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The Secret Memos Behind the Supreme Court’s Shadow Docket (with Jodi Kantor) · The Oath and The Office

• 0:11
  Speaker 1: Welcome to another episode of The Oath and the Office.
• 0:14
  Speaker 1: I am John Fugel Sang and on this week we've
• 0:17
  Speaker 1: got a very special guest in Jody Kanter and Donald
• 0:20
  Speaker 1: Trump's new one point eight billion dollar anti weaponization fund,
• 0:25
  Speaker 1: which is the most honest corruption scheme in American history. Friends,
• 0:29
  Speaker 1: most politicians try to hide their bribes. Donald Trump is
• 0:33
  Speaker 1: basically stable to post it note to the Treasury Department
• 0:36
  Speaker 1: that says money for my friends. For more, let's go
• 0:39
  Speaker 1: to the star of our show, the author of The
• 0:41
  Speaker 1: Oath and the Office, Ivy League political science professor the
• 0:45
  Speaker 1: mac Corey Bretschneider. Welcome, professor, it's good to see you.
• 0:50
  Speaker 2: Thanks John.
• 0:51
  Speaker 3: You know, the corruption is just getting so much more rampant,
• 0:54
  Speaker 3: so much more blatant, and yet you know, every week
• 0:58
  Speaker 3: we get to talk to each other at focuses me.
• 1:01
  Speaker 3: It gets me ready for the fight ahead, to be
• 1:03
  Speaker 3: honest about what's happening, but also to talk about how
• 1:07
  Speaker 3: we can have hope in the midst of that. And
• 1:09
  Speaker 3: of course, after our discussion about the important recent topics,
• 1:13
  Speaker 3: we're going to go to somebody who I think is
• 1:16
  Speaker 3: just the premiere person uncovering what's actually happening at the
• 1:20
  Speaker 3: Supreme Court. So much of what we'll discuss today is
• 1:23
  Speaker 3: relevant to the shadow docket, the secret emergency orders of
• 1:27
  Speaker 3: the court, where they don't tell us why they're doing
• 1:29
  Speaker 3: what they're doing. Well, Jody Kanter did more to uncover
• 1:33
  Speaker 3: this process, the motivation, and the reality behind it than
• 1:37
  Speaker 3: anyone else.
• 1:37
  Speaker 2: Will talk about that.
• 1:39
  Speaker 3: Also, her reporting on the immunity case, revealing aspects of
• 1:42
  Speaker 3: that that weren't in the light until she came to it,
• 1:45
  Speaker 3: So it's really an incredible person. Of course, she also
• 1:48
  Speaker 3: is the person who broke the Harvey Weinstein story and
• 1:50
  Speaker 3: in many ways is responsible for the Me Too movement.
• 1:53
  Speaker 3: So it's really another incredible episode on the backs last
• 1:57
  Speaker 3: week of an incredible episode with a legal director, Cecilia Wang.
• 2:02
  Speaker 3: And I've heard from so many of you about the
• 2:04
  Speaker 3: power of that interview, so John, I look forward to
• 2:07
  Speaker 3: another great discussion.
• 2:08
  Speaker 1: Well, Corey, thank you. I'm really thrilled about Jody Kanter,
• 2:11
  Speaker 1: and I'm thrilled to talk about this presidential slush fund
• 2:15
  Speaker 1: with you, This massive compensation fund for people claiming they
• 2:18
  Speaker 1: were victims victims of a law enforcement of Biden era
• 2:23
  Speaker 1: government weaponization. This is all Trump settling his own fake
• 2:27
  Speaker 1: IRS lawsuit, tying himself financially to the process. I mean,
• 2:32
  Speaker 1: this isn't even normal corruption, Corey. This is corruption with
• 2:34
  Speaker 1: stadium lighting at a gift shop that the president controls,
• 2:38
  Speaker 1: the Justice Department he controls, the treasury, he sued the
• 2:42
  Speaker 1: government he controls. Then the government he controls agreed to
• 2:46
  Speaker 1: give him one point eight billion of hour dollars to
• 2:50
  Speaker 1: fund people that he appoints and supports, to reward people
• 2:55
  Speaker 1: who claim they were victimized by investigations for their crime.
• 3:00
  Speaker 1: We have achieved venmo for fascism, Corey. And clearly this
• 3:05
  Speaker 1: is Greeban's politics dolled up in executive power. This will
• 3:08
  Speaker 1: be in the history books as legendary corruption. They don't
• 3:11
  Speaker 1: seem to care how it looks in history. But let
• 3:13
  Speaker 1: me ask you about the history. I mean, do authoritarian
• 3:16
  Speaker 1: movements often create systems that reward political loyalty while framing
• 3:21
  Speaker 1: the leaders as permanent victims? Is this new?
• 3:24
  Speaker 2: Well?
• 3:25
  Speaker 3: Definitely, the phrase venmo for fascists, I think I've ever
• 3:28
  Speaker 3: heard that before, and it captured so much of what's happening,
• 3:32
  Speaker 3: because you know, it really is just a payment scheme
• 3:34
  Speaker 3: from the president to himself or to his political interests.
• 3:39
  Speaker 3: And you know, let me just say in answer to
• 3:41
  Speaker 3: your main question, like, how can this happen? And the
• 3:45
  Speaker 3: answer is because of the structure of our system. It's
• 3:48
  Speaker 3: the same way that Trump has escaped liability for his
• 3:52
  Speaker 3: crimes because the Justice Department, despite the immunity case, could
• 3:56
  Speaker 3: continue to prosecute him. That's never going to happen because
• 3:59
  Speaker 3: who controls the Justice depart the president. Who controls the irs,
• 4:03
  Speaker 3: it's the president. And although there were protections to try
• 4:07
  Speaker 3: to insulate civil service decisions and public interests from president's
• 4:12
  Speaker 3: own ambitions, those have turned out to be you know,
• 4:15
  Speaker 3: weak to non existent checks. And increasingly we've talked about
• 4:18
  Speaker 3: the theory of the unitary executive, the control by the
• 4:21
  Speaker 3: executive over the various executive branches, even the civil service.
• 4:25
  Speaker 2: Well, you're seeing an extreme.
• 4:27
  Speaker 3: You know, this would have been an absurd, hypothetical example
• 4:30
  Speaker 3: in a law school exam ten years ago. Now it's reality,
• 4:34
  Speaker 3: which is that the president, because he controls the irs,
• 4:37
  Speaker 3: because he controls the Attorney General, has basically come in
• 4:41
  Speaker 3: and say, hey, I want you to pay me to
• 4:43
  Speaker 3: apologize for all the wrongs that were done to me,
• 4:46
  Speaker 3: to the irs.
• 4:47
  Speaker 2: Now you know his.
• 4:48
  Speaker 3: Lawyers, and there was a court process that was about
• 4:51
  Speaker 3: to get underway. Something got to him to realize, you
• 4:54
  Speaker 3: know what, that might be a little too on the
• 4:57
  Speaker 3: nose to corrupt two in the spotlight, too much, really
• 5:00
  Speaker 3: sticking a you know, middle finger in the face of
• 5:03
  Speaker 3: the American public. So he comes up with this alternate scheme, that.
• 5:07
  Speaker 2: Is, is it as bad. It's just different.
• 5:09
  Speaker 3: It is as bad, and it's to reward his supporters
• 5:13
  Speaker 3: for participating in his own coup.
• 5:15
  Speaker 1: Yes, and reward criminals and terrorists, to reward people's bread
• 5:19
  Speaker 1: pops for a lie. I mean, even Vladimir Putin, Corey
• 5:22
  Speaker 1: Vladimir Putin has the decency to launder money through oligarchs
• 5:25
  Speaker 1: and shell companies. You know, this is just there's no
• 5:29
  Speaker 1: oversight whatsoever. The fund literally says it can decide its
• 5:33
  Speaker 1: own rules. It can decide who gets this two billion
• 5:37
  Speaker 1: of our money a secret. It has no judicial review.
• 5:40
  Speaker 1: It's just it's a guy who ran a casino into
• 5:42
  Speaker 1: bankruptcy's saying, trust me right, Like, what safeguards, if any,
• 5:47
  Speaker 1: exist against a president effectively turning the federal government into
• 5:51
  Speaker 1: a personal piggy bank for his friends and flunkys.
• 5:56
  Speaker 2: Wow, this is the oath in the Office podcast.
• 5:58
  Speaker 3: The president takes an oath to preserve and defend the Constitution.
• 6:01
  Speaker 3: But our question from the beginning has been, while if
• 6:03
  Speaker 3: the president disregards that oath, what can we do? Well
• 6:06
  Speaker 3: in that IRS case, there was a judicial proceeding, there
• 6:10
  Speaker 3: was some pushback, there was at least bringing it to light,
• 6:13
  Speaker 3: and it was such obvious self dealing because it was
• 6:15
  Speaker 3: the president financially and his sons who were going to benefit.
• 6:18
  Speaker 3: So he shifts it a little bit well to demand
• 6:21
  Speaker 3: in settlement support for his militia for those who attacked
• 6:26
  Speaker 3: the capital. He didn't pay the militia as far as
• 6:28
  Speaker 3: we know directly before, but now he is and that's
• 6:31
  Speaker 3: what's happening. So yeah, it is a kind of you know,
• 6:34
  Speaker 3: fascists often have stormtroopers, and those stormtroopers.
• 6:37
  Speaker 2: Ideally are going to be rewarded.
• 6:39
  Speaker 3: While they were rewarded with a pardon, but you know,
• 6:41
  Speaker 3: that puts them back to zero.
• 6:43
  Speaker 2: Now here, they're in the black.
• 6:45
  Speaker 3: They're going to be paid, and it incentivizes to future
• 6:49
  Speaker 3: action and loyalty, not to the law, not to the Constitution,
• 6:53
  Speaker 3: but to this president. Amazing, and let me just say
• 6:55
  Speaker 3: it again, because you know, we brought it up a
• 6:57
  Speaker 3: couple of times. But I want to be so clear.
• 7:00
  Speaker 3: In a very, very vulnerable system, the president of the
• 7:02
  Speaker 3: United States has more than two million people in the
• 7:05
  Speaker 3: executive branch. And although there used to be in the
• 7:08
  Speaker 3: nineteen seventies and before, either norms or legal limits on
• 7:13
  Speaker 3: the president's ability to do whatever he wants with those
• 7:16
  Speaker 3: two million plus people, with this enormous budget, increasingly the president,
• 7:20
  Speaker 3: under this theory of the unitary executive, enabled by the
• 7:23
  Speaker 3: Supreme Court in part, has exerted control.
• 7:26
  Speaker 2: Now what you're seeing is legislation.
• 7:28
  Speaker 3: That handed over money to the Department of Justice to
• 7:31
  Speaker 3: compensate was thought in you know, good faith in dealing
• 7:36
  Speaker 3: with people who were wronged, and there really.
• 7:38
  Speaker 2: Don't seem to be many limits on that.
• 7:40
  Speaker 3: Now, what happens when a president abuses that trust, Well,
• 7:44
  Speaker 3: it's unclear. I mean, I think there will be litigation,
• 7:46
  Speaker 3: will be an attempt to stop this, but I'm not
• 7:49
  Speaker 3: confident about it.
• 7:50
  Speaker 1: I mean, January sixth, terrorists, which is what they are, folks,
• 7:54
  Speaker 1: I mean, go to a dictionary. They were terrorists. If
• 7:57
  Speaker 1: you're using violence or the threat of violence to bring
• 8:00
  Speaker 1: about policy change, you are a tea word New York
• 8:03
  Speaker 1: Times letting you know they're now getting paid by we,
• 8:06
  Speaker 1: the taxpayers, for the violence they committed at our capital.
• 8:10
  Speaker 1: And Trump allies and flunkies and conservative influencers. I'm sure
• 8:14
  Speaker 1: Trump himself is going to get a taste of all this.
• 8:16
  Speaker 1: And the legal logic, professor, is incredible, because if the
• 8:19
  Speaker 1: president can sue himself and settle with himself with our money,
• 8:25
  Speaker 1: why would Congress ever control spending? Again, isn't that the
• 8:28
  Speaker 1: real scandal. It's not just Trump's stealing money. He's establishing
• 8:31
  Speaker 1: a principle that the presidency itself is above accountability, that
• 8:35
  Speaker 1: Congress appropriates funds unless the emperor would prefer cash.
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  Speaker 2: Am I right?
• 8:40
  Speaker 1: I mean this reinforces the whole strategy of redefining accountability
• 8:45
  Speaker 1: itself as persecution.
• 8:47
  Speaker 2: Yeah.
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  Speaker 3: And you know, at the same time that he's claiming
• 8:50
  Speaker 3: to be a victim, he is victimizing the rest of
• 8:53
  Speaker 3: us because he's taking this trust. You know, in Congress
• 8:56
  Speaker 3: hands over money like this and gives lots of discretion
• 8:59
  Speaker 3: to the President and sendling lawsuits.
• 9:02
  Speaker 2: What are they doing.
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  Speaker 3: They're essentially, you know, giving over a good faith effort
• 9:06
  Speaker 3: in the thought that the president is acting in a
• 9:08
  Speaker 3: good faith way. Wake up, Congress, that's not what's happening here.
• 9:12
  Speaker 3: And we haven't seen Congress push back on those delegations
• 9:15
  Speaker 3: and those allocations of funds without any limits and the
• 9:19
  Speaker 3: consequences when you have, you know, bad faith, a criminal president.
• 9:23
  Speaker 3: Let's not call it bad faith, it's way beyond that.
• 9:26
  Speaker 3: He's going to abuse that trust. And we have a
• 9:28
  Speaker 3: structure of presidentialism where the president has been given so
• 9:32
  Speaker 3: much authority and a bad, bad, criminal president who's just
• 9:36
  Speaker 3: able to you know, it's not clear what stopped them
• 9:39
  Speaker 3: exactly from stealing the money from the irs. That's what
• 9:41
  Speaker 3: it was an attempt to do, but he clearly got
• 9:44
  Speaker 3: a little too embarrassed, so he just shifted the focus.
• 9:46
  Speaker 1: Unless this was always the plant, unless this was always
• 9:49
  Speaker 1: the play on. Maybe always this was always the play on.
• 9:53
  Speaker 1: And you go with the lawsuits, so you have the
• 9:54
  Speaker 1: settlement at the end, right, and the law suits trum
• 9:57
  Speaker 1: intimidate your way to the settlement that you want to have.
• 10:00
  Speaker 1: It's just incredible to me. These Republicans spent decades screaming
• 10:04
  Speaker 1: at government that this welfare creates dependency, and now they've
• 10:07
  Speaker 1: created a billion dollar grievous stimulus package for professional victims.
• 10:12
  Speaker 1: I mean, this is affirmative action for insurrectionist terrorism. And
• 10:15
  Speaker 1: the whole message is stay loyal, protect the boss. There's
• 10:19
  Speaker 1: money in it for you, right, I mean, it seems
• 10:22
  Speaker 1: like grievance is effective as governing philosophy corp. You can
• 10:27
  Speaker 1: make a buck. Trump is not really running as president.
• 10:29
  Speaker 1: He's running as a plaintiff in America versus everybody else.
• 10:33
  Speaker 3: You know, the Constitution has two emoluments clauses which bans
• 10:37
  Speaker 3: exactly this kind of self dealing using the presidency for profit.
• 10:41
  Speaker 3: There's a foreign emoluments clause that keeps you from negotiating
• 10:45
  Speaker 3: with foreign leaders in order to benefit yourself. Of course,
• 10:48
  Speaker 3: we're seeing tons of violations of that, with the president's
• 10:51
  Speaker 3: son in law, for instance, using negotiation to benefit himself.
• 10:54
  Speaker 1: And at his sons and the hunter.
• 10:57
  Speaker 2: Biden is screaming, and there's us.
• 11:00
  Speaker 3: So domestic emolument's clauses is a paradigmatic violation of that,
• 11:03
  Speaker 3: which is using the office to either profit yourself or
• 11:08
  Speaker 3: arguably to throw money to your close allies. And yet
• 11:12
  Speaker 3: we don't have legislation that stops it. We're going to
• 11:15
  Speaker 3: talk with Jody canter about the origin story of the
• 11:17
  Speaker 3: immunity case that has enabled Trump given him essentially a
• 11:21
  Speaker 3: get out of jail free cards, even though he's doing
• 11:23
  Speaker 3: things that are arguably illegal and criminal. All the time,
• 11:26
  Speaker 3: he thinks to himself, I'll just say it's official duty.
• 11:29
  Speaker 3: With the immunity case says, just to clarify for people
• 11:31
  Speaker 3: Trump versus the United States, as it says, the president
• 11:34
  Speaker 3: is at least presumptively immune when he's acting in his
• 11:37
  Speaker 3: official duty. So if he's going to kill somebody on
• 11:40
  Speaker 3: Fifth Avenue, maybe he wouldn't get away with it it
• 11:43
  Speaker 3: was for personal reason. But as long as he says, well,
• 11:45
  Speaker 3: it's for my official duty, that's why.
• 11:47
  Speaker 2: I killed somebody on Fifthavenue, that's it. He might get
• 11:50
  Speaker 2: away with it. And at least that's the logic of
• 11:52
  Speaker 2: how he's thinking.
• 11:53
  Speaker 3: And that's what's so disastrous about that case that we're
• 11:55
  Speaker 3: going to talk about, that it leads to this kind
• 11:57
  Speaker 3: of blatant corruption that we're talking about right now.
• 12:00
  Speaker 1: Yeah, I mean, and again, you know, this is why
• 12:02
  Speaker 1: I don't call Donald Trump a fascist. I can't do
• 12:05
  Speaker 1: it because fascists believe in things right. His movement is fascist.
• 12:10
  Speaker 1: He's surrounded by fascist flunkys and henchmen. But I mean,
• 12:13
  Speaker 1: corruption isn't a side effect of trump Ism. Corruption is
• 12:16
  Speaker 1: the governing philosophy. It's not conservativism, it's not populism, it's
• 12:20
  Speaker 1: not Christian nationalism. With this guy, it's friends of Trump
• 12:23
  Speaker 1: eat free. And that's it. The corruption is the point.
• 12:27
  Speaker 1: The fascism is just the side effect. The fascism is
• 12:31
  Speaker 1: just the car that follows the hood ornament that is Trump.
• 12:35
  Speaker 1: And to that end, I want to ask you about
• 12:37
  Speaker 1: the Supreme Court because the politics of abortion are getting
• 12:41
  Speaker 1: increasingly difficult for Trump. He's always been able to straddle
• 12:44
  Speaker 1: the line and lie and say I wanted to go
• 12:46
  Speaker 1: back to the States, when in reality that's not what
• 12:48
  Speaker 1: they want it. They want to ban it. They want
• 12:50
  Speaker 1: a government that tells citizens they are forced to be
• 12:52
  Speaker 1: pregnant against their will. And we see the conservatives in
• 12:56
  Speaker 1: his circle are not satisfied with getting rid of Roe v.
• 12:58
  Speaker 2: Wade.
• 12:59
  Speaker 1: They want national restrictions. Swing voters are not going to
• 13:03
  Speaker 1: let that happen. And the Supreme Court keeps handling major
• 13:06
  Speaker 1: abortion questions through the emergency docket without often any opinions
• 13:10
  Speaker 1: or even transparency. I mean, Professor has this party painted
• 13:14
  Speaker 1: itself into a corner by overturning Row and then discovering
• 13:17
  Speaker 1: voters didn't want that and don't like the consequences.
• 13:21
  Speaker 3: Well, I've been saying in our discussions from the beginning
• 13:24
  Speaker 3: that when it comes to the question of abortion, the
• 13:27
  Speaker 3: Dobbs decision which ended Roe v. Wade, sold itself by saying, Okay,
• 13:31
  Speaker 3: we're restoring the power of democracy. We're restoring the ability
• 13:34
  Speaker 3: of the states to make this decision abortion or no abortion.
• 13:38
  Speaker 2: But from the.
• 13:39
  Speaker 3: Beginning I worried that people like Alido and Thomas and
• 13:43
  Speaker 3: Justice Gorsich as well, have a deeper agenda.
• 13:47
  Speaker 1: And John Roberts to Roberts, he's more. We're going to
• 13:50
  Speaker 1: talk a lot about John Robert all of them. He's
• 13:52
  Speaker 1: smart enough to know better. He's more.
• 13:54
  Speaker 2: Yeah, I mean there's two.
• 13:55
  Speaker 3: John Roberts is the one that we see in the
• 13:57
  Speaker 3: public and one that we see in private. But at
• 13:59
  Speaker 3: least these other justices, it's been very clear that they
• 14:03
  Speaker 3: have a different kind of agenda. Gorsich, for instance, in
• 14:06
  Speaker 3: his dissertation in his first book, gives i'll call it
• 14:09
  Speaker 3: very strong hints that he favors a national ban on
• 14:12
  Speaker 3: abortion because if the fetus, after all, is a person
• 14:15
  Speaker 3: and recognized under the Constitution. There has to be a
• 14:18
  Speaker 3: national equal protection guarantee for that person, and that means
• 14:23
  Speaker 3: a national ban on abortion.
• 14:24
  Speaker 1: Now, none of this is in the Bible, folks, None
• 14:27
  Speaker 1: of this is in the Bible. None of this is
• 14:29
  Speaker 1: in the Constitution.
• 14:30
  Speaker 3: Definitely not. And Alito and Dobbs does two things. He says, yes,
• 14:34
  Speaker 3: we're returning it to the States, but he also talks
• 14:37
  Speaker 3: a lot about the status of the fetus in a
• 14:39
  Speaker 3: way that sounds very close to what I just said
• 14:41
  Speaker 3: about Justice Gorsich. Well, now we're seeing this question, which
• 14:44
  Speaker 3: is we have a supreme national federal law that okays
• 14:49
  Speaker 3: as safe hast own abortion drug, and yet we have
• 14:54
  Speaker 3: a ban on abortion in states like Louisiana.
• 14:57
  Speaker 2: So Louisiana is.
• 14:58
  Speaker 3: Like, hey, you know, you can't continue to act in
• 15:01
  Speaker 3: this national government way without interfering on our power to
• 15:05
  Speaker 3: make abortion illegal. So the state right is now conflicting
• 15:09
  Speaker 3: with the federal power to enact mifipristone. And people like Alito,
• 15:14
  Speaker 3: sure enough, are like, hey, you're undermining by allowing that
• 15:17
  Speaker 3: drug to be shipped to states where abortion is banned.
• 15:20
  Speaker 3: You hear him screaming this, you're undermining the Dobbs opinion. Well,
• 15:25
  Speaker 3: you know, the reality is that we live in a
• 15:27
  Speaker 3: national system, and yes there are states, but the idea
• 15:31
  Speaker 3: that you're going to just coordin these off I think
• 15:33
  Speaker 3: from the beginning this has always been an issue that's
• 15:35
  Speaker 3: going to have one resolution, and the state's rights compromise
• 15:40
  Speaker 3: can't last. You're seeing that also from pro life groups,
• 15:43
  Speaker 3: and ultimately there's going to be a question, I think,
• 15:46
  Speaker 3: not of what states are going to say, but what
• 15:48
  Speaker 3: this government will say. I hope certainly that the right
• 15:51
  Speaker 3: to privacy is affirmed, the right to abortion, but the
• 15:54
  Speaker 3: forces on the other side would like to bring in
• 15:56
  Speaker 3: a different way. Meanwhile, just allow sentence. Donald Trump is
• 15:59
  Speaker 3: pretending I think there's no issue.
• 16:00
  Speaker 2: Don't look over here, you know, I look somewhere else.
• 16:03
  Speaker 2: This isn't a winning issue for him.
• 16:05
  Speaker 1: Well, and before the break, I wanted to ask you
• 16:06
  Speaker 1: about that, because man baby is trying to speak both
• 16:09
  Speaker 1: languages at once. Right states rights to these folks over
• 16:12
  Speaker 1: here and the national anti abortion signaling over here. I mean,
• 16:17
  Speaker 1: it's not legally coherent and it's politically impossible. It's just
• 16:21
  Speaker 1: another sign that Donald Trump doesn't really have any ideology
• 16:24
  Speaker 1: beyond whatever helps me is what I want.
• 16:27
  Speaker 2: I think that's right.
• 16:28
  Speaker 3: You know, I think the idea that he's got some
• 16:31
  Speaker 3: coherent view on abortion, somebody who brags constantly about his
• 16:35
  Speaker 3: you know, sexual libertinism. Then you know, at the same
• 16:40
  Speaker 3: time sometimes pretends to be a serious Christian.
• 16:43
  Speaker 2: What does he really think. He really doesn't think anything.
• 16:45
  Speaker 2: He really thinks.
• 16:46
  Speaker 3: I want to do whatever is going to get me ahead,
• 16:47
  Speaker 3: and oll cater to evangelicals when it serves them, and
• 16:50
  Speaker 3: O cater I'll pretend to be a moderate on abortion
• 16:53
  Speaker 3: when when that serves them, that's it. And I think
• 16:55
  Speaker 3: he was hoping, well, Dobbs was sort of the perfect
• 16:58
  Speaker 3: answer for him. Oh, I can say this state rights thing,
• 17:00
  Speaker 3: I can say democracy.
• 17:03
  Speaker 2: And then in the end, what he's learning is it's
• 17:05
  Speaker 2: much more complicated than that.
• 17:06
  Speaker 3: It's because we have federal laws that okay abortion drugs,
• 17:11
  Speaker 3: and we have state laws that ban it.
• 17:12
  Speaker 2: And I again, I don't think that conflict's going away.
• 17:15
  Speaker 3: And see docket here was used by the liberals this time,
• 17:19
  Speaker 3: and you know, I think I want to actually call
• 17:21
  Speaker 3: that out. You know that usually they're complaining about it. Oddly,
• 17:24
  Speaker 3: you have Alito saying, well, the liberals aren't giving any reasons.
• 17:28
  Speaker 3: It's like, yeah, Supreme Court, give reasons. Don't be relying
• 17:32
  Speaker 3: on this secret process all of you.
• 17:35
  Speaker 1: And I just want to point out that Donald Trump
• 17:36
  Speaker 1: always supported women's reproductive freedoms. He was staunchly, as they say,
• 17:41
  Speaker 1: pro choice for many years until he realized he could
• 17:44
  Speaker 1: gain more power by pretending to be against abortion, pretending
• 17:48
  Speaker 1: to be a conservative, pretending to be a Christian, and
• 17:50
  Speaker 1: pandering to people who watch pro wrestling and then break
• 17:54
  Speaker 1: off into discussion groups. It's all been a con and
• 17:57
  Speaker 1: it's driven up the infant mortality rate. We got to
• 18:00
  Speaker 1: take a quick break. When we come back, let's talk
• 18:02
  Speaker 1: a bit more about the corpse of the voting right.
• 18:04
  Speaker 2: Sack.
• 18:04
  Speaker 1: This is the Oath in the Office. Welcome back to
• 18:15
  Speaker 1: the Oath in the Office. I'm John Fiegelsang, Professor Bretschneider.
• 18:18
  Speaker 1: The Supreme Court has now allowed Alabama to go ahead
• 18:22
  Speaker 1: with elections under their newly redrawn congressional maps, again through
• 18:26
  Speaker 1: the emergency docket, and again with very little explanation. This
• 18:30
  Speaker 1: is a feeding frenzy, and it goes to show that boy,
• 18:33
  Speaker 1: all along, they were going to do exactly what they
• 18:35
  Speaker 1: were going to do. As soon as they got that
• 18:37
  Speaker 1: meddling voting right sack taken away, all the critics have
• 18:39
  Speaker 1: been proven correct. And this follows Louisiana redistricting throwing out
• 18:44
  Speaker 1: thousands have already cast votes amidst these continuing fights over
• 18:47
  Speaker 1: the bra I mean, the Court is just rewriting voting
• 18:51
  Speaker 1: rights law without openly saying so.
• 18:54
  Speaker 3: Right, it's such a good way to put it, John,
• 18:56
  Speaker 3: And we've talked about this Louisiana case that essentially tended
• 19:00
  Speaker 3: that the nineteen sixty five Voting Rights Act remains in place,
• 19:04
  Speaker 3: and yet eviscerates it because what it says is the
• 19:07
  Speaker 3: only way to really rewrite districts in a way that
• 19:10
  Speaker 3: preserves black voting power is if you can show that
• 19:13
  Speaker 3: it's correcting intentional discrimination.
• 19:14
  Speaker 2: That's very, very hard to show.
• 19:16
  Speaker 3: Even as we talked about, even in the travel ban case,
• 19:18
  Speaker 3: the Supreme Court wouldn't admit that the.
• 19:20
  Speaker 2: Muslim ban was a Muslim ban. And so what does
• 19:23
  Speaker 2: it leave us.
• 19:24
  Speaker 3: It leaves us with a green light as long as
• 19:26
  Speaker 3: people don't admit that they're trying to dilute black voting power,
• 19:31
  Speaker 3: as long as they say this is partisan. Jerry mandering
• 19:34
  Speaker 3: partisan rewriting of the borders.
• 19:36
  Speaker 2: They can do whatever they want.
• 19:38
  Speaker 3: And if we had any doubt of that, because the
• 19:40
  Speaker 3: case makes it more ambiguous, the Supreme Court went it
• 19:43
  Speaker 3: not on the shadow docket, went and said, oh, we're
• 19:45
  Speaker 3: not getting rid of the nineteen sixty five Voting Rights
• 19:47
  Speaker 3: Act now that it's implementing that ruling through the shadow docket.
• 19:51
  Speaker 3: And that's why it's so important that we're going to
• 19:53
  Speaker 3: talk to Jody Canter about the details of how this
• 19:56
  Speaker 3: began and how it works, this shadow secret docket.
• 20:00
  Speaker 2: Seeing them say, yeah, do whatever you want.
• 20:02
  Speaker 3: And so Louisiana, you know, Alabama, all of these red
• 20:06
  Speaker 3: states want to rewrite their rules to destroy black voting powers.
• 20:09
  Speaker 2: That's the Court's giving them a green light and not
• 20:11
  Speaker 2: telling us the reason why.
• 20:13
  Speaker 3: They're just you know, keeping it secret. But that's it's
• 20:16
  Speaker 3: stay ocated. In that case they got they essentially got
• 20:19
  Speaker 3: rid of the nineteen sixty five Voting Rights Act.
• 20:21
  Speaker 1: Yeah, it's death by a thousand cuts. I mean, this
• 20:23
  Speaker 1: is a process that John Roberts began with every fiber
• 20:27
  Speaker 1: of his racist or aristocratic, shriveled up blackened heart back in
• 20:31
  Speaker 1: twenty thirteen. I mean, they're weakening the Voting Rights Act
• 20:34
  Speaker 1: incrementally because they don't have the actual manhood to just
• 20:38
  Speaker 1: overturn it outright? Is that fair to say?
• 20:42
  Speaker 2: I think that's right.
• 20:42
  Speaker 3: Clarence Thomas probably would have said, you know, at least
• 20:45
  Speaker 3: Section two is unconstitutional. It conflicts with the meaning of
• 20:48
  Speaker 3: the fifteenth Amendment. That historically is false. But that's the
• 20:52
  Speaker 3: view that Clarence Thomas.
• 20:53
  Speaker 1: Clarence Thomas would sy lemonade at a lynching, wouldn't he'd
• 20:56
  Speaker 1: show up to He'd show up to give pedicures to
• 20:58
  Speaker 1: the lynchers when it was done.
• 21:00
  Speaker 2: Well, you know, I think too.
• 21:01
  Speaker 3: John Roberts, who are going to talk much more about
• 21:03
  Speaker 3: with Jodi Kanter, has this public persona. He's famous, by
• 21:06
  Speaker 3: the way, talking about balls and strikes and judges or umpires.
• 21:11
  Speaker 2: Meanwhile, this guy was.
• 21:12
  Speaker 3: In the Reagan administration and he was from the beginning
• 21:15
  Speaker 3: talking about trying to basically undo the Voting Rights Act
• 21:19
  Speaker 3: from the nineteen eighties.
• 21:20
  Speaker 2: And so the idea that.
• 21:21
  Speaker 3: This is some sort of neutral balls and strikes, you know,
• 21:24
  Speaker 3: person of integrity, I mean, I just don't buy it.
• 21:27
  Speaker 3: And when you read which we'll link to in the
• 21:29
  Speaker 3: show notes, the secret memos from justice. Roberts talking about
• 21:34
  Speaker 3: why it is and this is in a different case,
• 21:36
  Speaker 3: but why it is that he's especially worried about, of
• 21:38
  Speaker 3: all people, all entities, the coal industry. You really see
• 21:42
  Speaker 3: this kind of libertarianism, and that is the philosophy that
• 21:46
  Speaker 3: I'd say it is an extreme libertarianism, not thinking the
• 21:48
  Speaker 3: federal government should intervene with decisions about protecting against racism,
• 21:55
  Speaker 3: not intervening to protect black voting power.
• 21:58
  Speaker 2: That was all.
• 21:58
  Speaker 3: Undermined freedom season and the freedom of the coal industry
• 22:02
  Speaker 3: is another part of his freedom.
• 22:04
  Speaker 2: That he cares about. So the idea that.
• 22:06
  Speaker 3: This is some neutral justice, yes, he's got this public persona,
• 22:10
  Speaker 3: he's giving speech as always about umpires and neutrality. This
• 22:14
  Speaker 3: is not somebody who's operating in that way. And you
• 22:16
  Speaker 3: know what, it It all be conjecture except for the
• 22:19
  Speaker 3: fact that Jody Canter found the good. She showed us
• 22:21
  Speaker 3: the memos as we'll talk about that reveal the true
• 22:24
  Speaker 3: John Roberts. And the other place that we're seeing it
• 22:27
  Speaker 3: certainly is in this voting rights area as well. Well.
• 22:30
  Speaker 1: I'm ready to talk to Jody Canter. Let's take a
• 22:32
  Speaker 1: quick break. We'll be right back. This is the oath
• 22:34
  Speaker 1: and the Office.
• 22:41
  Speaker 4: Heyl Clan Kirshner Here, So, friends, I hope you'll join
• 22:44
  Speaker 4: me on my audio podcast, Justice Matters. You care about
• 22:48
  Speaker 4: ethics and government, criminal justice reform, a conflict free federal judiciary.
• 22:56
  Speaker 4: I thought so. On Justice Matters, we take on issues
• 22:59
  Speaker 4: involving the need to reform our government and its institutions,
• 23:04
  Speaker 4: and we talk about real, achievable reform. I hope you'll
• 23:08
  Speaker 4: join us. Look for Justice Matters wherever you usually get
• 23:12
  Speaker 4: your podcasts.
• 23:18
  Speaker 3: Welcome back to the Oath in the Office. It's my
• 23:20
  Speaker 3: pleasure today to welcome Jody Canter. Jody Canter is a
• 23:24
  Speaker 3: reporter at the New York Times, and it goes without
• 23:26
  Speaker 3: saying that her journalism has really been a shining light
• 23:30
  Speaker 3: into the hidden functioning of the Supreme Court, an institution
• 23:33
  Speaker 3: that we need to know more about and often don't
• 23:36
  Speaker 3: know a lot about how it actually functions. And I'll
• 23:39
  Speaker 3: mention in particular, and we'll talk to her in depth
• 23:41
  Speaker 3: today about her major work on the origins of the
• 23:44
  Speaker 3: what's often called the shadow docket.
• 23:46
  Speaker 2: She's a winner of the Pulitzer Prize.
• 23:48
  Speaker 3: And of course we'll ask her to and I need
• 23:50
  Speaker 3: to mention her new book which is a New York
• 23:53
  Speaker 3: Times bestseller. It's called how to Start Discovering Your Life's Work,
• 23:57
  Speaker 3: A guide for recent graduates, college graduates, and others. Many
• 24:01
  Speaker 3: people listen to this show or in that position, they're
• 24:04
  Speaker 3: going to want to know.
• 24:05
  Speaker 2: How to start.
• 24:05
  Speaker 3: So I look forward to talking about that too, Jody,
• 24:08
  Speaker 3: if you don't mind, will start by asking about a
• 24:11
  Speaker 3: question that really is on all of our minds. Listeners
• 24:14
  Speaker 3: to the show, our guests, we've all been talking about
• 24:17
  Speaker 3: the Shadow Docket. I think our listeners know what it is,
• 24:21
  Speaker 3: but we do have new listeners, and if you wouldn't
• 24:23
  Speaker 3: mind just saying something about what the Shadow Docket is,
• 24:27
  Speaker 3: and also what you're reporting revealed about the origin story
• 24:31
  Speaker 3: of the Shadow Docket. Sometimes the court pretends that it's
• 24:34
  Speaker 3: been doing whether it's the theory of originalism or whatever
• 24:38
  Speaker 3: its work is, that this has been going on since
• 24:41
  Speaker 3: the eighteenth century or something. You, of course, tell a
• 24:43
  Speaker 3: much more recent origin story. So what is it and
• 24:46
  Speaker 3: what did you reveal in your reporting about its origin?
• 24:49
  Speaker 5: Okay? Great, So, first of all, thank you so much
• 24:52
  Speaker 5: for having me on pleasure to be with you. When
• 24:54
  Speaker 5: we think of Supreme Court cases, we think of a
• 24:59
  Speaker 5: slow speed think of deliberation, We think of being very
• 25:03
  Speaker 5: very careful. Your classic Supreme Court case takes a really
• 25:07
  Speaker 5: long time to play out, and there are many, many, many, many,
• 25:10
  Speaker 5: many steps that ensure careful consideration, like rounds of briefs,
• 25:17
  Speaker 5: like oral arguments that, as you know, can go on
• 25:20
  Speaker 5: for quite a long time, many hours, in which the
• 25:24
  Speaker 5: justices really hash out the legal issues with the attorneys
• 25:28
  Speaker 5: and the public can listen in via audio. There are
• 25:32
  Speaker 5: opinions that circulate within the Supreme Court before they become
• 25:36
  Speaker 5: public in draft form, and that's in part so that
• 25:40
  Speaker 5: as the collective they can improve the opinions. They can
• 25:44
  Speaker 5: really think about what they want to say, they can deliberate,
• 25:47
  Speaker 5: they can change their minds. Another step in the process
• 25:50
  Speaker 5: is that for merits cases, or what we think of
• 25:53
  Speaker 5: as classic Supreme Court cases, the justices meet in person
• 25:57
  Speaker 5: to discuss them and vote. They have this meeting called
• 25:59
  Speaker 5: the conference meeting, that is a super confidential meeting. It
• 26:03
  Speaker 5: happens in a special room, at a special table. And
• 26:07
  Speaker 5: the point of all these steps is that they are
• 26:10
  Speaker 5: meant to ensure thoroughness. So let's think of that as
• 26:15
  Speaker 5: like kind of the ideal of Supreme Court decision making.
• 26:19
  Speaker 5: The shadow docket is an alternate track, and it's existed
• 26:23
  Speaker 5: for a long time, but until about ten years ago,
• 26:26
  Speaker 5: it was really used for true emergencies like death penalty
• 26:31
  Speaker 5: cases or election cases that had to be decided immediately.
• 26:35
  Speaker 5: In the last ten years, what we've seen is that
• 26:39
  Speaker 5: the shadow docket has swelled, that the Court is making
• 26:44
  Speaker 5: more and more decisions on this emergency basis. And just structurally,
• 26:50
  Speaker 5: it's not as in depth or slow or careful, and
• 26:54
  Speaker 5: it's much more secretive. It is a rushed, fast track process. Yes,
• 27:00
  Speaker 5: And the reason why so many people have criticized that
• 27:04
  Speaker 5: is that they're really too worries. I mean, first of all,
• 27:07
  Speaker 5: the Court has awarded a tremendous amount of power to
• 27:10
  Speaker 5: President Trump using the emergency docket. Since President Trump returned
• 27:14
  Speaker 5: to office, it's been over twenty cases. And these cases,
• 27:18
  Speaker 5: as I said, like move very very quickly. The justices
• 27:21
  Speaker 5: are skipping some of the time tested steps of deliberation.
• 27:25
  Speaker 5: They're also very secretive. Perhaps the most important step that
• 27:29
  Speaker 5: they often skip is these cases don't really have opinions,
• 27:34
  Speaker 5: they have orders. Some of these if you've never seen one,
• 27:38
  Speaker 5: to picture one of these orders, picture like a paragraph
• 27:41
  Speaker 5: of legal boilerplate. We counted when we wrote about it
• 27:43
  Speaker 5: was one hundred and forty two words. And they don't
• 27:47
  Speaker 5: have any reasoning, like they say such and such. You
• 27:51
  Speaker 5: know the court is going to green light this or
• 27:53
  Speaker 5: red light this. But the essence of how a court
• 27:58
  Speaker 5: gets author already in trust is an opinion. A judge
• 28:03
  Speaker 5: sits down and writes an opinion that is an act
• 28:08
  Speaker 5: of humility and accountability, saying here's how I got to
• 28:14
  Speaker 5: the result that I got to. And you may not
• 28:17
  Speaker 5: like it, you may disagree. This decision may be bad
• 28:20
  Speaker 5: for you personally, but I want you to know that
• 28:23
  Speaker 5: I did it in good faith and I really followed
• 28:25
  Speaker 5: all the steps of the law.
• 28:27
  Speaker 2: So I mean, that is.
• 28:28
  Speaker 5: What the docket is. And then I could then if
• 28:31
  Speaker 5: you want, I thought I should stop for a second,
• 28:33
  Speaker 5: But if you want, I can tell you about the
• 28:34
  Speaker 5: particular sort of scoop and reveal we had about how
• 28:38
  Speaker 5: the shattered docket originated.
• 28:40
  Speaker 2: Yeah.
• 28:40
  Speaker 3: I was going to say also in transition that you know,
• 28:43
  Speaker 3: as you noted, so much of the these recent decisions
• 28:47
  Speaker 3: enabling President Trump, who have been done in secret without
• 28:49
  Speaker 3: any kind of reasoning, and that reveals on the one
• 28:53
  Speaker 3: suspicion is that that reveals the kind of partisanship on
• 28:55
  Speaker 3: the part of the justices, the conservative majority, doing this.
• 28:59
  Speaker 3: And what I wanted to ask you about the origin
• 29:01
  Speaker 3: story is it seems to further excite that worry because
• 29:06
  Speaker 3: its origin seems to be about conservatives blocking a more
• 29:10
  Speaker 3: liberal president. So yeah, tell us that origin story, and
• 29:13
  Speaker 3: maybe you could in the process tell me.
• 29:15
  Speaker 2: I mean, am I right? Is it as bad as
• 29:17
  Speaker 2: it looks in your reporting?
• 29:19
  Speaker 5: So here's what we've been in the paper that felt
• 29:23
  Speaker 5: momentous at least us For a couple of years now,
• 29:28
  Speaker 5: many many, many observers of the court, people like yourself,
• 29:32
  Speaker 5: scholars have been saying, how did the Court start doing this?
• 29:37
  Speaker 5: Like why, like, especially given historically low trust ratings in
• 29:42
  Speaker 5: the court, and given the fact that the Chief Justice
• 29:46
  Speaker 5: really has a reputation for being careful and you know,
• 29:50
  Speaker 5: very conservative but also very deliberate, why would they kind
• 29:55
  Speaker 5: of throw out the time tested judicial playbook and adopt
• 30:00
  Speaker 5: this rushed and secretive new way of doing cases. So
• 30:04
  Speaker 5: they didn't do it, obviously, all in one day. But
• 30:06
  Speaker 5: there's one case that's like really a Hinge case. It's
• 30:09
  Speaker 5: a pivot point, and that is a twenty sixteen case
• 30:12
  Speaker 5: in which the Court blocked Obama's climate change plan. It
• 30:18
  Speaker 5: was really a shocker at the time because the Court
• 30:21
  Speaker 5: stepped in front of the DC Circuit to intervene, which
• 30:25
  Speaker 5: the Court had never done anything like that before, and
• 30:29
  Speaker 5: there was this tiny little order that had no explanation.
• 30:33
  Speaker 5: And so when we look back at like the origins
• 30:35
  Speaker 5: of the modern shadow docket and the origins of the
• 30:37
  Speaker 5: controversy over it, this is like the Signal case. So
• 30:41
  Speaker 5: usually Supreme Court papers are secret for a long time,
• 30:47
  Speaker 5: like generations to come. So I am I think if
• 30:51
  Speaker 5: people are listening to this particular podcast, they might know
• 30:53
  Speaker 5: about this New York Times article already. But I'm just
• 30:56
  Speaker 5: going to say for anyone who missed it that I
• 30:58
  Speaker 5: am really happy to tell you that Adam Liptak and
• 31:00
  Speaker 5: I put sixteen pages of the Justice's internal correspondence into
• 31:07
  Speaker 5: the paper, allowing you and anybody else in the world
• 31:11
  Speaker 5: to finally see the reasoning behind this decision, which the
• 31:14
  Speaker 5: Court never shared, and to literally see the origins of
• 31:18
  Speaker 5: the shadow docket. With these papers, we can eavesdrop and
• 31:21
  Speaker 5: witness the justices backing into this new way of doing things,
• 31:27
  Speaker 5: like literally the moment of the decision where they're saying, yeah,
• 31:32
  Speaker 5: we usually like we've always done it this way, but
• 31:34
  Speaker 5: now we're going to do it. Now, We're going to
• 31:35
  Speaker 5: do it this way. So to your question about like
• 31:38
  Speaker 5: does this reveal a totally part is in court? I
• 31:42
  Speaker 5: think what I definitely reveals a part isn't divide in
• 31:45
  Speaker 5: the case, right. I mean, the conservatives are rearing to
• 31:47
  Speaker 5: go and the liberals are truly worried about what's happening.
• 31:53
  Speaker 5: The figure who really leaps out is Chief Justice John Roberts,
• 31:57
  Speaker 5: because he's cultive this reputation, as I said, for you know,
• 32:06
  Speaker 5: being very deliberative, being very careful. He's talked about being
• 32:10
  Speaker 5: a minimalist and only calling balls and strikes. And the
• 32:14
  Speaker 5: figure who and he doesn't say much in public, right,
• 32:17
  Speaker 5: this is like not a person who gives regular interviews.
• 32:20
  Speaker 5: The person in the papers comes across as a really
• 32:23
  Speaker 5: different jurist. He's super duper in a rush, like he's moving.
• 32:28
  Speaker 5: This whole thing is a flurry of five days of
• 32:30
  Speaker 5: It's like five days that changes the Supreme Court. They're
• 32:34
  Speaker 5: moving very very fast. He from his very first memo,
• 32:37
  Speaker 5: he's like a bulldozer. He comes on very strong. He
• 32:40
  Speaker 5: wants it the way he wants it, and he doesn't.
• 32:43
  Speaker 5: There is some back and forth among the justices, but
• 32:46
  Speaker 5: when the liberal justices raise like pretty common sense procedural objections,
• 32:52
  Speaker 5: they're saying, I've never done this before, We're uncomfortable. Why
• 32:55
  Speaker 5: the rush, he's very dismissive. And it also turns out
• 33:00
  Speaker 5: that he's in a power struggle with the Obama administration
• 33:04
  Speaker 5: and particularly the EPA. He feels that the Court was
• 33:07
  Speaker 5: sidelined in a previous EPA case and he doesn't want
• 33:13
  Speaker 5: that to happen again. So it's not like I want
• 33:17
  Speaker 5: to be careful. People should look at it themselves and
• 33:19
  Speaker 5: see what they think. It's not the kind of rank
• 33:22
  Speaker 5: partisanship where you know, the justice where like the conservative
• 33:26
  Speaker 5: justices are saying like, great, we now get to, you know,
• 33:31
  Speaker 5: like enact our anti regulatory agenda. What I would say
• 33:37
  Speaker 5: the standout is is that it's nobody's idea of like
• 33:42
  Speaker 5: really first class liberation.
• 33:46
  Speaker 3: It's not legal thinking the way that the justices need
• 33:49
  Speaker 3: to display when they're doing asking questions in oral argument
• 33:53
  Speaker 3: or writing opinions.
• 33:55
  Speaker 2: And yeah, that's something to dig into.
• 33:57
  Speaker 3: More is well, what does it reveal and one thing
• 34:00
  Speaker 3: that you've told us, which I think does jump out
• 34:02
  Speaker 3: at you, is that this balls and strikes neutrality that
• 34:05
  Speaker 3: Roberts portrays.
• 34:06
  Speaker 2: That's not what's going on behind the scenes. And it
• 34:09
  Speaker 2: might be obvious with just.
• 34:10
  Speaker 5: For lit one in one case, like I just feel
• 34:13
  Speaker 5: the need to save fairness. It's very, very very rare
• 34:16
  Speaker 5: to see these kinds of papers, right, Like this is
• 34:21
  Speaker 5: one example in years and years and years the Chief
• 34:25
  Speaker 5: Justice's writings. For all we know there is.
• 34:27
  Speaker 2: Like, right, there's a bad moment or something.
• 34:30
  Speaker 5: Well, there could be five x or ten x the
• 34:33
  Speaker 5: material in which he is that cautious figure.
• 34:36
  Speaker 3: We're going to ask you about what it portrays about him,
• 34:38
  Speaker 3: because it does strike me as such a huge contrast
• 34:42
  Speaker 3: from this public persona when I was reading the sort
• 34:45
  Speaker 3: of sympathy for the coal industry and for industry, the
• 34:48
  Speaker 3: worry about cost. You know, those are not the way
• 34:53
  Speaker 3: that conservative justices who focus on the text of the
• 34:56
  Speaker 3: Constitution or its original meaning or the me meaning of statutes.
• 35:01
  Speaker 3: It's really seems to be not just a straightforward policy
• 35:04
  Speaker 3: one worry about an administration doing regulation.
• 35:08
  Speaker 2: I mean, am I reading it wrong? I mean that's
• 35:11
  Speaker 2: what j.
• 35:11
  Speaker 5: I'm saying about he comes across as extremely skeptical of
• 35:14
  Speaker 5: regulation and it's interesting, you know that, so like not
• 35:18
  Speaker 5: to get too technical, but the term irreparable harm comes
• 35:21
  Speaker 5: up in these decisions because the standard for moving quickly
• 35:26
  Speaker 5: is like, oh, is there going to be some irreparable harm?
• 35:30
  Speaker 5: That provides a rationale for moving quickly, like meaning if
• 35:34
  Speaker 5: we didn't do this thing, would there be some irreparable harm?
• 35:37
  Speaker 5: And he talks about irreparable harm to the coal industry,
• 35:43
  Speaker 5: to the state. Nobody, none of the justices mentions irreparable
• 35:48
  Speaker 5: harm to the climate, like basically what Alma was trying
• 35:52
  Speaker 5: to do. And by the way, again for fairness, there
• 35:56
  Speaker 5: was a real legal question about whether the Obama administration
• 36:01
  Speaker 5: was within the boundaries of the Clean Air Act, like
• 36:04
  Speaker 5: were their actions awful? Tru legal debate there they were
• 36:09
  Speaker 5: pushing it right and differents has felt things broke down
• 36:13
  Speaker 5: along partisan lines basically about the merits stage of the case.
• 36:19
  Speaker 5: But what we see is a Chief Justice who is
• 36:25
  Speaker 5: extremely concerned about what's going to be expensive for industry
• 36:29
  Speaker 5: and states. In fact, like Justice Brier, who's always been
• 36:32
  Speaker 5: a close ally of the Chief says what's the rush,
• 36:36
  Speaker 5: Like why would we do this, and the chief's answer
• 36:39
  Speaker 5: is we have to move quickly because this is the
• 36:42
  Speaker 5: most expensive regulation that has ever been imposed.
• 36:48
  Speaker 2: On the I mean, that is what leaps out at me.
• 36:50
  Speaker 3: I mean, if it was a behind the scenes look
• 36:52
  Speaker 3: at sort of the blunt way they talk about their
• 36:54
  Speaker 3: own judicial philosophies, I could imagine Robert saying, Wow, this
• 36:58
  Speaker 3: is a blatant disregard of the text of the.
• 37:01
  Speaker 2: Clean Air Act, and this is an instance in which.
• 37:04
  Speaker 3: The EPA is surping its authority and threatening constitutional governance
• 37:09
  Speaker 3: because this is really the domain of the legislature and
• 37:11
  Speaker 3: there's no delegation of power something like that.
• 37:14
  Speaker 2: That's emphatic.
• 37:15
  Speaker 3: Okay, that wouldn't have been as careful maybe as what
• 37:18
  Speaker 3: you get in public. But instead, I guess what I'm
• 37:20
  Speaker 3: reading is a kind of blunt libertarianism, which is that
• 37:24
  Speaker 3: there is an excessive regulation that's going to be high cost,
• 37:27
  Speaker 3: and not the kind of reasoning that you usually get
• 37:30
  Speaker 3: from a justice who claims allegiance to you know, textual interpretation.
• 37:35
  Speaker 2: So that, I guess is why I was thinking.
• 37:37
  Speaker 3: Not partisanship in the sense of, you know, for against
• 37:41
  Speaker 3: one party, but a kind of partisan libertarianism.
• 37:44
  Speaker 2: These are the politics that I care about.
• 37:46
  Speaker 3: This is the policy views that I hold, and that
• 37:49
  Speaker 3: is something that some justices over time. Justice Holmes for instance,
• 37:52
  Speaker 3: said let's just do policy, and sometimes you do hear
• 37:54
  Speaker 3: that from Justice Bryer. But the whole basis of modern conservatism,
• 38:00
  Speaker 3: it is supposed to be this allegiance.
• 38:01
  Speaker 2: To the text and it's neutrality.
• 38:03
  Speaker 3: It's not about policy, and I guess that's what really
• 38:06
  Speaker 3: grabbed me and reporting, And although you're being careful about it,
• 38:09
  Speaker 3: I guess I don't hear you dissuading me from that
• 38:12
  Speaker 3: idea that Roberts really is not doing what we think
• 38:15
  Speaker 3: of as law here, but as a kind of policy.
• 38:17
  Speaker 3: But there might be more to it, or a more
• 38:19
  Speaker 3: sympathetic justification.
• 38:22
  Speaker 5: Well, what I was going to say is that I
• 38:24
  Speaker 5: think the biggest like a lot of people have asked
• 38:27
  Speaker 5: the question, there have been different readings of the papers.
• 38:31
  Speaker 5: I mean, not surprisingly, it's broken down along partisan lines.
• 38:34
  Speaker 5: There are many many people who've had the exact same
• 38:37
  Speaker 5: interpretation as you did. There are other people who have
• 38:41
  Speaker 5: focused on the fact that there was a real legal
• 38:45
  Speaker 5: issue with like whether a Clean Air Act authorized the
• 38:49
  Speaker 5: Obama law. The Obama administration was leaning pretty heavily on
• 38:54
  Speaker 5: like a you know, kind of obscure provision of the
• 38:57
  Speaker 5: Clean Air Act. But what No, No, I haven't heard
• 39:02
  Speaker 5: a good explanation on the right for the rush or
• 39:08
  Speaker 5: the lack of transparency, particularly the lack of transparency you know,
• 39:15
  Speaker 5: as you know, Justice Kavanaugh has defended the courts handling
• 39:19
  Speaker 5: of the emergency docket to some degree, But in the commentary,
• 39:23
  Speaker 5: I have not heard I maybe I missed something, but
• 39:26
  Speaker 5: I have not personally heard anyone, even on the right,
• 39:30
  Speaker 5: say yeah, that's totally fine to be big moved without
• 39:36
  Speaker 5: issuing opinions. I think that is a major thing to
• 39:42
  Speaker 5: focus on again, because I mean, listen, Corey, I'm not
• 39:45
  Speaker 5: a like, I'm a law school dropout, right. I'm a proxy.
• 39:50
  Speaker 5: I'm not a law professor type. I am a proxy
• 39:54
  Speaker 5: for the everyday reader who wants to ask common sense
• 39:58
  Speaker 5: questions of the Supreme Court. And I think a powerful
• 40:03
  Speaker 5: common sense question is court's issue opinions. That's how courts
• 40:09
  Speaker 5: protect their authority, even if your views are very conservative,
• 40:14
  Speaker 5: like don't you want to win people over, Don't you
• 40:17
  Speaker 5: want people to buy in to what you're saying. Don't
• 40:22
  Speaker 5: you want to preserve your own authority. So like, here
• 40:26
  Speaker 5: is where we get I think, beyond our reporting and
• 40:29
  Speaker 5: into like, you know, a realm of psychology that is
• 40:34
  Speaker 5: very hard to touch as a reporter. But we can
• 40:36
  Speaker 5: ask the question even if we can't answer it, which
• 40:38
  Speaker 5: is like, okay, Chief Justice John Roberts, given that the
• 40:43
  Speaker 5: use of the shadow docket has so greatly expanded over
• 40:47
  Speaker 5: the course of your tenure, given that there are so
• 40:50
  Speaker 5: many important decisions that the Court hasn't explained, how do
• 40:55
  Speaker 5: you justify that? And what effect do you think it
• 40:58
  Speaker 5: is having on public trial?
• 41:01
  Speaker 2: Right?
• 41:02
  Speaker 3: Yeah, I mean I should say you're being extremely modest.
• 41:05
  Speaker 3: Of course, you've done more to explain what's actually going
• 41:09
  Speaker 3: on with this court than I think years and years
• 41:12
  Speaker 3: of scholarship.
• 41:13
  Speaker 2: You know, a common way to study the.
• 41:14
  Speaker 3: Court is to praise the justices or to take their
• 41:18
  Speaker 3: words at face value. And I think what this reporting
• 41:21
  Speaker 3: shows in a really deep way is that there is,
• 41:23
  Speaker 3: of course the politics of the court that's going on.
• 41:26
  Speaker 3: We've known that, but what it is we haven't known,
• 41:28
  Speaker 3: and now we do know it. So I mean that sincerely,
• 41:31
  Speaker 3: you have taught us a great deal way more than
• 41:35
  Speaker 3: certainly most law professors or political scientists could teach us,
• 41:39
  Speaker 3: So thank you for that. I mean, I do want
• 41:41
  Speaker 3: to transition as a way of getting into your question.
• 41:44
  Speaker 3: You're really deep, deep question here about what happens when
• 41:48
  Speaker 3: this court writes opinions as opposed to what they do
• 41:52
  Speaker 3: in secret. And one worry is there too that I'm
• 41:56
  Speaker 3: not convinced about their genuineness.
• 41:59
  Speaker 2: And I know that in.
• 42:00
  Speaker 3: Particular, you and Adam Liptak did some amazing reporting on
• 42:04
  Speaker 3: the immunity case, which we've often focused on Trump versus
• 42:07
  Speaker 3: the United States, and so I wanted to ask you
• 42:10
  Speaker 3: about that case and going at the same time go
• 42:13
  Speaker 3: deeper into the views or even psychology of Justice Roberts
• 42:18
  Speaker 3: in particular, because he does present himself as wanting unity,
• 42:22
  Speaker 3: wanting to be neutral. And yet what stands out to
• 42:25
  Speaker 3: me about this case, and you know I give my
• 42:29
  Speaker 3: opinions bluntly and freely, so I'll just say is that
• 42:32
  Speaker 3: it really is crafted out of thin air. That there
• 42:35
  Speaker 3: is a precedent that they rely heavily on about Richard
• 42:39
  Speaker 3: Nixon firing of Richard Nixon in a civil immunity that
• 42:43
  Speaker 3: he was given the Fitzgerald case for this firing. And
• 42:48
  Speaker 3: yet you know, it's a totally different question than January sixth,
• 42:51
  Speaker 3: the destruction of our democracy and a criminal case, by
• 42:55
  Speaker 3: the way, not just any kind of crime, but the
• 42:57
  Speaker 3: crime that is linked to a possible coup. And yet
• 43:00
  Speaker 3: here Roberts is, you know, acting in public as though
• 43:03
  Speaker 3: he's got this carefully crafted opinion.
• 43:06
  Speaker 2: So what's going on?
• 43:07
  Speaker 3: I mean, what is your reporting about Roberts in the
• 43:10
  Speaker 3: court generally, when I mean the dissenters, the liberals have
• 43:14
  Speaker 3: been willing to say Trump is a threat to democracy?
• 43:17
  Speaker 3: What is going on in the understanding of John Roberts
• 43:20
  Speaker 3: and Donald Trump?
• 43:21
  Speaker 2: Is it? I mean?
• 43:22
  Speaker 3: Here again, you know, I just have to, as I
• 43:24
  Speaker 3: exclude other possibilities, I think, well, it looks like a
• 43:28
  Speaker 3: kind of sympathy or partisanship, and no, he's not really
• 43:31
  Speaker 3: that bad or so what to help me here? Helped
• 43:34
  Speaker 3: me when we when we look in particular Trump versus
• 43:36
  Speaker 3: the United States.
• 43:38
  Speaker 5: Well thank you, and also I'm glad you mentioned Adam.
• 43:40
  Speaker 5: I meant to say his name about ten times on
• 43:43
  Speaker 5: the podcast. He's my reporting partner and also my teacher
• 43:47
  Speaker 5: when it comes to a lot of Supreme Court matters.
• 43:49
  Speaker 5: So yeah, So a couple weeks after the immunity decision,
• 43:54
  Speaker 5: came out. Adam and I published a story taking readers
• 43:57
  Speaker 5: behind the scenes, and there were some really clear there
• 44:01
  Speaker 5: were two clear questions to ask about that decision, just
• 44:06
  Speaker 5: to refresh the memory of anybody who's you know, has
• 44:10
  Speaker 5: like an understandable fog about all these different Tumps. This
• 44:13
  Speaker 5: was actually before the presidential election. President Trump was going
• 44:18
  Speaker 5: to be held criminally accountable. He was going to be
• 44:21
  Speaker 5: tried for what he did on January sixth. There was
• 44:25
  Speaker 5: a huge legal fight, which we won't go into here about,
• 44:28
  Speaker 5: you know, whether he could be tried or not. Like essentially,
• 44:32
  Speaker 5: he petitioned the court. He appealed a decision made by
• 44:36
  Speaker 5: the d C. Circuit that said, you know, of course
• 44:39
  Speaker 5: he can be tried for these things. It went up
• 44:41
  Speaker 5: to the Supreme Court. The whole thing was super sensitive
• 44:46
  Speaker 5: because it was like running up against a presidential election,
• 44:50
  Speaker 5: So even relatively small procedural matters like well, what's the
• 44:54
  Speaker 5: timing of how this is all going to be decided like,
• 44:56
  Speaker 5: got very very hot, And in the end the court
• 45:01
  Speaker 5: awarded President Trump, this is a few months before the
• 45:04
  Speaker 5: presidential election, way more immunity than most legal experts thought
• 45:10
  Speaker 5: they would. So the two big questions about this decision
• 45:14
  Speaker 5: were whoa had they end up giving him such broad immunity,
• 45:18
  Speaker 5: like kind of even more than his lawyers asked for.
• 45:23
  Speaker 5: And then second the decision, as you say, was scholars
• 45:28
  Speaker 5: almost across the board thought this decision didn't really like
• 45:32
  Speaker 5: work as a piece of legal reasoning, that it was disjointed,
• 45:35
  Speaker 5: that it was messy, that there were holes. It raised
• 45:38
  Speaker 5: as many questions as it answered. There was a lot
• 45:41
  Speaker 5: of worry about like whoa does this decision like legitimate
• 45:46
  Speaker 5: bribery by a president? And especially since we know that
• 45:51
  Speaker 5: the Chief Justice who wrote the decision has a reputation
• 45:55
  Speaker 5: as a really solid judicial craftsman. That was question number
• 45:59
  Speaker 5: two is like why is this not a more well
• 46:01
  Speaker 5: constructed decision, even you know, for people who disagree with it.
• 46:06
  Speaker 5: So what we found and this was also like very
• 46:09
  Speaker 5: sensitive reporting in which we were able to obtain some
• 46:13
  Speaker 5: information internally from the Supreme Court. It was a little
• 46:18
  Speaker 5: bit similar to the shadow dock at reporting. We talked
• 46:21
  Speaker 5: about where the Chief Justice like was holding the ball,
• 46:26
  Speaker 5: and he came out of the gate really strongly like
• 46:30
  Speaker 5: he had he had very definite views about how this
• 46:35
  Speaker 5: should all go down. And what he I think was
• 46:39
  Speaker 5: trying to do was not deal so much with the
• 46:44
  Speaker 5: trumpness of it all, but write a decision for the ages.
• 46:50
  Speaker 5: You know, like the opinion is like, you know, like
• 46:54
  Speaker 5: has all this like soaring rhetoric about like George Washington
• 46:57
  Speaker 5: and a vigorous presidency, And he was trying to Like
• 47:03
  Speaker 5: what we see in the opinion and in the reporting
• 47:05
  Speaker 5: is that he was attempting to kind of like glide
• 47:08
  Speaker 5: over politics and write something very far reaching. But the
• 47:13
  Speaker 5: response of many people was like, you're not really dealing
• 47:19
  Speaker 5: with like the thing you described, like the grave crisis
• 47:24
  Speaker 5: provoked the January sixth insurrection, like this presidential this former
• 47:30
  Speaker 5: president and presidential candidate tried to overturn an election, and
• 47:34
  Speaker 5: like the if you're not accountable for that under the law,
• 47:38
  Speaker 5: like how do we go forward as a country. So
• 47:43
  Speaker 5: you see the Chief Justice's reluctance to deal with that
• 47:47
  Speaker 5: glaring issue. And then what's also interesting is you see
• 47:50
  Speaker 5: the other conservative justices like sort of egging him on.
• 47:54
  Speaker 5: We obtained some bits of their response is internally to
• 47:58
  Speaker 5: the Chief Justice and like here is he's the Chief
• 48:02
  Speaker 5: Justice has written this decision that's about to be like
• 48:04
  Speaker 5: massively criticized, But inside the Court. There's like total backslapping
• 48:08
  Speaker 5: going on, and Justice Kavanaugh and Justice Gorsic are telling
• 48:14
  Speaker 5: the Chief Justice, this is a brilliant opinion. This is amazing, incredible.
• 48:18
  Speaker 5: It feels like they're egging him on, or you know,
• 48:23
  Speaker 5: kind of pumping him up.
• 48:25
  Speaker 3: Yeah. When I read those congratulatory notes, you know, in
• 48:28
  Speaker 3: the midst of what I would have assumed, they would
• 48:31
  Speaker 3: have understood how much this opinion is going to be criticized.
• 48:34
  Speaker 3: And you know, he leaves exceptions there, and it's immunity
• 48:38
  Speaker 3: for outside the core areas of executive power. It's presumptive immunity,
• 48:44
  Speaker 3: it can be overcome. It's within the outer perimeter of
• 48:47
  Speaker 3: official duty. And yet what you get from those memos
• 48:51
  Speaker 3: is the sense that you know, this was an obvious decision,
• 48:54
  Speaker 3: not because it's subtle, but because it defended our guy.
• 48:57
  Speaker 3: Maybe I'm going too far and you didn't read it
• 48:59
  Speaker 3: that way.
• 49:01
  Speaker 5: In my work, I really try not to be in
• 49:03
  Speaker 5: the justice's heads.
• 49:05
  Speaker 2: I just just reported out.
• 49:07
  Speaker 5: Yeah, just out of reportorial restraint, we don't know. And
• 49:10
  Speaker 5: then also remember that there was another concern at the
• 49:13
  Speaker 5: same time, which is that Trump was going to be
• 49:16
  Speaker 5: elected and try to prosecute Biden. So what conservatives have
• 49:20
  Speaker 5: said is like God, is this is the court trying
• 49:24
  Speaker 5: to protect Biden from being prosecuted inappropriately. So last question
• 49:32
  Speaker 5: about this do you only know when I reported about
• 49:35
  Speaker 5: what they thought.
• 49:36
  Speaker 3: My last question about this, and it does tie back
• 49:38
  Speaker 3: to our great conversation about the shadow docket, is about timing.
• 49:42
  Speaker 3: You know, here he had to know that intervening in
• 49:45
  Speaker 3: the case although you know it never resolved the question
• 49:48
  Speaker 3: of whether or not there is immunity for January sixth,
• 49:50
  Speaker 3: and maybe this isn't. Trump is going to have to
• 49:52
  Speaker 3: show it's somehow official duty. And you know that was
• 49:55
  Speaker 3: what they were prepared to do, but we didn't get
• 49:57
  Speaker 3: It's not like the opinion says Trump is.
• 50:00
  Speaker 2: In the end, they give a set of standards.
• 50:02
  Speaker 3: They sent it back, but they do, for all intents
• 50:06
  Speaker 3: and purposes, clear the way for Trump to run for office,
• 50:09
  Speaker 3: and once he wins, you know, nothing is happening of
• 50:12
  Speaker 3: course with that case, with this Department of Justice. So
• 50:15
  Speaker 3: I mean, what about that kind of worry that the
• 50:18
  Speaker 3: sort of logic and I'm trying to put it in
• 50:20
  Speaker 3: as careful a way as I can, but that they
• 50:23
  Speaker 3: had to realize that they were intervening in a way
• 50:25
  Speaker 3: that did clear the path for him to run for
• 50:28
  Speaker 3: and possibly win the presidency. And isn't that a kind
• 50:31
  Speaker 3: of well, non lawyally non judicial way of thinking.
• 50:36
  Speaker 5: I mean, you are really getting at why we are
• 50:38
  Speaker 5: stepping up our reporting on the Supreme Court. You know,
• 50:41
  Speaker 5: I'm not the only player at the times here. We
• 50:43
  Speaker 5: now have a five person So like the past was
• 50:47
  Speaker 5: these heroic, incredible reporters like Linda Greenhouse and I'm love
• 50:51
  Speaker 5: Tech took kind of sole responsibility for covering the Supreme Court, huge,
• 50:56
  Speaker 5: huge job. The service they performed, which is essential is
• 51:00
  Speaker 5: explaining the cases and arguments and decisions. But we've recently
• 51:06
  Speaker 5: built on that and we're going further. And it's me,
• 51:09
  Speaker 5: it's Adam, it's ros Helderman, our editor, it's Anne Merrimou,
• 51:14
  Speaker 5: it's Abby van Sickle. We each perform a different functions,
• 51:17
  Speaker 5: but we really work together as a group, and we're
• 51:19
  Speaker 5: trying to ask some of the big questions about the
• 51:22
  Speaker 5: Supreme Court. And you're alluding to a very important one,
• 51:26
  Speaker 5: which is is the public version of these cases the
• 51:30
  Speaker 5: same as the private version. There is a story we
• 51:33
  Speaker 5: hear in the oral arguments and in the opinions. On
• 51:37
  Speaker 5: some cases, that's like the same thing that happened in private.
• 51:41
  Speaker 5: There's no real interesting differential. On some cases, there's a
• 51:47
  Speaker 5: gap between the public explanation of how the law was
• 51:50
  Speaker 5: decided and what really happened and the timing concerns that
• 51:55
  Speaker 5: you're talking about. I think are in that category glory
• 52:00
  Speaker 5: of things that the justices consider privately but don't discuss publicly.
• 52:05
  Speaker 5: I know that, for example, because Adam and I did
• 52:08
  Speaker 5: a behind the scenes story about the Dobs case that
• 52:11
  Speaker 5: overturned Row, and the justices were heavily weighing timing considerations.
• 52:17
  Speaker 5: You know, there was also a lot of speculation if
• 52:20
  Speaker 5: we want to actually do something current about the Voting
• 52:23
  Speaker 5: Rights Act case, which launched, you know, a whole new
• 52:27
  Speaker 5: round of redistricting wars. And so you know, given that
• 52:33
  Speaker 5: the justices are making this decision in the middle of
• 52:37
  Speaker 5: this chaos over redistricting and know that their timing is
• 52:42
  Speaker 5: going to have a lot of influence relative to election day,
• 52:46
  Speaker 5: how do they think through that? And you're right, and
• 52:48
  Speaker 5: like it's interesting because like how can they not like
• 52:52
  Speaker 5: they're you know, citizens of planet Earth. But as you say,
• 52:56
  Speaker 5: it's an extra judicial factor it's not part of a
• 52:59
  Speaker 5: stray legal calculation.
• 53:02
  Speaker 3: Yeah, I mean, isn't part of it too? Just looking
• 53:03
  Speaker 3: at the history of these justices. They don't come, you know,
• 53:06
  Speaker 3: to us fresh once they're nominated. They have long histories
• 53:09
  Speaker 3: and commitments, and many of them Roberts included, associated with
• 53:13
  Speaker 3: the Republican Party in the Reagan administration in particular. So
• 53:17
  Speaker 3: is that part of it that what we're seeing in
• 53:19
  Speaker 3: these behind the scenes is reveal of yeah, a longstanding partisan,
• 53:24
  Speaker 3: they might say their philosophical commitments.
• 53:27
  Speaker 5: But it has changed.
• 53:29
  Speaker 2: You know.
• 53:29
  Speaker 5: One thing that was so educational about doing this twenty
• 53:32
  Speaker 5: sixteen story is that we spoke to people who were,
• 53:36
  Speaker 5: you know, knowledge of the deliberations at the time, and
• 53:40
  Speaker 5: they really described this court as a different place in
• 53:44
  Speaker 5: twenty sixteen, even though I mean the composition was somewhat different,
• 53:48
  Speaker 5: not entirely, but even though that court leaned conservative, the
• 53:53
  Speaker 5: court felt very alive with debate that Justice Anthony Kennedy
• 53:57
  Speaker 5: was a true swing vote, that there there's a genuine
• 54:01
  Speaker 5: sense of suspense inside the building about which way cases
• 54:05
  Speaker 5: would come out.
• 54:07
  Speaker 2: Very interesting and it is not that.
• 54:09
  Speaker 5: And in a decade that has really changed.
• 54:12
  Speaker 2: Well.
• 54:12
  Speaker 3: Linked to the story so that, as you said, people
• 54:14
  Speaker 3: can read these amazing memos for themselves. And of course,
• 54:17
  Speaker 3: what a rare important moment actually for democracy to have
• 54:21
  Speaker 3: them revealed, to see these primary sources rather than guessing
• 54:25
  Speaker 3: what's going on behind the scenes, or worse, just taking
• 54:28
  Speaker 3: the opinions and the public presentation of justices as empires,
• 54:32
  Speaker 3: you know, baseball umpires of face value.
• 54:35
  Speaker 2: I'm anxious to ask you about your book.
• 54:37
  Speaker 3: Of course, there are listeners to this podcast who are
• 54:40
  Speaker 3: recent graduates. I'll mention the name again, how to start
• 54:44
  Speaker 3: discovering your life's work.
• 54:46
  Speaker 2: Tell us about it, you know.
• 54:47
  Speaker 3: I mean, I'll throw one thing in as a transition,
• 54:49
  Speaker 3: which is I just know from students, and I'm so
• 54:53
  Speaker 3: inspired by so many of them that although they're worried
• 54:55
  Speaker 3: about the future of the economy, you know, a lot
• 54:58
  Speaker 3: of them are devoted to wanting to fight threats to democracy,
• 55:03
  Speaker 3: to seeing the rise of authoritarianism in the United States
• 55:05
  Speaker 3: and doing.
• 55:06
  Speaker 2: Something about it. So I mean, tell us about the
• 55:09
  Speaker 2: book and tell.
• 55:09
  Speaker 3: Us, you know, what can I It's a very practical
• 55:11
  Speaker 3: question for me, like what can I tell people who
• 55:14
  Speaker 3: really want to know, Like what can I do to
• 55:16
  Speaker 3: save democracy? To make the world better, and you know
• 55:18
  Speaker 3: they mean it. I think, especially at that age, absolutely
• 55:22
  Speaker 3: the worst.
• 55:22
  Speaker 2: Thing would be to not have a good answer. So
• 55:24
  Speaker 2: I'm looking to you for one.
• 55:26
  Speaker 5: Well, I'll tell you how the book started, and then
• 55:29
  Speaker 5: I'll tell you the most important thing in it. So
• 55:31
  Speaker 5: this was like really unexpected. As we have established, Corey,
• 55:36
  Speaker 5: I am really busy with my Supreme Court.
• 55:38
  Speaker 2: I did not plan. I'm like doing a.
• 55:40
  Speaker 5: Whole other thing on earthing secret memos from the Supreme Court.
• 55:45
  Speaker 5: But what happened is that in February of twenty twenty five, Columbia,
• 55:49
  Speaker 5: my alma mater, asked me to give the undergraduate commencement address,
• 55:53
  Speaker 5: a huge honor. But your listeners will remember what was
• 55:58
  Speaker 5: happening at Columbia. It was like total meltdown and toxicity.
• 56:02
  Speaker 5: So it was kind of a bad offer. And my
• 56:05
  Speaker 5: friends from college were very protective. They were like, you're
• 56:10
  Speaker 5: going to get booed, don't go callin se But something
• 56:14
  Speaker 5: in me was like give me those kids. For fifteen minutes.
• 56:17
  Speaker 5: I was just so upset to see like how far
• 56:22
  Speaker 5: down the place had slid, and wanted a chance to
• 56:25
  Speaker 5: say something to the graduating class. And then they asked
• 56:28
  Speaker 5: me an incredible question, you know, like I love hard questions,
• 56:32
  Speaker 5: and this is one of the best ones I've ever heard.
• 56:34
  Speaker 5: They said, in this crazy environment, how do we find
• 56:37
  Speaker 5: and start our life's work? And their question gripped me because,
• 56:42
  Speaker 5: I mean, it's very similar to the question you just
• 56:44
  Speaker 5: asked about your students. And also, I've covered employment for
• 56:47
  Speaker 5: most of my career, like my partner Meg and Twey,
• 56:50
  Speaker 5: and I broke the Harvey Weinstein story. I've reported for years.
• 56:53
  Speaker 5: I've reported stories about the digital transformation of the workplace
• 56:58
  Speaker 5: and what it's like to be managed by machines and
• 57:00
  Speaker 5: the effect it has on relationships and the employer employee relationship,
• 57:05
  Speaker 5: and so I really wanted to give them something good.
• 57:09
  Speaker 5: I saw the rising cynicism about the workplace, the dread,
• 57:14
  Speaker 5: the fear. I saw that, you know, seeking work has
• 57:17
  Speaker 5: become a very lonely endeavor. It was always anxiety producing,
• 57:22
  Speaker 5: but it used to be more of a social process,
• 57:25
  Speaker 5: involving like coffees and handshakes and interesting encounters. Job applications
• 57:30
  Speaker 5: have become very digital, very sterile, very lonely. First round
• 57:35
  Speaker 5: screening is taking place more and more by AI. So
• 57:39
  Speaker 5: AI is performing interviews and so in addition to it
• 57:42
  Speaker 5: being a rough job market for entry level workers, like
• 57:47
  Speaker 5: their first encounter where the workplace is so lonely and negative,
• 57:52
  Speaker 5: they're seeing things to me like Jody, I applied for
• 57:54
  Speaker 5: one hundred and fifty jobs and I didn't meet anybody
• 57:58
  Speaker 5: in the process, and like this is a black box
• 58:02
  Speaker 5: and I can't even get any feedback, you know, or
• 58:04
  Speaker 5: tell how I'm being received. So I wrote this book
• 58:09
  Speaker 5: essentially as an argument to fight for your ambitions and
• 58:12
  Speaker 5: dreams and to still have belief in the workplace, not
• 58:15
  Speaker 5: like a blind optimistic belief, but at a time when
• 58:19
  Speaker 5: we see so many parts of our political system failing
• 58:22
  Speaker 5: or feel very stuck, I still believe that the workplace
• 58:27
  Speaker 5: is our engine of progress. Like, we can't afford to
• 58:32
  Speaker 5: give up on the workplace. It's you know, it's it's
• 58:36
  Speaker 5: how we do new things, it's how we move forward.
• 58:39
  Speaker 5: And so that goes to your second question, which is, like,
• 58:42
  Speaker 5: what is the most important thing to tell people? The
• 58:45
  Speaker 5: most important thing to tell people? And I will read
• 58:48
  Speaker 5: you the most important paragraph in this book. Do not
• 58:51
  Speaker 5: give up before you start, because like I'm talking to
• 58:55
  Speaker 5: undergrads and recent grads who are writing off any possibility
• 59:00
  Speaker 5: for achievement or happiness in the workplace too early, before
• 59:04
  Speaker 5: they're really in the game. And I understand that it's
• 59:08
  Speaker 5: tough out there. I'm a reporter, but I want them
• 59:10
  Speaker 5: to try. So here is like the key. Here's the
• 59:14
  Speaker 5: key paragraph. Do not give up before you even start.
• 59:19
  Speaker 5: Frustration and disappointment are certain, failure is possible. But if
• 59:23
  Speaker 5: you abdicate the search for satisfaction now, you will put
• 59:27
  Speaker 5: it further out of reach. Resist the urge to arm
• 59:30
  Speaker 5: yourself with uninformed cynicism masking as OsO wise pragmatism. That's
• 59:36
  Speaker 5: really just good old fear of rejection. We do not
• 59:40
  Speaker 5: yet know what the world will offer you nice.
• 59:44
  Speaker 3: I mean, we've talked about some worrying things, you know,
• 59:47
  Speaker 3: insurrection and sort of high the real reasoning, and so
• 59:51
  Speaker 3: we're always on this podcast trying to put hope in
• 59:54
  Speaker 3: there too, because you know, we've faced threats to democracy
• 59:57
  Speaker 3: before and have prevailed. And then you're bringing this down
• 1:00:00
  Speaker 3: to a personal level. Is really helpful too. That, of course,
• 1:00:02
  Speaker 3: individuals who want to do the right thing have meaningful
• 1:00:06
  Speaker 3: lives and careers, especially as they're starting out or facing
• 1:00:09
  Speaker 3: a lot of their own crises.
• 1:00:12
  Speaker 5: And totally and problems are opportunities. They are like they
• 1:00:17
  Speaker 5: offer a chance to contribute, and you can, like, I
• 1:00:22
  Speaker 5: think what you really want is a craft that helps
• 1:00:25
  Speaker 5: you contribute. Like reporting is my way of coping with
• 1:00:31
  Speaker 5: what's going on in the world, not on an ideological basis,
• 1:00:34
  Speaker 5: but just by saying, like, our information systems are not
• 1:00:38
  Speaker 5: doing well, and so I'm just going to contribute the
• 1:00:41
  Speaker 5: best information I can to our public debates. And it
• 1:00:45
  Speaker 5: brings me tremendous peace of mind in this truly shattered
• 1:00:50
  Speaker 5: world of ours, because I get up in the morning
• 1:00:51
  Speaker 5: I say, I get what my role is on the
• 1:00:54
  Speaker 5: playing field of democracy. I'm going to play it as
• 1:00:57
  Speaker 5: best I can and know that I made my contribution well.
• 1:01:02
  Speaker 3: On behalf of the listeners, Jody Canter, I want to
• 1:01:05
  Speaker 3: thank you not just for joining us for this great conversation,
• 1:01:08
  Speaker 3: but also for your amazing reporting, which, as I keep saying,
• 1:01:11
  Speaker 3: really has taught us what's going on behind the scenes
• 1:01:14
  Speaker 3: in a way that's been hidden from us deliberately. And
• 1:01:17
  Speaker 3: I can't think of anything more important in this moment.
• 1:01:20
  Speaker 3: If we're going to save democracy, we have to know
• 1:01:21
  Speaker 3: what's actually going on in the halls of power.
• 1:01:25
  Speaker 2: And that's what you're teaching us about.
• 1:01:27
  Speaker 3: And thank you for this book as well and the
• 1:01:29
  Speaker 3: inspiration that it'll provide, especially to young listeners. Jody Canter,
• 1:01:33
  Speaker 3: thank you for joining us on the oath in the office,
• 1:01:35
  Speaker 3: I'll give you one last chance to share a final
• 1:01:38
  Speaker 3: thought if you want.
• 1:01:40
  Speaker 5: I'll say this, like, maybe this ties together everything we've
• 1:01:43
  Speaker 5: talked about. I'll take a shot at it, which is like,
• 1:01:46
  Speaker 5: truly thank you for having me on. And one of
• 1:01:49
  Speaker 5: the reasons it's so significant to me is because I
• 1:01:52
  Speaker 5: did drop out of law school to become a journalist,
• 1:01:55
  Speaker 5: and so like it burned out many years later, Like
• 1:01:58
  Speaker 5: I was very drawn towards the law, but it turns
• 1:02:00
  Speaker 5: out I wanted to report on it, not practice it.
• 1:02:03
  Speaker 5: But if you ever would have told me that I
• 1:02:06
  Speaker 5: would be reporting on the Supreme Court, I never would
• 1:02:09
  Speaker 5: have believed you. But the magic of journalism really is
• 1:02:12
  Speaker 5: that if you learn these tools, and you learn this craft,
• 1:02:16
  Speaker 5: we can scrutinize people in power. This is a time
• 1:02:20
  Speaker 5: tested tool of democracy, right like a peaceful civil tool
• 1:02:27
  Speaker 5: that involves words and involves truth that I just think
• 1:02:32
  Speaker 5: has like tremendous meaning and power. So thank you so
• 1:02:35
  Speaker 5: much for spending this time and for anyone who's listening,
• 1:02:38
  Speaker 5: thank you. Thank you so much for buying into the
• 1:02:42
  Speaker 5: idea that newspapering can still be a contribution.
• 1:02:47
  Speaker 2: Thanks so much, Jody Canter, what an amazing conversation.
• 1:02:51
  Speaker 5: Take care.
• 1:02:52
  Speaker 2: Wow.
• 1:02:52
  Speaker 1: I want to thank Jody Canter, and I want to
• 1:02:54
  Speaker 1: thank you, professor for setting up that interview.
• 1:02:57
  Speaker 2: Corey.
• 1:02:57
  Speaker 1: What is the best way for our listeners to follow
• 1:02:59
  Speaker 1: you and to keep up with your astonishing brilliance on
• 1:03:02
  Speaker 1: a regular basis the other six days of the week.
• 1:03:04
  Speaker 3: Well, the first thing I've got to say is subscribe.
• 1:03:06
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• 1:03:10
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• 1:03:13
  Speaker 3: subscribe button.
• 1:03:14
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• 1:03:17
  Speaker 2: one person. And if you want to check out the
• 1:03:19
  Speaker 2: other areas, the other places where you.
• 1:03:21
  Speaker 3: Can find the Oath in the office, There's the Oath
• 1:03:22
  Speaker 3: in the Office substack, There's the Oath in the Office
• 1:03:25
  Speaker 3: YouTube channel. You can also find me on Blue Sky
• 1:03:28
  Speaker 3: as Democracy prof.
• 1:03:30
  Speaker 1: Right on, and I'm at John Fugelsang on all the
• 1:03:32
  Speaker 1: socials at John Fugelsang, i have a substack and I'm
• 1:03:35
  Speaker 1: on Serious XM Progress five nights a week. My book
• 1:03:37
  Speaker 1: is called Separation of Church and Hate, and I really
• 1:03:40
  Speaker 1: want to thank Wendy and Beowulf and all of the
• 1:03:42
  Speaker 1: brilliant people who help us put this show together every week.
• 1:03:45
  Speaker 1: Most of all you, Professor Bretzchneider. Thank you so much again.
• 1:03:48
  Speaker 2: Thank you, my friend. What a pleasure to do this
• 1:03:50
  Speaker 2: with you.
• 1:03:51
  Speaker 1: Thank you Corey. There's going to be no shortage of
• 1:03:53
  Speaker 1: Malfeasons in the week's ahead. I'm very grateful of long
• 1:03:56
  Speaker 1: hot summer is going to have your brilliance to talk
• 1:03:58
  Speaker 1: me off a ledge. Will you guys next time on
• 1:04:01
  Speaker 1: the Oath and the Office