33

is alleged to have done, including pressing

33:36

Mike Pence, are things that any candidate could

33:38

have done. So you send it

33:40

back and you say, you know,

33:42

you have to have a trial that narrows what's

33:45

going on to liability can

33:47

only come from the private acts that

33:49

he did. What worries

33:51

me is they send it back down for

33:54

more proceedings of

33:56

some kind on which acts are

33:58

official, which acts are... having

34:00

decided that he's immune from prosecution for

34:03

the Official Act, which then gives him

34:05

another potential round of appeals, because immunity

34:07

of this kind is being treated as

34:09

something that you can have an interlocutory

34:12

appeal on. And I should explain probably

34:14

for the couple of listeners who

34:16

might not know this, that generally if you have

34:18

an argument that you can't be prosecuted for

34:20

something, or that the

34:23

prosecution can't use particular kinds of evidence or

34:25

the like, you have to go to trial. If

34:28

you're acquitted, great. If you're convicted, you then

34:30

appeal everything at once at the end of

34:32

the case. And that's a little bit what

34:34

they were getting into when they started talking

34:36

about, well, could a president have a defense

34:39

of saying, yes, I

34:41

did this, but you can't hold me

34:44

liable because of the public function doctrine

34:46

or whatever. But I

34:48

think what they've done is they've created a system

34:50

where there could be another round of appeals to

34:52

the Supreme Court before there's a trial. And as

34:55

probably most of your listeners know,

34:57

they all flee Washington at

35:00

the beginning of July. And so the

35:02

idea that a court that's

35:04

already dragged this out, they could have taken

35:06

this case in December, and we could have

35:08

been back down in the district court in

35:11

January, and instead we're looking at May or

35:13

June for this. Words

35:17

fail me sometimes when I think about this,

35:19

how little the Supreme Court actually

35:21

cares about protecting our democracy at

35:23

this point. I totally agree.

35:25

I just want to add one footnote,

35:27

which is that I think

35:29

it's really disappointing and alarming

35:31

that the court could cut out

35:34

of this case, Trump's efforts

35:36

to actually use his presidential authority

35:38

to steal the election, because that

35:41

really is the power of

35:43

the charges against him, of the narrative here,

35:45

that he abused his office, used those powers

35:48

to unlawfully interfere in the peaceful, peaceful

35:54

transfer of power to another president in

35:56

violation of many laws and in violation

35:58

of the 20th amendment to the Constitution.

36:00

constitution, right? Which when Joe Biden... Well, in

36:02

violation of the presidential oath, which requires

36:04

him to take care that the laws

36:06

be executed. And that means taking care

36:08

that we have an election

36:10

and a peaceful transfer of power and

36:12

that he packs up his stuff and

36:14

heads back to Mar-a-Lago. And

36:17

so to slice that out of this case,

36:19

to either not present it, and I'm not sure

36:21

how that would work, I don't think anyone is,

36:23

but to not present it

36:25

or to tell the jury to essentially

36:27

disregard it when it's considering liability really

36:30

weakens Smith's arguments

36:33

for criminal liability and also weakens the

36:35

impact of this case, I think, for

36:37

the American public because it

36:40

transforms from a case about a

36:42

corrupt president abusing executive authority in

36:44

order to maintain an unlawful hold

36:47

in office to a ratty,

36:49

nasty guy who happens to be

36:51

president engaging in all of this

36:53

conduct, you know, the fake electors,

36:55

the lying, whatever the fraud in

36:58

order to maintain his hold on office.

37:00

But you can't think about that latter

37:03

part. All you can look at is

37:05

the kind of frankly small ball stuff

37:07

that to me had always been in

37:09

the background of this broader theme of

37:12

abusing executive power, official power, official duties, whatever

37:14

the Supreme Court is going to call it.

37:16

And so I do think it's going to

37:19

be really unfortunate if the court reaches that

37:21

quote unquote compromise. And I think that seemed

37:23

to be where Barrett was going. I mean,

37:25

Barrett by far asked the best questions of

37:28

the conservatives. She actually seemed to be trying

37:30

to do law unlike the guys on the

37:32

bench. But she seemed to think that what

37:34

you need is some kind of hearing before

37:36

the case goes to trial, where you separate

37:38

out the official acts from the private acts

37:40

and only allow the private acts to go

37:42

forward or develop some kind of way for

37:44

the jury to only consider the private acts.

37:46

Now, I think there's a silver lining that

37:49

that could actually turn in to a kind

37:51

of mini trial in Judge Chutkin's courtroom. Like

37:53

I think that could be very salutary and

37:55

positive and give us a kind of glimpse

37:57

of what will happen and maybe release more

37:59

evidence that public deserves to see. But

38:02

it would ultimately mean that if and when the

38:04

jury convicts, it convicts on the basis of this

38:06

small ball stuff that to me does not even

38:08

begin to tell the whole story of the criminal

38:11

corruption and conspiracy. Can I just drop a footnote

38:13

to your footnote, which I agree with everything

38:15

you said, but did

38:18

it not strike any of the justices

38:20

that if Joe Biden as the challenger

38:22

had done what Donald Trump had done,

38:24

he could be put in jail, but

38:26

Donald Trump, as the president, does exactly

38:28

the same things and he can't

38:30

be put in jail? I mean, that just

38:33

strikes me as so lunatic that,

38:36

you know, if Joe Biden had

38:38

done false affidavits or had pressured

38:40

people or the like, he

38:42

could be put in jail. And if he had

38:44

won the election, he could be tried for all

38:46

that stuff after he leaves office. And

38:49

somehow this idea that because you're president, you get

38:51

a get out of jail free card

38:53

forever just is mind

38:57

boggling. Let's take a short

38:59

break. It's

39:01

hard to imagine a world where we leave

39:04

future generations with fewer rights and freedoms. The

39:06

Supreme Court has stolen the constitutional right to

39:09

control our bodies. Now politicians

39:11

in nearly every state have introduced bills

39:13

that would block people from getting the

39:15

essential sexual and reproductive care they need,

39:18

including abortion. Planned

39:20

Parenthood believes everyone deserves access to care.

39:22

It's a human right. We

39:24

won't give up and we won't back down. Help

39:27

ensure the next generation can

39:29

decide their own futures. Donate

39:31

to Planned Parenthood. Visit planned

39:34

parenthood.org/future. It's a new year,

39:36

but it's the same old, no law, just

39:38

five Supreme Court. I'm Alyssa Murray.

39:40

I'm Leah Litman. I'm Kate Shaw. And

39:42

we are the hosts of the Strix scrutiny podcast on

39:44

crooked media, who also happen to be constitutional law professors

39:47

in our free time. Join us each week

39:49

as we unpack what's on the docket for the

39:51

Supreme Court term and break down the latest headlines

39:53

while still managing a laugh or two. So whether

39:55

you're a lawyer, a law student, or just trying

39:57

to make sense of what these cases mean. Strix

40:00

Gritney has got you covered. New episodes out

40:02

every Monday, wherever you get your podcasts. Time

40:04

for some bad decisions. You

40:08

are listening to Amicus with me,

40:10

Dahlia Lisswick. Let's get back to

40:12

my conversation with Professor Pam Carlin

40:15

and Mark Joseph Stern about the

40:18

gobsmacking oral arguments at

40:20

the High Court this past week. So

40:23

Pam, I think this takes me to

40:25

the place I wanted to sort of

40:27

wind up on this conversation.

40:29

And we can turn to Emtull in a

40:31

second. But I think you're

40:34

both saying, and I'm

40:37

certainly feeling it myself, this

40:39

is not the John Roberts court that I

40:41

expected to show up at this argument. And

40:45

I think you're both saying that as

40:47

sort of blinkered institutionalists like myself, I'm

40:49

getting an immense amount of I told

40:51

you so, blow back this. Like

40:53

I told you there are a bunch of partisan hacks. I

40:56

think I would love to hear

40:59

from each of you why

41:02

this was just so shocking. Because

41:04

it's not just that it

41:06

was shocking on the merits. And it's not

41:08

just, as we've kind of

41:11

ticked it through the arguments, that a

41:13

whole bunch of ancillary crap

41:15

was sort of chummed into the case. It's

41:18

that, at least for me, I

41:20

truly believed at least seven

41:23

members of the John Roberts court

41:26

took the potential

41:29

failure of democracy as a proposition

41:32

seriously enough that the partisan kind of

41:35

valence of this case went away. And

41:37

I think you just said it, Pam.

41:40

That didn't happen. So part of

41:43

what's shocking about this is juxtaposing this

41:45

against Trump against Anderson, which was

41:47

the case earlier in the

41:49

term that involved whether Colorado

41:51

could keep Donald Trump off

41:53

the primary ballot for

41:56

having engaged in insurrection, which under

41:58

section 3 of the 14th. Amendment

42:00

disqualifies you from holding an

42:03

additional office if after you

42:05

take an oath to support the

42:07

Constitution you engage in an insurrection

42:09

or rebellion. And I think

42:11

coming out of that argument where the

42:14

court fairly swiftly reached

42:16

a unanimous bottom line that they were

42:18

going to keep him on the ballot

42:20

because that's what democracy requires to let

42:22

the people decide, you kind

42:24

of thought well maybe they have some kind of grand bargain

42:27

here which is you'll keep Trump on

42:29

the ballot but you'll say of course

42:31

he's not immune from prosecution for engaging

42:33

in crimes that undermined the

42:35

very democracy that you just said you're

42:38

so committed to protecting and

42:40

instead what we got was

42:43

nothing about protecting

42:45

democracy and to go back

42:47

to something Mark said earlier not

42:49

letting the people decide which is the way the

42:51

people decide about crimes is you take them to

42:54

a jury and the jury decides

42:56

whether somebody's guilty beyond a reasonable doubt

42:59

and it's like democracy

43:01

for me but not for thee

43:04

is kind of where the Supreme Court

43:06

seems to be ending up I mean maybe

43:08

they'll surprise us and it'll be they

43:11

were just letting off some steam but

43:14

where the argument seems to go

43:16

was all

43:19

of the things that they said in Trump against

43:21

Anderson had no played

43:23

no role had no weight in how they're

43:25

going to decide Trump against the United States

43:28

right Anderson was

43:31

screw originalism democracy demands more

43:33

and then this

43:35

was screw democracy because

43:38

some other thing because because we don't

43:41

want overzealous prosecutors to

43:43

go after presidents Mark do you

43:45

have a thought on the the

43:49

question I just posed to Pam which is I think

43:52

you and I have spent two

43:54

years saying the John Roberts Court

43:56

is conservative yes but nihilist no

43:59

and I think Maybe we were

44:01

wrong and the one sort of coded

44:03

to the question if questions can have photos is

44:06

I Think

44:08

the mere presence of Clarence Thomas on

44:10

the bench Makes a

44:12

point that you and I have

44:14

been struggling with which is the rut

44:16

is so deep That

44:18

we expected too much. Yeah

44:20

I mean at one point there was a

44:23

discussion of Trump and his allies pressuring state

44:25

legislators in swing states to Nullify

44:27

the results of the election and award these

44:29

fake electors to Trump, right? And I thought

44:31

oh, you know who else pressured state legislators

44:34

to do that? Ginny Thomas the

44:36

wife of Clarence Thomas who was sitting right

44:38

here before my eyes fully participating in

44:40

this case I mean that corruption now feels

44:42

so baked in that I think we

44:44

just sort of move along But

44:47

in a sense, I feel

44:49

like it de-legitimizes his case And

44:52

and proves that there are at least

44:55

a few members of the court who

44:57

just believe that January 6th was no

44:59

big deal Clarence Thomas undoubtedly thinks January

45:01

6th was no big deal the broader

45:04

minimization of January 6th the

45:06

refusal of the conservative justices to

45:08

seriously engage with what happened on

45:10

that day To kind of

45:12

brush it off with these breezy questions about

45:15

oh, we don't really care about this case

45:17

You know, we're deciding a rule for the

45:19

ages as Justice Gorsuch said

45:21

that was remarkable to me It

45:23

was a little less shocking only

45:25

because last week in arguments

45:27

in the Fisher case, right? We similarly

45:29

heard the conservatives minimizing January 6th That

45:31

was a case about these obstruction

45:34

charges that have been brought against 350 some odd January

45:37

6th rioters also two of the

45:39

four charges against Donald Trump in

45:42

the January 6th indictment Right and

45:44

there too we heard the conservatives

45:46

again just laughing off what occurred

45:48

on that day And it's no surprise

45:50

to that in Anderson They were

45:52

willing to sort of just shrug

45:55

off January 6th barely engaged with what

45:57

you know Many have I think accurately

45:59

described doesn't insurrection and say, of

46:01

course, Trump can appear on the ballot.

46:04

What is this nonsense? So yes, the

46:06

nihilism got to me. It felt deeply

46:08

corrosive. It felt like a

46:11

real affront to the democratic system

46:13

that these guys purport to be

46:15

safeguarding. I completely agree with Pam's

46:17

point that jury trials are a

46:20

fundamental part of our democracy. I mean, Justice Scalia,

46:22

before he started to kind of lose it in

46:24

the end, would write quite eloquently about this, that,

46:26

you know, this ability to

46:28

insist on being tried by a

46:30

jury of your peers is fundamental

46:32

to the idea of representative government

46:34

was fundamental to the framers. And

46:37

it all seemed to wash away with, I

46:39

think, an assumption on the right that of

46:41

course a jury in DC would, you know,

46:43

indict a ham sandwich and convict Trump because

46:45

he's a Republican. I found all

46:48

of that incredibly dispiriting. Essentially,

46:50

what I think we saw was

46:52

a conviction on the right flank

46:55

of the court that

46:57

every aspect of democracy that

46:59

the rest of us are subject to,

47:01

including a criminal justice system and a

47:04

right of trial by jury, that all of

47:06

that can't really be trusted to work

47:08

on its own when it comes to

47:10

Donald Trump and that Trump has some

47:12

kind of constitutional guarantee for these guys

47:14

to leap in and give him an

47:16

assist and give him what Pam

47:18

called a get out of jail free card. I think

47:21

that's exactly right. One that we

47:23

all recognize would never be granted to

47:25

a Democratic president. Whatever rule the court

47:27

comes up with, they might as well insert

47:29

a Bush v. Gore style disclaimer that this

47:32

is a ticket good for one case only

47:34

for all their talk about deciding a rule

47:36

for the ages, not focusing on the here

47:38

and now. This was ultimately all about crafting

47:40

a rule to try to prevent Donald Trump

47:43

from facing accountability. It's

47:45

true. In a strange way, Mark, you

47:47

really captured it. Donald Trump was both

47:49

everywhere and nowhere in that hearing. The

47:52

events of January 6th were everywhere and

47:54

nowhere. I want to just

47:56

turn to Emtala for a brief second. Mark

47:58

and I... did a pop-up

48:00

show about it and we wrote about

48:03

it. But I'd love to hear from

48:05

you, Pam, and I think we've covered it enough on

48:07

the show that folks know this was the case about

48:09

Idaho, which has a much

48:11

more constricted notion of what ER

48:14

doctors can provide in terms of

48:16

care, and it conflicts with MTALA,

48:19

which is a federal statute that lays

48:21

out what stabilizing care is that hospitals

48:23

are required to provide. And

48:26

I think the question, Pam, can

48:28

just be one of atmospherics, because

48:30

again, it felt as though

48:32

there was very little serious

48:35

reckoning in the courtroom with

48:37

what actually happens to actual

48:39

women who show up with

48:41

ruptures, with hemorrhaging, with sepsis,

48:44

with the potential of organ damage.

48:47

And it seemed like it was

48:49

quite a lengthy meditation on arcana

48:52

about separation of powers

48:55

or the spending clause. I

48:57

guess my question for you is, it

49:00

was fascinating to me that

49:02

when tasked with explaining why

49:04

Idaho prosecutors were going to go

49:07

easy on physicians who stand to

49:09

spend two to five years in

49:12

jail and lose licensure, if they

49:14

guess wrong about the

49:16

daylight between MTALA and the

49:18

state trigger law, the answer

49:21

was prosecutorial discretion. It

49:23

was that prosecutors are gonna take care

49:25

of these doctors because prosecutors are good

49:28

people. That struck me as one of

49:30

the things that was so different about the two cases.

49:32

One of them is doctors

49:34

shouldn't worry about being prosecuted when they

49:36

do their best within the scope of

49:39

their official duties, but the president really

49:41

does have to worry. The

49:43

other thing that seemed like a

49:45

contradiction to me, and this again goes back to something Mark was

49:47

saying, is that both cases seem

49:50

to be girls against boys on

49:53

the court as well. That is,

49:55

we all know that Justice Barrett is

49:57

a very strong pro-life anti-war

50:00

anti-abortion force on the court, but

50:02

she at least understood what

50:04

was going on here. And

50:07

the male justices just didn't seem to think there

50:09

were any women in this case. I mean, there

50:11

was that moment where Justice Alito says, well, we've

50:13

been talking a lot about the women, but now

50:15

let's look at the statute. What about the

50:17

unborn child? And the fact

50:19

that the words unborn child are in

50:21

the statute shows that there's no point

50:24

in protecting emergency treatment for

50:26

women that terminates a pregnancy

50:29

that hasn't yet ended, even

50:31

though as Elizabeth Prelegar, who did a

50:34

phenomenal job at the argument, and by

50:36

the way, was Miss Idaho. Wow.

50:39

Fun fact. Did you not

50:42

know that? Yeah. I knew she was

50:44

from Idaho. I'm not sure I knew she was Miss Idaho.

50:46

Wow. And so, you know, she understands

50:49

Idaho and she was up there doing

50:51

a great job in the case of

50:54

pointing out just what's happening

50:56

on the ground. And it was like, yeah, yeah,

50:58

yeah, that's happening on the ground. But what about

51:01

here at 35,000 feet? Let's

51:03

talk about how you actually bring a

51:05

spending clause case. Right. And

51:07

just to make a kind of wonky point that I think is a

51:10

through line, Idaho did not raise

51:12

that spending clause argument in the

51:14

lower courts properly, right? So Idaho

51:16

forfeited that question, as several liberal

51:18

justices pointed out. And yet

51:20

the conservatives, especially Justice Gorsuch and Justice

51:22

Thomas, tried to raise it from the

51:24

grave and use it

51:26

to override the interests of women

51:29

in Idaho who are, we know,

51:31

being airlifted from hospitals in Idaho

51:33

to neighboring states because

51:36

they need emergency abortions that are still

51:38

criminalized in Idaho because Mtala is not

51:40

enforced on the ground there and the

51:43

state only allows abortions when the patient

51:45

is on the brink of death. Well,

51:47

and if you read the news, in

51:51

addition to all the examples of women

51:53

being airlifted out, women end up with

51:55

no doctors in Idaho at all because

51:58

doctors are leaving Idaho. because

52:00

they can't, you know, OB-GYNs are

52:02

leaving because they can't practice. Emergency

52:04

medical folks are leaving Idaho

52:06

because they can't practice. And, you

52:09

know, the Supreme Court that's so concerned about

52:11

the future and the

52:13

Trump case seems utterly unconcerned with

52:15

the future welfare of people in

52:18

Idaho, already born people

52:21

in Idaho. And I guess I

52:23

just want to make the point that if these cases come

52:25

out and the majority tries to

52:27

spin them as these narrow technical complex

52:29

decisions, if M. Tala comes out on

52:32

spending clause grounds, which would be outrageous

52:34

because it was a forfeited argument, but

52:36

whatever, you know, if the

52:38

Trump case comes out with this really

52:41

sort of Byzantine distinction between official and

52:43

private acts with this complex remand that's

52:45

going to take months to sort out,

52:47

we're going to get a lot of

52:49

gaslighting from the rights, from the

52:52

court, from conservative media and

52:54

politicians saying, you know, you

52:56

silly folks who are outraged about this, you

52:58

just don't understand the law. It's so complicated.

53:00

Why are you talking about women's lives when

53:03

you should be talking about the spending clause?

53:05

Why are you talking about January 6th when

53:07

you should be talking about, you know, Article

53:09

2 and all of these granular details of

53:11

Article 2 that the court is making up

53:14

on the spot and then applying to President

53:16

Trump and nobody else? I would just urge

53:18

everyone not to fall for it. The gaslighting

53:21

is going to be bad, but should

53:23

be overcome by the knowledge that every

53:25

listener of this show will have that

53:27

I hope the majority of the American

53:30

public will have, that the court did

53:32

this to create a smokescreen to obscure

53:34

the injustices that it is inflicting, that

53:37

the court will take these cases and

53:39

wrap them up in arcane doctrine, sometimes

53:41

doctrine involving questions that were forfeited, in

53:44

part so that the public reaction is

53:46

muted and so that the public might

53:49

feel it doesn't fully understand the impact

53:51

or import of the case. Do not believe it.

53:53

It will not be so. They did that. They

53:57

knew what they were doing and we all have every

53:59

right to be. outraged about what's

54:01

actually going on in these decisions,

54:03

which is the ongoing minimization of

54:05

January 6th, the ongoing dismissal of

54:07

women's health and women's lives, the

54:10

elevation of hypothetical interests of a

54:12

fetus over the actual woman who

54:14

we had thought deserved equal treatment

54:16

under the law. All of

54:18

that should be front of mind and whatever arcane

54:20

garbage they come up with to disguise it, just

54:23

set that to the side. I think that what

54:25

you're saying, Mark, what you're saying, Pam, is

54:28

that for those of us who spent the

54:31

interregnum between January 6th, which happened,

54:33

by the way, across the street

54:35

from the Supreme Court. Let's not forget.

54:39

And this past Thursday, waiting

54:41

to see a performance of

54:44

the justices as the grownups in the room,

54:47

instead saw a performance of, I

54:49

don't know what all, but if

54:51

that is being a grownup, I

54:54

want to stay a kid forever,

54:56

because that was just ponderous chin

54:58

stroking and a whole bunch of

55:00

squirrel, squirrel, squirrel. And in the

55:03

face of, as you said, Pam,

55:05

some of the most exigent, important

55:08

questions that the court has ever

55:10

faced in American history, and

55:12

that was not a performance of taking it

55:15

seriously. That was a simulacrum

55:19

of what taking it seriously

55:21

would be. I mean, women

55:23

are facing grave health crises.

55:25

Democracy is facing a grave health

55:27

crisis, and the Supreme Court just

55:30

doesn't seem to care. The Supreme

55:32

Court doesn't seem to care. I think

55:34

that was the original title

55:36

of the draft of the piece that Mark

55:38

and I wrote on Thursday. Pamela Carlin is

55:41

the Kenneth and Harle Montgomery Professor of Public

55:43

Interest Law at Stanford Law School and

55:45

Co-Director of Stanford's Supreme Court Litigation

55:47

Clinic and is twice served as

55:50

Deputy Assistant Attorney General in the

55:52

Civil Rights Division of the US

55:54

Department of Justice, most recently as

55:56

the Principal Deputy Assistant AG from

55:58

2021. to

56:01

2022. She has written multiple

56:03

leading casebooks on constitutional law and

56:05

there is nobody whose voice we

56:08

have missed more on this show.

56:10

Pam, thank you so much for

56:12

being here. And Mark Joseph Stern

56:14

is my trustee

56:16

copilot on this nightmare

56:18

we call covering the Supreme Court. Mark,

56:20

it is always a treat to have

56:23

you around. Thank you. Thanks, Dahlia.

56:25

Oh, thanks. What's

56:30

that line that Lyndon Johnson said when

56:32

he first addressed the nation after he

56:34

became president? All I have I would

56:36

gladly give not to be here today.

56:38

I mean, I sort of feel that

56:41

way talking about these two cases. And

56:46

Slay Plus members, I will see

56:48

you in the Amicus Plus subscribers

56:50

only bonus episode. This week, Jeremy

56:52

Stahl reports from the Manhattan Criminal

56:55

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56:57

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57:00

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57:02

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visit flate.com/Amicus Plus to get access

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wherever you listen. And

57:29

that is a wrap for this episode

57:31

of Amicus, the full on nihilism edition.

57:33

Thank you so much for listening. And

57:36

thank you so very much for your

57:38

letters and your questions and your comments. You

57:40

can keep in touch at amicusaslate.com

57:43

or you can find us at

57:45

facebook.com/ Amicus podcast. And

57:47

hey, did you get your tickets yet

57:50

for our Washington DC live show on

57:52

May 14th? That show is going to

57:54

be really crucial for understanding the end of

57:56

this Supreme Court term and

57:58

to understand sobering. much of

58:00

the court's radical, revanchist jurisprudence

58:03

of the last several years

58:06

and an understanding of what we might

58:08

be able to do about it. So

58:10

go to slate.com/amicuslive to snag your tickets

58:12

and to get more details and we

58:15

will pop a link in the show

58:17

notes and we will see you there. Sarah

58:20

Burningham is Amicus' senior

58:22

producer with help.com Purchase. Alicia

58:24

Montgomery is Vice President of Audio

58:26

at Slate. Susan Matthews is Slate's

58:29

Executive Editor and Ben Richmond is

58:31

our Senior Director of Operations. We

58:33

will be back with another episode of

58:35

Amicus next week. Until then, hang on

58:37

in there. Hey

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