Latest / William Cooper Podcast Channel / When the Constitution Breaks: A Conversation with Adam Liptak

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When the Constitution Breaks: A Conversation with Adam Liptak · William Cooper Podcast Channel

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Welcome to How Our Constitution Works and Why It Doesn't. I'm your host,
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William Cooper, and with me as always, my co-host, Edward Larson.
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Ed and I could not be happier to have, as our guest today, writer that we've
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been devouring for decades with pleasure and,
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lots of edification, Adam Liptak, the chief legal affairs reporter for The New York Times.
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Adam, thank you for coming on.
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It's great to be here. Thank you for having me. So we like to get the show started
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with Ed framing things for discussion rooted in the context of the show and,
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of course, his deep historical understanding.
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So, Ed, why don't you take the mic and get us going?
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All right. I don't want to take it away from Adam, though. Adam,
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let me add my gracious thanks and my delight.
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I have been reading you for a long time. I'm glad I read one of your articles
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today and enjoyed it. Quoted parts to my wife.
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So thank you very much. As Will suggested, and our title of our podcast suggests, is.
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How our Constitution works and why it doesn't, is sort of like,
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the first part comes sort of like a civics lesson.
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I really, I often had lunch with Justice Sandra Day O'Connor,
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especially after she shut down from the court.
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I was a huge fan, and she cared enormously about civic education,
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Justice Breyer does too, and the importance of people understanding our Constitution.
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And she doesn't think people do, and I agree with her.
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And so we want to explain the Constitution sort of like what I would say when
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I was growing up in rural Ohio, a good eighth grade civics class,
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which I don't know if they have anymore.
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But the second part is our concern of, okay, this is how it's supposed to work. And why doesn't it?
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Why are so many people, the polls suggest, think Congress doesn't work,
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the Supreme Court doesn't work, the Constitution doesn't work.
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And that could be what we're thinking, and we're exploring it with people like
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you who know so much more than we do about this.
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And we've had some incredible guests.
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And sometimes we wing it on our own. And partly, I think it's simply because
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the Constitution is very old. It's almost 250 years old.
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And it was written for a small, isolated group of 13 colonies that had less
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people than the average state does now, less than Arkansas or Oklahoma.
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And things have changed enormously since then. We want world power.
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But, you know, we love the vision based on John Adams' thoughts in government
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and then the working of these delegates of trying to set up checks and balances that would work.
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So we wonder why it doesn't. We are playing with different ideas.
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The framers didn't envision political parties.
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They didn't envision modern corporations. So it just didn't exist.
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Independent agencies,
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But with your expertise on the Supreme Court, given what has happened over the
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past week, we have what we think are two textbook cases of how the Constitution works.
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The Constitution clearly gives Congress power over all property owned by the
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federal government. It's explicit. They discussed it. They knew what they were doing.
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And here the Supreme Court says, because of standing issues,
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nobody's going to end up being able to challenge whether the president can build a new ballroom.
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Another example is with mail-in votings.
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Clearly, the Constitution gives power to the states over voting,
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all voting in state elections, but even in congressional elections,
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unless Congress intervenes.
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And yet the president runs an end run with restricting mail-in voting,
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which I believe Congress could restrict mail-in voting. They could say you can't do it.
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But Congress hasn't. They didn't pass the C-MAC. And yet, when it comes to the
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Supreme Court, the Supreme Court, mealy-mouse, sort of says,
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well, it's not quite ripe yet.
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And then the time could sort of move on and the new activities,
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the ballroom gets built or the voting gets selected out by some machine.
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And the courts, even though the Constitution is clear. So I see that as an example
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of, Why the Constitution doesn't work?
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And the court is, you know, playing by rules that I think are important. But what do you think?
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And tell me I'm wrong. Please tell me I'm wrong.
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No, I think the basic analysis is right. The two cases are a little bit different.
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I think the mail-in ballot case has not been...
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Properly presented to the court. And I think they're going to take the state's
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interest quite seriously.
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But to step back a second, and I think you touched on this, I think the framers,
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did not envision political parties, did not envision factions,
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imagined that the three branches of government would each be quite jealous of
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their own power and wouldn't divide along partisan lines, much less the polarized world we live in now,
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but would not stand for a president who ignored congressional mandates, say,
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on the ballroom, and would take steps up to it, including impeachment,
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but using appropriations,
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or declining to confirm nominees, using the tools at its disposal to make sure
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the president, who after all is in Article 2, suggesting that.
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The prime mover in the system ought to be Congress.
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We now live in a world where Congress is, first of all,
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entirely polarized along political party lines, and second of all,
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is subservient to the president, which I don't think the framers would have
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envisioned for a minute.
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So, I mean, that's a real problem.
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And into that vacuum steps the Supreme Court, which has taken on probably a
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lot more power than the framers envisioned.
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And then I also agree that these justiciability doctrines can be used quite opportunistically,
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including to hide what is in effect a merits judgment behind a procedural ruling.
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Matt, do you have a follow-up? No, I will. I'd like to hear from you,
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but then I will if you don't.
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Yeah. Well, one of the things that I would love to hear about,
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it's a little quick diversion before we get back, is just how you came to your job as a reporter.
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I think many lawyers who are deep in the weeds of case law and brief writing,
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they dream of either doing what Ed's done and being a professor or what you've
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done and being a reporter.
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And I'd just love to hear the path you took to becoming the New York Times lead reporter.
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So I've had a long, tangled career, almost all of it at the New York Times,
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but in different capacities.
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I went to Yale undergrad and then was a copy boy at the New York Times between college and law school,
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and then went back to Yale for law school, was a summer clerk in the York Times,
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corporate legal department, then went off to practice First Amendment law at
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Floyd Abrams' firm, Cale, Gordon & Reindell, for four years.
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Then returned to the New York Times Company's corporate legal department as
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a lawyer for 10 years. So I practiced First Amendment law for 14 years.
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Then was, to my horror and delight, invited to be the national legal reporter
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covering the law generally in New York.
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And I didn't have the basic journalistic skills, so that was kind of terrifying for six months or so.
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But I gradually got the hang of it. I did that job for six years.
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My predecessor, start covering the Supreme Court when the Greenhouse goes and
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retires. I wasn't eager to take her place and fill her big shoes and move to
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Washington, but I couldn't figure out how to turn it down. So for 17 years,
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I covered the Supreme Court.
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For almost all of it is the only Supreme Court reporter for the Times.
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And then at the end of the term before last.
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I had stepped into this different role to write about the law more analytically
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and generally and get away from the grind of the commodity daily,
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beat reporting, which had gotten quite onerous, particularly with the rise of the emergency docket.
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So that's an overview of how I got here.
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Well, I didn't know some of that background. I find it very interesting that
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you were a corporate lawyer, as it were, First Amendment lawyer,
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constitutional lawyer, but a corporate lawyer for New York Times.
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That just prompted me to follow down this rabbit trail that Will has put us
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on What do you think of the future of Sullivan versus Times, Times versus Sullivan?
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Well, we know there are two votes, Gorsuch and Thomas, who are ready to reconsider
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it, and at least in the case of Thomas, ready to overrule it.
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Because Thomas is not wrong when he says that as an original matter,
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and not everyone is an originalist, but as an original matter,
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it's quite hard to justify in the New York Times against Sullivan.
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Justice Gorsuch seems more concerned with what he sees as the flaws of the modern and,
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news organization. He says it needs to be more reliable, have more fact-checkers and editors.
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I'm not sure what to make of that. But I think Justice Alito might be a third
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vote, but I don't see four votes for certain. I don't see five votes for overruling
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it, or at least as to public officials.
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I think the court could modify the progeny of Sullivan, which extended to public
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figures, to celebrities and the like, the same difficult burden of proving actual
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malice. And I think that's a little harder to justify.
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But the First Amendment was concerned with seditious libel.
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And I think criticism of public officials should be.
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Quite protected. And I don't see Barrett Kavanaugh or the chief,
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much less the liberals, wanting to get rid of it.
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I also think the court institutionally is sensitive to the public's reaction
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when it overrules decisions they've heard of.
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And Sullivan is one of the handful of decisions that many people have heard of.
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So I think it's probably secure, at least its core is secure.
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And I also think the spectacle of the sitting president of the United States,
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filing lawsuits for $10 billion, $15 billion.
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Is also something—I find it hard to imagine the framers contemplated that.
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What do you think of—well, it's reassuring. Thank you.
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Because while I agree with you where you started, that this would probably not
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have been an originalist doctrine.
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I agree with your comments there.
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As we had said, and one of the problems is the Constitution's out of date.
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And as several people, like Jill LaPlura, argued, the amendment process doesn't
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work. And it should have worked.
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It was hoped to work when the framers put it in.
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They cared a lot about it. And it doesn't work anymore, in part because of parties,
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for a variety of reasons.
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We've talked about that on the show. And the result is the Supreme Court and
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others, other actors in the system and the branches of government need to improvise some.
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And this seems like something that within the spirit of the First Amendment
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as extended by the 14th Amendment to the states.
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And so I certainly share your views and think it has grown to become critically
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important in this day and age, even whether or not the framers did it.
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And I hope your logic hangs tough.
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And given that provision and what you said about envisioning a president filing
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all these lawsuits, what do you think about him filing lawsuits against himself?
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That is, lawsuits against the federal government with himself saying that he
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is the unitary executive, controls the Justice Department.
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And there's this crazy law that I'd repeal in a moment allowing the Justice
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Department to use federal funds to settle, make a settlement,
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without Congress having to vote on it.
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Because I'm a great believer, having been a staff member for Congress,
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I'm a great believer in the power of Congress, the kind of powers they aren't using.
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That seems to be a particular scam. What do you think about that?
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So the Judgment Fund, which is the law you refer to, was a convenience that,
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Congress passed because it got sick of having to bless every individual settlement.
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And it gradually crept up from sort of caps, you know, up to this amount you
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can settle as you wish, but for more come to us.
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To trusting the executive to act in the best interests of the United States.
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And here again, I mean, there are things we cannot have envisioned,
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that this mechanism should be used for political reasons, to benefit allies,
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or to enrich the president himself.
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It's really preposterous. And I agree with you, Ed, that it ought to be modified by Congress.
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There was a little bit more of a reaction to the idea that there should be an
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anti-weaponization fund.
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And while the Attorney General has disclaimed it as such as a fund,
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there's nothing to stop them from doing it a la carte.
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So I think that's a deep problem and it's reflective of the fact that centuries ago.
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People were, the framers were geniuses,
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but they could not have envisioned everything that would come to pass.
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Well, I know he wasn't a framer, but John Adams was around and they heavily
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used his thoughts in government.
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And knowing the situation, he said, as you know, as you famously said in 1798
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about the Constitution and about limiting the presidency,
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Revenge would break the strongest cords of our Constitution as a whale goes through our net.
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Our Constitution was made only for moral and religious people.
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It is wholly inadequate to the government of any other. So I think they saw
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this coming when Jefferson first read the Constitution, sent over to him by Madison.
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His letter replying to Madison, well, it's got some good parts,
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it's got some bad parts, but there'll never be a second election.
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Once any person elected, they're going to claim fraud in the next election and
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find an excuse for throwing out.
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That's Jefferson. The first time he reads the bloody thing. So I don't know.
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I think they could anticipate some problems from the outside.
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I think that's why Franklin said it's a republic if you can keep it to Mrs. Powell.
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Right. But they did also envision a vigorous president.
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They didn't like the Continental Congress. They didn't like the weak governors
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of the states. They wanted something more.
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And I think they were a little misled by the prospect that George Washington,
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of Sterling character, would be the first president.
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Well, they admitted that much. As one of the delegates from South Carolina explained,
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we never would have done this, but that we looked at George Washington in the
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chair and thought he'd hold the job. And Franklin said much the same thing in his closing argument.
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I'm going to vote for it reluctantly, but it's because it's going to be led
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by a good leader in the first time.
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So I agree. I see your point. So what do you, when it stands out to you when
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looking at the Supreme Court and the judicial system in general,
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what parts of the Constitution is it holding up.
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The Solomon case might be a good example.
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And where is it letting us down?
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So for Article 3, I think the framers dropped the ball in giving justices life
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tenure or letting them serve for good behavior, which is understood to be life tenure.
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We're the only developed democracy in the world that doesn't have term limits
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or mandatory retirement ages.
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And maybe that mattered less when life expectancy was shorter.
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But you had Justice Stevens on the bench at 90. You have people serving well into their 80s.
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That gives rise to both a kind of dead hand phenomenon of, you know,
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a president who served 30 years ago sort of from beyond the grave directing
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the affairs of the nation.
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And then importantly also.
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Judicial independence is important, but justices are appointed by politicians,
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who hope they will do things that will be consistent with their politics.
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And that front-end problem is bad enough.
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Letting justices decide when to retire introduces politics at the back-end and
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makes them act strategically to try to step down under presidents whose politics they like.
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And that element is problematic.
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So I think if we had to do it over again, we would adopt the same system that
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everyone else in the world adopts, which is either a term limit or a mandatory retirement age.
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There's some dispute about this. I think that it would require a constitutional
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amendment. And as you said, Ed, that's essentially the same as saying it ain't going to happen.
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But that's a flaw in Article 3. Well, I appreciate you bringing up both ends
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of it. I hadn't anticipated, I hadn't thought about the back end,
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though that's definitely true. That happens all over.
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There's a lot of speculation about Justice Alito stepping down if,
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I don't expect it to happen, but if the Democrats take the Senate,
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stepping down in November and then running through a replacement,
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which is exactly how John Marshall got on the Supreme Court in the Senate.
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1800. So, yeah, I think, what do you think? 12-year terms would be a good idea?
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Well, this comment in Europe, there's a, 18 sounds kind of good because then
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you have this idea that every president would have two nominees.
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I think that is hard to do in practice because people die because just because
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you have someone come up on a two-year schedule doesn't mean and Congress will
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confirm, the Senate will confirm.
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The mechanics of it are very hard
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to work out, and even assuming this counterfactual thing would happen,
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it would take a long time for the system to work through and actually have people
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on a 12- or 18-year schedule.
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It's more a thought experiment than anything else, but it is problematic.
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Well, I agree with all that. I would favor a longer 18, I think, at least.
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The insulation from politics, to me, is a huge virtue.
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It goes too far when you have 90-plus-year-olds on the court.
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But from my perspective, the court really is handling things much better day
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in and day out these days.
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I would say all Article III courts, all three levels are handling what's put
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before them much better than Congress, much better than the executive branch.
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So I wouldn't want to fiddle with that much, but I agree at the back end point you make.
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And that leads me to my question for you, Adam. As a longtime observer of the
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Supreme Court and the courts generally, do you agree with my assessment that
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there's a lot more rationality coming out of Article 3 these days than the first two?
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And then more specifically with the court itself, is it as unhinged and tyrannical
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as it's some of its credits suggest, or are they just reshaped because President
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Trump got to appoint three judges,
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and here we are? What's your take on the courts?
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Well, I first of all agree with you completely that it's the one branch we can still be proud of.
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These are serious people who operate by reason and you can disagree with individual
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decisions and you can, you know, rue,
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decomposition in coalitions, but occasionally you hear arguments about,
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do we want cameras in the courtroom?
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It's sort of a trivial question in a sense, but I liked it when Justice Kagan
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was asked the question. She said, well, one good thing about it would be Americans
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would see that these are serious people, you know, engaged in important work.
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Although the clip got a context. Yeah, no, I think, again, cameras in the courtroom
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is who cares. I like your point, Beau. It's a great point.
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And what do I think of the court these days?
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For most of my time covering the court, it was a 5-4 court with Justice Kennedy
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in the middle and a little unpredictable. And the end of the term would result,
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in some things liberals liked, some things conservatives liked.
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And I think that was better for the American public, better for the institution.
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It didn't have the pre-cooked quality that some of the marquee cases have now,
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where the moment they grant cert, you know how it's going to come out.
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And I don't think that's great.
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But I also don't think that the justices are acting in bad faith.
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I think they believe what they say.
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I think if you strap them to a lie detector, they would say that they are doing law, not politics.
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That doesn't mean that their decisions don't map on quite closely to what their sponsors wanted.
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But there is a distinction between those people who think that there's something
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corrupt going on and those people who think that a court inflected by politics...
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I mean, we wouldn't have these huge confirmation fights unless they mattered.
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And they do. And there's conscious or not, motivated reasoning or not,
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relying on priors or not.
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One way or another, Republican appointees tend to vote in a certain direction
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in a whole range of cases, Democratic appointees the other way.
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And there's also, I mean, this goes back to the pace of appointments.
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It's sort of by happenstance that Jimmy Carter got to appoint No one.
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Richard Nixon got to appoint four people.
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That random quality is sort of odd.
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Well, I appreciate it. I do think it's a partisan court, but I think it's partisan
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for the reasons you used to.
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They became increasingly careful, much more careful than Eisenhower and Nixon
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were, to make sure the people, or Kennedy for that matter with Byron White,
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that they picked some people who really believed not only the ideology but the
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partisanship and were aligned to promoting the interest of their party.
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So I agree. I agree with the way you characterized it.
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And that leads me to wonder, when you go back to those earlier,
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how many people got to a point where,
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And I agree with you, 18 years would be a good limit.
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I hate to put an age limit on, per se, because that just encourages people to
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appoint young people, really young people.
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But what about the old way when there was the filibuster? See,
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I really regretted taking away the filibuster for Supreme Court justices because
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that forced a president to reach across party lines
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and to pick somebody like a Kennedy, Justice,
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Kennedy, rather than a Justice Bork.
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And I think that that sense did more than anything else to lead to a judicial
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independence because of the characters that had to be chosen.
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And so I really regret it. When it happened, I thought the filibuster should
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be removed for cabinet members. That made sense.
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The president should be able to choose his cabinet, whether I like it or not.
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Elections matter. But I think for just as a Supreme Court, especially,
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the old filibuster rule worked that you had to reach across party lines.
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What is your thought on that?
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I couldn't agree more. I think it's a very powerful point. And one way to think
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about it is that circuit court judges kind of auditioned for the Supreme Court.
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And back when the filibuster was still in place, you would audition by running toward the middle.
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You would have Justice Sotomayor, who it turns out is quite sympathetic to criminal defendants,
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was tough on crime in the Second Circuit because she wanted to be able to be
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considered by not only Democrats, but Republicans.
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She was sort of running in a general election.
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Now, the auditioners, post-filibuster, are running in a primary election,
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and they're trying to get as far out on one side or the other as you can.
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So you have these Trump-appointed justices on the circuits writing the craziest
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things and peacocking around in order to get the attention of President Trump.
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So I think getting rid of the filibuster was a disaster.
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Democrats bear a significant part of the blame because under Harry Reid,
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they got rid of the filibuster for lower court judges.
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And then when Gorsuch came on, Republicans got rid of it for the Supreme Court.
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It's a very unfortunate development.
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One area that I'd love to hear your take in, Adam, is elections and election
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laws, given that you're a close observer of everything day in and day out in
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your day job, and also just the legal dimensions here.
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Elections, from my perspective, are just these enormous operations.
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There's so many people involved and, you know, we're a country of hundreds of
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millions and there's rules and laws and courts and states and localities and federal government.
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It's just enormous. And the notion that we could ever please anywhere near everybody is laughable.
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And there's also, in some instances, I think competing considerations that are
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valid. And then you've got lots of lies and allegations and fraud and all of that. So, I mean.
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My sense previously was what kept it together was the good faith of the politicians,
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right? Like Al Gore clearly believed he won in 2000. I'm sure he believed it.
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But he stepped aside for the good of the country. And he knew that if you don't
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ultimately respect the Supreme Court and let elections come to some sort of
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resolution to race to the bottom for the country.
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I don't think we have that anymore, at least anywhere near as widespread as it used to.
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So my question for you is, do you see any path in the near future,
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maybe long term as well, where we come to any kind of harmony on elections as a country?
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Or do you think it's just going to be a big fight and we're never really going
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to know what's going to happen ahead of time with these consequential elections?
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It's a big topic. It's got a lot of pieces to it, but this will be my answer to many things.
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The polarization in the country now, the greatest since the Civil War, infects everything.
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And somehow we managed to climb back out of the Civil War.
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And by the time of World War II, there was maybe too little polarization,
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too little difference between the parties.
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But we live in a world now where people think that it's routine in the middle
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of a census cycle to redistrict to a fare thee well,
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to make sure that democracy doesn't work.
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I mean, it's, and the Supreme Court, not to its credit, washes its hands of this.
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And worse, in Rucho, there was this sense that this was an unfortunate thing.
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Nobody likes political gerrymandering, but the chief justice and the justices
29:55
who joined the decision say it's essentially a political question. It's not justiciable.
30:01
The federal courts have nothing to say about it. But recently,
30:05
that kind of necessary evil has started to be cast as a positive good,
30:12
that it's a valid state interest to want to redistrict along political lines.
30:19
And so nothing good is happening there.
30:24
I think we've got a couple more minutes. Ed, do you have any closing question for Adam?
30:30
Well, I certainly underscore your last comment.
30:34
Every word you said is, I feel, in my heart.
30:38
And it is grievous to see, having worked for Congress, when the two parties
30:45
could get along, Reagan was president and Tip O'Neill was the speaker.
30:50
And they got along. And Howard Baker, my favorite politician in my lifetime.
30:55
Was Majority Leader. They got along. When I look at this crew now, I think Thune's okay.
31:01
I think he's a serious guy. But when you look at the way the parties act and
31:07
you look at the way some of the justices act and they react to the situation,
31:12
it's hard to know who's trying to be the better person here.
31:16
Gerrymandering simply adds to the situation. And I was thinking they could do,
31:22
just like one person, one vote, back in the 60s, I was thinking Republican clause of government.
31:29
They had provisions that they could deal with it.
31:33
Congress has provisions. Time, manner, place, not the SAVE Act,
31:37
which had some good things, but some really bad things.
31:41
They could deal with it. They dealt with the problem of gerrymandering once
31:44
before when they've had the provision in time matter and place provisions that
31:50
required contiguous, concise, and community-minded districts.
31:54
That was the law for years. Yeah. Then they got rid of it. So there are solutions.
31:59
And I'm just wondering, do you ever see James Madison—I'll close with this.
32:05
James Madison, when he was at the ratifying convention in Virginia.
32:11
And Patrick Henry, who didn't believe in the Constitution, thought it would lead to dictatorship.
32:17
And he said, it's inevitable. We'll have a dictator under this, Patrick Henry said.
32:21
And Madison replied, and so I'm putting it back. Do you have any hope here?
32:27
And that's why we care about this show in civic education. Madison said to Patrick
32:31
Henry, I go on this great Republican principle.
32:34
The people will have virtue and intelligence to select men of virtue and wisdom.
32:39
Is there no virtue among us? If there's not, we're in a wretched situation.
32:43
No theoretical checks, no form of government can render us secure.
32:47
To suppose that any form of government will secure liberty or happiness without
32:51
virtue in the people is a fanciful idea.
32:54
If there be sufficient virtue and intelligence in the community,
32:58
it will be exercised in the selection of their leaders.
33:01
So that we do not depend on their virtue or put our confidence in our rulers,
33:06
but in the people who choose them.
33:08
Is there, in the world of social media, in the world of a breakdown in the news
33:13
cycle, in this world, can we trust the people?
33:21
It's hard. And the framers were not crazy about direct democracy.
33:28
Well, some of them were. Franklin was. Right. And I read that Wilson was too. Yes.
33:35
But, you know, they had the Senate elected by legislatures.
33:40
They thought the Electoral College was actually, you know, had a role to play
33:45
in, you know, selecting the president.
33:48
I agree with you that the information environment now is really toxic.
33:53
And not to end on a pessimistic note, I don't have a solution to it at all.
33:58
You're not alone. Well, Adam, you're a kindred spirit with both of us.
34:04
I think you look at things very similar, and we've benefited a ton from getting your perspective.
34:10
And the whole country and world that absorbs your reading, your writing,
34:14
we appreciate the sober, rational, informed view.
34:17
So keep it going thank you and thank you for coming on the show thanks for having
34:22
me this was a lot of fun awesome.