Speaker A: This is Amicus Slate’s podcast about the courts and the law and the Supreme Court. I’m Dahlia Lithwick. On this week’s show, what the Supreme Court’s decisions in the ballroom and mail in ballots cases reveal about what we can expect from the court in the run up to the midterms and beyond.
Speaker B: The most blatant constitutional violations will go unchecked unless there’s a court to say no.
Speaker A: And we reflect on the legacy of Gloria Steinem, a woman who understood that changemakers are never constitutional bystanders.
Speaker C: And remember, the Constitution does not begin with I, the president. It begins with we the people. So don’t try to divide us.
Speaker D: Access to contraception, access to abortion, era and all of these different things. She fought hard for them, and she didn’t believe that things should be taken slowly, per se, but she did understand that these fights don’t always end up with something instant. And you can’t just give up the next day because you fought yesterday.
Speaker A: But first, as the pace of Donald Trump’s unlawful conduct accelerates, as his various legal challenges and executive orders detonate in courts around the country, we continue to make the mistake of totting up wins and losses, reversals and approvals, as if this was some kind of linear progression through a legal system that operates along the lines of chutes and ladders, as if the goal here is justice and the president will either achieve it or evade it. But this is not a linear progression through the courts. And as we continue to learn, when the Trump administration suffers a setback in court, it often continues to violate the law, either either in secret or out in the open. That’s why totaling up victories and defeats obscures the real game, which isn’t justice, but power. There are almost too many vectors along which this game is playing out right now, but this week we want to try to name and explain some of them. The administration is now overtly exploiting the way time works and the ways in which the courts cannot keep up with the clock. The administration is overtly exploiting the rules of standing to toss legitimate parties from lawsuits. The administration is, as we often mention on the show, exploiting the fact that it can foment chaos and uncertainty and doubt simply by changing rules and expectations. And the administration is manipulating claims about emergencies and exigency to create the sense that every time this president fails to get his way, a catastrophe is about to descend. But the pattern recognition stops because this administration now has a willing assistant in this effort time and time again, six or sometimes five justices in the Roberts court supermajority step in to aid and abet these efforts, often on the shadow docket, often in an emergency posture, frequently without providing clear reasoning. And yet in response to every single new attempt at high level lawbreaking, we keep hearing a media and in turn lawyers and even the broader public intoning the Supreme Court will never let that happen. So on today’s show, we needed to do two things. First, we want to talk about what is happening right now in terms of law breaking. And secondly, we want to talk about how the Supreme Court is helping it happen openly, cumulatively, while the country tells itself this is all about a court that’s just deciding what is lawful and what isn’t. The conservative supermajority has made itself a key player, maybe the key player in the second Trump administration. And it is really time to stop pretending that that court is just an exhausted ump. Me to help explain the staggering degree to which this court has veered from what its predecessor, the Rehnquist Court, even what the Roberts court in Trump 1.0 would have done, is a dear friend of this show and one of my favorite people, Erwin Chemerinsky. Erwin is the Dean and Jesse H. Choper Distinguished professor of Law, University of California, Berkeley School of Law. He’s the author of 20 books, including Leading case books and treatises about constitutional law, criminal procedure and federal jurisdiction. And he is the author of over 200 law review articles. He frequently argues appellate cases, including those he’s argued at the U.S. supreme Court. Erwin, it has been far too long and it is really, really lovely to have you on the show to try to pin down a topic that, as you saw, just took me five paragraphs to begin to express.
Speaker B: It’s such a great pleasure to talk with you again. Thank you for having me on.
Speaker A: I started by promising that we would remind our listeners of what’s been happening in the last couple of weeks before we delve into the how and the why of it. So I wonder if we can start with a reminder of where we are with what seem like unrelated stories but are actually quite related. So I thought maybe we’d start with Donald Trump’s on again, off again $600 million ballroom project. This is the case of the demolished east wing and the outsized building project that keeps Donald Trump very happy choosing where to put gold leaf. It seems trivial. It seems rich in symbolism. But building permits are not usually what get the connlaw scholars exercised. This case is much more than Just trivial and symbolic. It’s about separation of powers, presidential powers. And in big ways, it becomes about who can bring a lawsuit. Can you just, before we deconstruct it, just tell us what happened?
Speaker B: I think the place to start is by noting that for over 50 years, the Supreme Court has said that people can come to court. They have what’s called standing to sue if they have an aesthetic injury. And so there are many cases where people sue claiming environmental degradation. And the Supreme Court has said that aesthetic harms are sufficient for standing. Well, the case that the Supreme Court handed down from its emergency docket on Monday, and it’s called National Park Service versus National Trust for Historic Preservation of the United States, involved a suit that was brought saying that the destruction of the East Wing of the White House was a violation of the law, that Congress has to approve this. It’s going to cost $600 million. Congress has the power of the purse. Congress should have to appropriate the money. That’s not privately raised. That seems to me as a matter of constitutional and statutory law, a slam dunk that Donald Trump is violating in the Constitution and federal statutes. And the National Trust for Historic Preservation said that some of our members are injured by the destruction of the East Wing and the building of this enormous ballroom. In fact, they identified one particular person, a retired professor of architecture. And she said, I regularly go in this park. I regularly walk in front of the White House. I suffer, therefore, anesthetic injury. In the federal district court, a conservative judge, Richard Leon, said, there’s an aesthetic injury. That’s enough for standing, and this violates the law. The D.C. circuit affirmed, but the Supreme Court, 5 to 4, reversed. And the Supreme Court said she doesn’t suffer any injury. Her only harm is, quote, offense, disagreement or distaste. Chief Justice Roberts wrote the dissent and said this is inconsistent with a half century of precedents that say that aesthetic injuries are enough. Of course, any aesthetic injury could just be recharacterized as offense, disgust, or taste.
Speaker A: And it’s worth noting you noted it in your piece in the Contrarian. Our friend Steve Vladek just noted it in his substack. Not one of the justices has intimated in this opinion that the construction project is legal. No one has the temerity to say this is clearly fine or it’s a close question. It’s just five of them. As you said, the chief justice votes with the three liberals in his dissent. But we have five justices who say, notwithstanding the merits, we’re just going to toss this case on standing with this as you’re suggesting really weird characterization of what the injury is.
Speaker B: This likely means that no one would have standing to be able to challenge a blatantly unconstitutional legal act. And it also means that if the court were to follow this in the future, it’s going to be much harder to bring challenges when there’s environmental degradation that violates federal laws.
Speaker A: You wrote that, too, in your contrarian piece, that the effect of the decision is that nobody’s going to have standing. And then you go on to say, rather than performing its essential function of being a check on illegal actions by the president, the Supreme Court has empowered him to ignore the law and to nullify Congress’s powers under the Constitution. And I think you’re pointing out a move that you have pointed out before that we’ve seen before, which is the court kind of distorts standing doctrine to ensure that while nobody thinks this action is legal, nobody can bring a suit. And I think what you’re saying is this is impactful beyond just this project, and I’d love for you to tell us why.
Speaker B: If no one has the ability to go to court to challenge something, then the illegal and unconstitutional action will continue. This is the second time in two weeks that we’ve seen this. Remember, it was just the prior week that the supreme court in Trump vs. California said that there was no standing, there was no ability of someone to go to court to challenge the Trump executive order, trying to change voting procedures and giving instructions to the Postal Service. When I teach, I always try to emphasize for my students that the most blatant constitutional violations will go unchecked unless there’s a court to say no. And here we can go back to Marbury versus Madison in 1803 that said the reason we give courts the power to strike down executive and legislative acts is the limits of the Constitution are meaningless unless there’s someone there to enforce them.
Speaker A: And can you just, in the interest of looping these two cases together, remind us about the president’s executive order that purports to arrogate to the president the power over federal elections, a power that has always rested with the states and should not be a close call right now.
Speaker B: President Trump issued an executive order in which he tries to give much more federal control over elections than the Constitution or federal statutes have ever allowed. It’s important to remember that under the Constitution, it’s the states that are responsible for administering elections. And President Trump has repeatedly tried take over control. A year ago spring, President Trump issued an executive order that said that states should not register people to vote unless they do checks of citizenship. A federal district court in Washington, D.C. said he doesn’t have that power. He then tried to get Congress to adopt the so called SAVE act, which among other things would require states to check citizenship and registering people to vote. Congress has been unwilling to do so. It passed the House, but it’s died in the Senate. So he’s tried on his own to do this through an executive order asking that the Department of Homeland Security compile lists of people who are citizens, transmit this to the states, trying to make sure that states only let these people vote. Given instructions, a directive to the Postal Service to develop regulations limiting absentee ballots. Federal district court issued a preliminary injunction. The United States Court of Appeals allowed it to stand. But the Supreme Court ruled this time it was six to three, that the plaintiffs didn’t have standing and that the case wasn’t, quote, ripe for review. Now subsequent to that, the federal district court in Boston said now there are postal service regulations and these clearly violate the law. And she issued a temporary restraining order. Temporary restraining orders aren’t supposed to be reviewed on appeal or by the Supreme Court, but it’s pending on the Supreme Court’s emergency docket as we speak.
Speaker A: And we’re going to catch our Slate plus listeners up with the litigation that’s happening in Judge Talwani’s court this week in our bonus episode. Go to slate.com amicusplus to join us for the very latest updates on that. But I do Erwin, want to keep the focus on you now described a move that happens twice and worth flagging again in that 6, 3 order in the ballots case. Again, we don’t have a single justice saying it is clearly within the president’s power to commandeer the post office into helping determine the outcome of federal elections. Nobody has the temerity to suggest that that which is patently unlawful is lawful. They just, as you say, use ripeness doctrine and standing doctri. And in this case there’s the added injury, which I think is worth having you unpack for us, of batting away the Purcell principle. So there’s actually in this context, right in the elections context, another buffer to courts meddling in election cases while the clock is ticking down. And even in that instance where the court has happily used the Purcell principle to say, oh no, we’re not gonna do anything that is gonna increase the franchise here. They’re just un by the fact that there is again, it’s a made up judge made rule, but there is a rule and the court has no problem making Short work of it.
Speaker B: Let me start with you. Do it by again emphasizing if the courts can’t hear the challenge, the effect is the same as the courts upholding the practice. I often say if the government were to give millions of dollars to churches, that would be clearly unconstitutional. But if no one can sue to stop it, it’s the same as the court allowing it. And that’s what we’ve seen in these recent cases. You mentioned the Purcell Principle, and I know listeners of the podcast have heard a great deal about this. The Purcell Principle comes from a 2007 Supreme Court ruling, also on the emergency docket and Purcell v. Gonzalez, that says that federal courts should not become involved and change the rules of elections soon before they occur. And what is striking is that sometimes the Supreme Court follows the Purcell principle and sometimes it ignores it. On April 29th in Louisiana versus Calais, the Supreme Court greatly narrowed the Voting Rights act and changed the rules with regard to drawing election districts. They did this even though balloting had already started in Louisiana. In fact, Louisiana, after the decision postponed its congressional election, Florida and Tennessee changed their districting while the balloting was going on. And if you read Justice Samuel Alito’s opinion in Louisiana vs Clay, he doesn’t even mention or allude to the Purcell Principle. And here it seems that the Supreme Court’s paying no attention to the underlying rationale of the Purcell Principle. We don’t want to change the rules of elections soon before the elections. Let’s take as an example, all balloting in the state of Washington is absentee balloting. It’s all done through the Postal Service. And if the Postal Service changes the rules in terms of what they’ll deliver, what kind of envelopes are allowed, it will cause chaos. And it’s exactly that that the Purcell Principle is supposed to be preventing.
Speaker A: You and I have now batted back and forth the same principle here, which is by doing nothing, the court does something right. The court allows that, which again, nobody thinks is legal to go ahead until some unspecified date in the future. And many, many harms will accrue between now and then. There’s another thing they do again in these cases that I think is really worth naming right here, right now, and that is in that shadow docket order in the mail in ballots case. Erwin, the court takes this language of, you know, the president just signed this order in order to, you know, instill confidence and to ensure that, you know, voters feel good about the elections process. That’s also doing something right. It is starting from the proposition that voters are terrified about vote fraud by mail. And so I just want to pierce this idea that the court is neutrally applying neutral rules. The court has put a thumb on this scale in all the ways we’ve just talked about standing doctrine ripeness, you know, the Purcell principle. They’ve also put a thumb on the public discourse scale by suggesting that the American public is in a froth and a panic about mail in voting.
Speaker B: And, of course, generally, they are not. On the other hand, President Trump very much is because he believes it would be politically advantageous for the Republicans to restrict mail in balloting. And I think what you have underlying all of this is a court that is very supportive of President Trump, whether it’s because they accept his premises, like about mail in balloting, or they just want to support him. But the record is overwhelming. You know, at the beginning, you said we shouldn’t do a scorecard, but sometimes statistics are revealing. At the end of last term, I did account, and from January 20, 2025, until June 30, 2026, there had been 31 rulings by my count, involving challenges to the Trump administration. That’s an astounding number, unlike anything we’ve ever seen in history. And in 26 of 31, the Supreme Court had sided with President Trump, most of those being on the emergency docket. And obviously, the number of cases siding with President Trump has gone up just in the last couple of weeks. I think that tells us something. I can’t think of an instance where Justice Thomas and Alito have ever voted against anything President Trump has wanted to do during this term.
Speaker A: I think we have to acknowledge that in order to get to where they want to go, the court must willfully blinker itself to the realities of what’s being pled in lower courts. What is being said by Justice Department lawyers, you know, the sort of on again, off again. Is the post office complying? Is the post office not complying? Have they obeyed the injunction in the mail in ballots case or not? And the court seems to be absolutely willing to blinker itself. And by this, I mean the majority. To the reality that court orders are being ignored, to the reality that this emergency doesn’t exist, to the reality that the president does not have the power to do that which he seeks to do. I mean, this isn’t willful naivete, Erwin. This isn’t some kind of presumption of regularity that, oh, the Justice Department always tells the truth and we assume that the administration is always working in the best interest of the country. This is something else. As you just said this looks and feels like a 6 to 3, sometimes 5, 4 majority, overtly assisting the Trump administration with the promise that, oh, all this will get sorted out on the merit someday in the future. Is it your sense that the court simply doesn’t want to contend with the truth here, which is that there is an enormous amount in both the ballroom case and the mail in voting case that is irregular, that is illegal, that is openly defiant of the lower courts and the Supreme Court has made some kind of tactical decision to ignore all of that?
Speaker B: I don’t think so. I think what you have is a very conservative president governing in a very conservative direction with six very conservative justices. And I think in a lot of the instances, they agree with what he’s doing. In a lot of the instances they want to support what he’s doing because he is their president. Let me give you an example that I think so supports what you’re just saying. Going back to the voting area, we were talking about how after Louisiana vs Calais, the Supreme Court made it much harder to enforce the Voting Rights Act. But the one path the Supreme Court left open was that there could be a finding of intentional race discrimination in districting, then that would be illegal and unconstitutional. So a three judge court finds that Alabama engaged in intentional race discrimination in drawing districts. It goes to the Supreme Court. The Supreme Court says there wasn’t a sufficient presumption of regularity. There wasn’t sufficient deference to the Alabama legislature. It’s astounding to think we should give Alabama deference when it comes to claims of race discrimination, given its history. That was just the Supreme Court being very conservative and doing just what you said, ignoring the findings of the lower court.
Speaker A: Okay. We’ve now touched on very quickly and probably too quickly, the toolkit that the court has been using. We’ve talked about standing, we’ve talked about, you know, balancing harms, claims of emergencies. I just want to re up because I think for listeners, you know, who knows, an emergency is in the eye of the beholder. Right? Standing is in the eye of the beholder. Aesthetic damage is in the eye of the beholder. I want you to remind our listeners there’s actually doctrine on all this. This is not feelings bald. A justice doesn’t get to sort of lick her finger and put it in the wind and say, you know, there’s no standing here. These are doctrines that you teach that I learned in law school that are not meant to be malleable. They’re not meant to be decided from on high based on Feelings. Every one of the ideas that we have discussed here that the court has torqued to get an outcome that is different from what the law would dictate. Every one of these doctrines we’ve talked about today has a long standing pedigree and expectations on all sides that we know the rules of the road. Right?
Speaker B: Of course. We want the rules about who can get into court to be as clear and predictable as possible. I’ll go back to where we started our conversation in 1972 in Sierra Club vs. Morton. The Supreme Court said that plaintiffs who claim an aesthetic injury have a harm sufficient to get into court, a harm sufficient for standing. And in so many cases, the Supreme Court has repeated that, and it’s the way it should be. How else could we enforce environmental laws when the destruction of a park or a river in violation of environmental law, the users of the park and the river have to be able to sue. And that’s exactly what the plaintiffs in the case with regard to the White House ballroom said. The plaintiff in particular, Professor Allison Hoagland, said, I regularly walk through to this park. I look at the White House and seeing what they’re doing is an aesthetic injury. So I should be able to come to court and argue that what’s being done is unconstitutional and it’s illegal. The lower courts accepted that and the Supreme Court just blatantly disregarded it, saying, well, it’s nothing, but she has a distaste and offended. That would then mean in any case involving an environmental injury, a court can say, oh, it’s just offense and distaste, and it nullifies over a half century of well established precedents.
Speaker A: What you’re saying is so important because I think that’s the added bonus here, right? We saw this last year in the first Birthright Citizen case where the added bonus is you do away with the right injunctive power of lower court judges. There is an enormous benefit that accrues to the court if you manipulate standing rules, if you manipulate what is an emergency, if you manipulate when a case is ripe to be brought. And because I think it’s abstract and obscure, it’s not the same as saying, go ahead, Donald Trump, build your ballroom. You can do what you want. It doesn’t matter if Congress hasn’t appropriated the funds. Go ahead, Donald Trump, why don’t you take over mail in elections nationally? It’s a very clever double win here, right? Because you’re not just giving a victory to the president that, as you said, they would be inclined to sign with anyway. Erwin, you’re also doing away with all of the rules of the road so that in every future environmental case, there’s no standing. And in every future birthright citizenship case, you can’t have a single judge issuing an injunction. This is a win for the court, no matter how you slice it. If the court’s values are Donald Trump wins and we’re the deciders, right?
Speaker B: That’s exactly right. When Supreme Court decisions are on procedural grounds about standing and a rightness about whether or not there can be nationwide injunctions, that doesn’t resonate with people. It’s too abstract. And so if the Supreme Court would have handed down a ruling on Monday saying destroying the east wing and building the ballroom is constitutional and legal, that would have, of course, gotten more headlines. It would have also been absurd, given the constitutional principles in federal statutes. But instead, what the Supreme Court says here is there’s no standing. Your point on nationwide injunctions is so important because I don’t think people realize how important it is to be able to have a nationwide injunction and stop an illegal and unconstitutional practice all over the country. Otherwise, the challenge is you’d literally need to bring lawsuits in all 96 federal district courts. The Supreme Court ruling on the merits on birthright citizenship gets headlines, but when it’s about nationwide injunctions, much harder for it to resonate with people or for people to understand the long term consequences of what the Supreme Court is doing.
Speaker A: We’ve talked about the how of it, we’ve touched on the why of it. But I still don’t have a satisfactory explanation for myself, Erwin, or theory of the case about what is different in the Roberts court, in the first Trump era and the Roberts Court now, because I’m old enough to remember the court saying no to Donald Trump on the census case, I am old enough to remember a Roberts court that was at least apt to say, as we used to joke on this show, don’t lie to me, or at least lie to me better, don’t embarrass yourself at the Justice Department and embarrass this court. And with the understanding that Amy Coney Barrett has taken a seat and that Justice Jackson has taken a seat, I still cannot explain to myself why this court is seemingly willing to abandon the constraints that I think, again, half heartedly, but nevertheless constraints that they put on the first Trump administration. And maybe most pointedly, and I’m thinking of the midterms right now, the, the constraints they put on the administration in terms of making truly, spectacularly bad election law cases on the eve of the election. What’s changed.
Speaker B: I think the answer is there’s now six conservative justices. I’m trying to finish a book titled the Sixth justice. And the thesis of the book is how different it is once there’s six conservative justices. Let me go back even further than the Roberts, quote, court to the Rehnquist Court, which was also a conservative court, but nothing like this one. And that’s because then you had swing justices. You had Sandra Day o’, Connor, Anthony Kennedy. So the Rehnquist Court even being conservative. And Grutter vs. Bollinger in 2003 upheld College University engaging in affirmative action with Justice O’ Connor writing the opinion. In the early years of the Roberts Court, you had Supreme Court decisions that would advance rights. Think about, I guess, the second decade of the Roberts Court. But Obergefell v. Hodges, where the Supreme Court that state laws prohibiting marriage equality were unconstitutional. Justice Kennedy wrote that opinion. Obergefell wouldn’t be decided the same way today with this court. Go back to the Rehnquist Court. They were willing to say no in crucial cases to President George W. Bush. They said that Guantanamo detainees had a right to go to federal court for habeas corpus. They struck down a federal law restricting that. Those cases wouldn’t come out the same way today. And so you’re right, of course, in the first Trump administration, the Roberts Court said that President Trump couldn’t eliminate the DACA program, the Deferred Action Trial Arrivals program. It couldn’t have the Commerce Department change the rules with regard to the census. Those cases wouldn’t come out this way today because it’s not just six conservative justices. But look at how very conservative Thomas Alito, Gorsuch, Kavanaugh and Barrett are. That, I think, is the answer to your question.
Speaker A: It’s a partial answer. It doesn’t quite answer my follow up question, which is, but why Donald Trump? If I ask myself, Thomas Alito and sometimes Gorsuch notwithstanding, whether John Roberts loves Donald Trump, whether Brett Kavanaugh, whether Amy Coney Barrett really, truly wants to live in a world of boundless executive power to a person who shows no regard for the rule of law, it’s hard for me to get there. And maybe I’m wrong. But what’s tricky for me, Erwin, and what has been, I think the source of the biggest mistakes I have made in predicting what this court would do is I think up until two years ago, I was the dumb dumb who was saying this court doesn’t want to be the last U.S. supreme Court in American history. This court doesn’t want to be sitting astride the dumpster fire that is democracy and voting rights. Clearly I was wrong, but I find it really hard to understand and it goes back to the blinkering themselves, how it is that they do not see that fundamentally this is a president who does not believe in them.
Speaker B: Let me separate Roberts, who you start with, from Kavanaugh and Barrett, because I think there’s a different story. I think Roberts wants this to be the Roberts court, and he wants to write the majority opinion in key cases. He doesn’t want to replicate very often what happened in Dobbs where the five conservative justices overrul Roe without him him this week he had a situation like that where the five conservative justices dismissed the lawsuit with regard to the White House ballroom without him. But generally he’s going to do what’s necessary to be in the majority and write the opinion. My example is one of the worst Supreme Court cases in recent years, in all of American history, I think, was Trump versus the United States two years ago where the Supreme Court said that the President has absolute immunity from criminal liability for any official acts in office. John Roberts wrote that opinion. And I’m convinced he wrote it in such an extreme way because it’s the only way he would be in the majority and be able to write it. I think as to Kavanaugh and Barrett, remember, they were put on the Supreme Court by Donald Trump. They’ve been very conservative their entire careers. And so I think whether it’s they agree with Trump or want to support the president, they’re with him. And I’ll give an example that unites this. Conservatives have long wanted to have a unitary executive theory that gives the president broad powers, including, if I were anyone in the executive branch of government. All six of the conservative justices were with Donald Trump, even though that was a fringe theory that when it first came to the Supreme Court, was rejected seven to one in an opinion by conservative Chief Justice William Rehnquist.
Speaker A: That is an incredibly useful answer to me. It’s almost a structural answer, right? It depersonalizes it from they don’t actually believe that Donald Trump is the greatest chief executive in the history of America, but they have pre existing commitments to unitary executive theory, to, you know, broader voting principles and racial equality and justice principles that are embodied by what Donald Trump does. And so there’s not a real reason to split off. Here’s the final wrinkle I’m going to throw into this. I’ve hinted at this, but I want to ask it directly. Do they know that when Donald Trump loses, he still wins, by which I mean he takes his losses as wins. He uses them as opportunities. Right. To go after the justices, his justices and his work that rule against them. He uses it as an opportunity to do the same thing in a different way.
Speaker D: Right.
Speaker A: We had a big loss for him in the tariffs case. He just found a different way to do the same thing. He is still trying to fire Lisa Cook at the Fed. And if and when, and I think this is really important to underline, he loses on mail in ballots, he will claim that that is the reason that the midterms were stolen. Right. And so this is is a win win enterprise again for a president who does not believe in the supremacy of the Supreme Court or democracy or the rule of law. And so if that is the truth here, and I think it is the truth, isn’t there some salience for at least some of the justices you’ve cited at the center who want to at least, if nothing else, maintain their control over how democracy, how the Constitution and how presidential power plays out?
Speaker B: You ask a terrific question. I’m going to slightly rephrase it and then talk about your examples. I think the question is, are the conservative justices scared about where Donald Trump is taking the country? There’s no doubt that Ketanji Brown Jackson and Sonia Sotomayor and Elena Kagan are scared. I’ve often think that what they’re trying to do is, is break the fire alarm and say to the country that democracy is really in danger. But is it that the six conservative justices agree with Donald Trump or is it they just want to support the president? Is it that they just don’t see the threat to democracy that’s posed? I think your examples are right. President Trump loses the tariffs case on February 20th and immediately that day imposes new tariffs in defiance of the Supreme Court. President Trump loses the birthright citizenscape on June 30th and immediately turns around and says, here’s a new executive order restricting birthright citizenship. The Supreme Court limits the firing of Lisa Cook and immediately says, we’re going to go ahead with it anyway. Does that upset the justices who are in the majority in these cases saying, this is a president defying us, or is it? They say, well, well, this is President Trump. We generally agree with him. This isn’t such a bad thing. I wish I had a sense of what the justices you mentioned, and especially Justices Gorsuch, Kavanaugh and Barrett think, because there’s nothing in any of their opinions that sound the alarm that I think needs to be rung. Right now.
Speaker A: So I want to, I think, end on this question. That is the thing, Erwin, that, you know, when I’m brushing my hair at night, I’m worrying about, which is the legitimacy problem. You know, there’s no plan B. If there’s no court, we do this with the army, and that’s never good. So you and I, I think deeply, deeply believe that it’s the Court’s prerogative. It is, in fact, the Court’s, in my view, most essential task to preserve its own legitimacy. No one else can do it for them. And some of these moves that we’re describing, as you say, if the Court had just said, okay, that’s it, the President can take control of all mail in voting, that would have been a national shockwave. Doing it the way they did it doesn’t register, certainly doesn’t register for more than a day. I’m wondering if this question of the Court’s legitimacy plays into the conversation you and I have had right now. You know, you’ve talked about John Roberts wanting to preserve his own legitimacy, his own historical memory. But doesn’t the Court want to be perceived as the neutral umpire, arbiters of the law? And how do we think about preserving that when the Court, or at least the majority of the Court, seems to have given up on that project?
Speaker B: I mean, to begin with, as you do, at this moment, the Court’s the only guardrail of democracy we have left. Certainly none of us believe that those around the President, Pete Hegseth, Todd Blanche, are going to say no to anything Donald Trump wants to do. Congress has not been a guardrail at all. Obviously, we hope that the elections will be a guardrail, but we’re seeing a very aggressive attempt, attempt to manipulate them. The Supreme Court’s legitimacy is at the lowest level it’s ever been. The Supreme Court has its lowest approval ratings in history. It’s also at the same time the Congress has its lowest approval ratings, the President has low approval ratings, the major institutions, our society, the media and universities do that should cause us all to worry about the future of democracy. When all of the major institutions sided, have this loss of legitimacy, I would hope that the Supreme Court would be attentive to its long term legitimacy. I would have thought that the Supreme Court would have developed a binding code of ethics because the lack of it has really been a self inflicted wound for the Supreme Court’s legitimacy. I would think that even the most conservative justices would be worried about what its rulings are doing for its legitimacy.
Speaker A: But I also fear that Those justices live in a bubble, and the people who they hear from are the people who think they’re doing a great thing by supporting President Trump because school is starting and law students are flooding in. And I always ask you this question when I have you on the show, what you are telling your students. Maybe you will tell them just not to listen to this conversation. I don’t know. What are you telling your law students? Erwin, this fall, with the midterms upon us, with I think, an increasing piece of evidence that the Supreme Court does not mind bigfooting into these midterms and that it may be for reasons that are not pristine, what are you telling your law students about what you’re fighting for right now and what they should be fighting for?
Speaker B: What I find is that my students are tremendously idealistic but not optimistic at this moment. What I want to try to do is instill a message and and hope in them that we have to fight back and certainly want to point to examples of what’s going on in that regard. I’m teaching this semester a course called Federal Courts. And as you know, what it focused on is what cases can come to federal courts. And we’re in the midst of the beginning of the semester talking about who has standing to sue, when is a case ripe? And so I’ve begun recent classes by talking about the Supreme Court rulings. And my message to the students, as it’s been in all of the almost 47 years I’ve been teaching, is that the Supreme Court decisions are a product of the justices on the bench. Federal Court of appeals decisions are a product of who are the judges. The first thing I want to know when I have a federal court of appeals case is who’s going to be my panel. And there’s times I know I have a really good chance of winning with those judges in a time I know where I could let my puppy argue you, and it’s going to be the result. I don’t hide that from my students. But what I tell them is as lawyers, we have to develop the best arguments we can to try to persuade the judges and justices who are there that I’m hoping giving them tools that they’ll be able to use for a long time, but I don’t hide any reality from them.
Speaker A: Erwin Chemerinsky is dean and the Jesse H. Choper Distinguished professor of Law, University of California, Berkeley School of Law. He’s the author of 20 books, including Leading case books and treatises about constitutional constitutional law, criminal procedure and federal jurisdiction. And he is the Author of over 200 law review articles, he frequently argues appellate cases, including in the U.S. supreme Court and his forthcoming book, which we will have you on to talk about. Dean Chemerinsky is about the difference between a 6, 3 split and a 5, 4 split, because I absolutely agree with you, it creates a permission structure the likes of which I have not seen in my 25 years covering the court. Thank you so, so very much for being with us here today.
Speaker B: Thank you. Such a pleasure getting to talk with you.
Speaker A: Gloria Steinem died this week at the age of 92. She liked to tell a story about a taxi ride that she took in 1964 with the renowned writers Gay Talese and Saul Bell, in which Talese remarked, quote, you know how every year there’s a pretty girl who comes to New York and pretends to be a writer? Well, Gloria is this year’s Pretty Girl. In 1971, Steinem Co founded Ms. Magazine, which gave voice to millions of women seeking gender equality in the workplace. Its 300,000 test copies sold out in a little over a week. One of the magazine’s most noted early articles listed a bunch of prominent women, among them tennis player Billie Jean King and singer Judy Collins, as well as Steinem herself, publicly declaring that they had had abortions. Steinem later told the Washington post, quote, if 1 in 3 or 4 adult women shares this experience, why should each of us be made to feel criminal and alone? Steinem would come to embody women’s fights for their wallets, their bodies, their paychecks, their physical safety, and so much more.
Speaker C: We are here and around the world for a deep democracy that says we will not be quiet, we will not be controlled. We will work for a world in which all countries are connected. God may be in the details, but the Goddess is in connections. We are, we are at one with each other. We are looking at each other, not up. No more asking Daddy.
Speaker A: That’s Steinem speaking at the Women’s March in Washington, D.C. on January 21, 2017. Joining us to honor and to thank Gloria Steinem is Professor Michelle Bratcher Goodwin. Goodwin is the Linda D. And Timothy J. O’ Neill professor of Constitutional Law and Global Health Policy and faculty Director of the o’ Neill Institute for National and Global Health Law at Georgetown University. Her publications include five books and more than 100 law review articles, book chapters and commentaries. She is executive producer of Ms. Studios and host of the first and flagship Ms. Podcast on the issues. Michelle Goodwin, it’s been a minute. Welcome back to Amicus.
Speaker D: Thank you. It has been too Long, but always wonderful to be in your company.
Speaker A: Michelle, I wanna ask you, can you tell me about the first time you met Gloria Steinem and whether and how she defied or exceeded whatever you expected going into that meeting?
Speaker D: Well, I will say that I had the opportunity, across a number of instances of my own development and growth, to meet Gloria Steinen, meeting her while I was in college, meeting her as a law professor, meeting her while working with Ms. Magazine and having launched Ms. Studios. And so maybe I’ll speak to one of the more recent times of spending time with Gloria. And that was in the wake of our book publication coming out on the 50th year of Ms. Magazine and book tours that we were doing. And I remember being in someone’s home in a brown and Gloria and I sitting side by side and she could be funny. And I don’t remember what exactly she said, but she cracked me up. And so there’s this photo of us with my hand on her knee, the book in her lap. She’s looking down, and we are just having a joyful time. And that was just a few years ago in New York.
Speaker A: Michelle, I wanted to ask you about the scale of Steinem’s legacy. Many obituaries have picked up this quote from University of Chicago history Professor Christine Stansel’s 2011 profile of Gloria Steinem for Glamour, where she wrote that Steinem was to the women’s movement what Martin Luther King Jr. Was to civil rights, the galvanizer.
Speaker D: She talked about the importance of lighting other people’s torches. And so in many ways, already her impact is here. And she was not one who believed her name had to be on everything. Not at all. I mean, she was very much willing to cede the stage to others. I saw her do that in person a number of times. She didn’t have to be the person who moderated, then did the Fireside Chat and did the intro and did the outro, not at all. And she wanted others to be able to occupy that space. But then substantively to the point, there’s so much truth in it. And I think that this is just a really hostile time right now against women, women, color, against black people. It is really, really that harsh time. But I think on one hand, one could see that in less than 10 years, or just over 10 years from this point is when she received the Presidential Medal of Honor from President Barack Obama, which then was saying that during his administration she was seen right. What is it that’s taking shape now in the United States that would seek to try to Literally rip like. Like a scab off of everything that’s been great and informed and civil rights oriented and civil liberties oriented. So her legacy lives on with a very powerful and pounding heartbeat, despite the fact that in the United States today, there are the efforts to try to strip away everything that she fought for.
Speaker A: You start from the place that I also wanted to start, which is we have moved backward and that things that were done and dusted 10 years ago in terms of understanding the enormity of her contribution are now not just in question with regard to her legacy, as you say, but in question as a matter of law and rule of law and how we think about the world. And that’s the reason I wanted to talk to you, Michelle, is because I think that we are so preoccupied as a culture with, you’re an icon, you’re not an icon, that it elides this much harder question, which is, she is absolutely an icon. And also, so much of her life’s work is being eroded and erased in front of our eyes, and that. That has to be part of the story we tell today. I think part of the reason I wanted to talk to you, Michelle, is because Gloria Steinem starts her career as a journalist, not as a lawyer like you and me, not as a public intellectual, whatever that means. She worked as a reporter. She famously got her start in that moment in New York where, you know, being cute and sassy and brash trash and being willing to do anything and write about it meant a lot. And yet she moves out of that, partly because of the way journalism treated women’s issues in that moment and the work she was doing. And she becomes an activist and an organizer because journalism is failing. Women’s rights and law is failing, and politics is failing and culture is failing. And I’d love to hear your thought about this nexus, right, between journalism, law, politics, and culture, because you and I are still fighting that fight.
Speaker D: We are, and you’re right. We come together at these powerful moments. So she was. And I think we cannot divorce the fact that she grew up during Jim Crow, not that she was a subject of Jim Crow, but in another way, we all are, if we’re honest. There’s some, you know, we’re the subject when we’re being privileged by Jim Crow. Crow and the pain of others. And she took the approach that during this period of Jim Crow and Jane Crow, Right. That there was truth to be told. And I am reminded of the African adage of the tale of the hunt will always glorify the hunter until the lioness has her say so narrative was really important at the time in which to greenlight anything, was a man. You turn on the nightly news and they’re really learned, smart, but they’re all men. And so all news is being filtered in that way. Who’s, you know, on the editorial boards of the major newspapers and also the state run newspapers, they’re all guys, you know, for women. The message that’s sent to women in print is, is this a sexy vacuum cleaner that will make your husband happy to see you pushing it if you push the button on this, this washing machine, this refrigerator, or smoke these cigarettes, Right? So she’s coming out of a period of time in which there is no abortion rights, in which there is a constitutional challenge to whether even married people can have the right to access contraception. At a time in which it’s still unlawful in some states for women to serve on jury. At a time in which women cannot have their own bank account or credit cards in their own name. At a time in which we’ve not made equality in sports in the United States, Title nine At a time in which, well, because we have no laws about it, you just sexual harass your secretary, your receptionist. Right? Because those are the roles in which women are basically having secretary, receptionist, maybe nurse and teacher, things like that. So all of that, she, she’s breaking through with Ms. Magazine. And it’s worth noting, and as a journalist before Ms. Magazine, and it’s worth noting that when she co founded Ms. Magazine with Dorothy Pittman Hughes, and you see the two of them, this black woman and this white woman with their power fists raised in the air, the philosophy was that we all wash windows and we all sweep floors. Meaning that this revolution that we’re trying to carry out out this truth to power speaking that we’re seeking to do, nobody’s too good. We all have to roll up our sleeves. It’s the only way that this can happen. And something else that you mentioned which speaks to the power at a time in which abortion is criminalized in the United States. There it is in Ms. Magazine before there is Roe v. Wade. Truth to power. We are the women that have had abortions and we will speak about this and we will put it in your face and we will make this a national construct. And we will be fearless in our articulation of our civil liberties and our civil rights and what our government owes to us. And now it’s Gloria Steinem.
Speaker A: I’m really thinking a lot today about stuff she created. Michelle, because she was tireless, right? Like the world throws up a roadblock. She creates some structure, institution to work around it. So it’s not just. Just Ms. Magazine. It’s not just, you know, her work to get the ERA passed. And then when she couldn’t do that, she immediately moves to co found the National Woman’s Political Caucus. Right. Like, there’s always a workaround. There’s always the next thing. And in the face of all that, she is working on a hundred fronts, which I find really interesting. I read in an obituary that she was like, regretted that she didn’t write enough. I mean, she wrote constantly. And there’s something about this tirelessness and this sense that, like, okay, we can’t do that. We’ll do this right? We can’t find this pathway. We’ll find that one. And I love it. Partly because we’ve been working all summer on popular constitutionalism at Slate, but partly because it’s such a message about build the thing, build the thing, make the next thing. If there’s a roadblock, construct a new path. And it’s such a facility with government and organizing that I think in this moment of cynicism and powerlessness needs to be interrogated a little bit, because it’s quite amazing.
Speaker D: I think it’s a really important point that you’re bringing home, which is that it can be so incredibly daunting in these times. And she took enormous strength and spoke about the strength that she took, the lessons that she took from black community. Right. She said that, you know, she really understood feminism as something that black women had created. And I think it’s worth unpacking in terms of that indefatigability that we see with her. Right. This what you’re talking about. There is another way. There is another way. There is another hustle. Let’s figure this out. Let’s figure this out. And I think the reason why she found so much alignment until literally her last day with civil rights movement, with lessons from that, with black folks, with black women, is that I think that she understood that, you know, look, what does it take when you’ve been kidnapped from a whole different other land and you’ve been shipped across seas and you’ve been told you’re not human and that you’re property and that your children aren’t even your children, they’re the property of the guy that raped you, who’s now selling them off and all of that. I mean, she looked at all of that and then saw that there was a never give up, that there was such a fight and such A fire that was constantly on the move. And I understand why she said that. She learned then so much from the black women around her who were constantly trying to figure out things in a system that claims equality for all, in a system that points a finger at other nations and a system that says that, look, look at our Constitution, and you should adopt it in your own country. And then she’s looking at Jim Crow. She’s looking at Jim Crow and Jane Crow at that very same time in which we’re pointing fingers elsewhere, in which we’re waving our Constitution, and at the same time that we’re waiving our Constitution. You have black moms who are raising money in order to fund the Civil rights movement. Movement. You’ve got Fannie Lou Hamer talking about being denied the right to vote in Mississippi and being taken to a jail that housed men and being beaten by the men in the jail at the whim and force of the guard. And then, you know, Fannie Lou Hamer is saying all of this because we want the right to vote. I mean, the term intersectionality has been bantied around a lot. But I think that what Gloria Steinem truly did was to understand the intersections of what it means to be stripped of your civil liberties and civil rights and aspirations and goals as a woman, and what that means to be stripped of all of those things as a black woman. Right. Recently, it was just a couple years ago, at the Ms. Foundation annual gala. You know, Gloria took the stage just for a very brief moment. Otherwise, everybody else who was on stage, they were women of color. There was a person who was trans. Right. Megan Markle was. Took the stage. Right. Gloria was there for just. She was there the whole evening, but on the stage just a little bit because she realized that this is not all about her, is about what are you doing to advance the lives of all other people. So, yes, an icon, but an icon who never believed herself to be more important than the movement that she was involved in.
Speaker A: It’s such a gorgeous transition to the question that, you know, is prickly in the obituaries, which is, you know, she was such a creature of her own era, very prescient about the need, as you said, for black and white women to work together, but also, in several episodes, blinded by the complexity of what that meant and what that required. And yet I’m so struck in reading the obituaries in the aggregate, Michelle, because there is this common theme you’ve just pulled on it, and I really want to lift it up because I think it’s so powerful and profound and speaks to us in this moment. And that is, she always saw the Volno. She always sided with the powerless, and sometimes she got things wrong. But I love reading about how her superpower was listening. That she didn’t just put herself kind of in the background, but that right up until the end, she was listening to other people and learning. And I think you started this conversation by talking about this moment that we’re in. And I’m really, really struck by the people who have come forward and said, she totally listened to me. She was always curious. She was always growing. She was deeply thoughtful about knowing what she didn’t know. And I guess I. I want to ask you what we can take from that in this moment.
Speaker D: You know, I wonder if part of that was the fact that she was also a journalist. Right. This sense that listening is important, that learning is important, that your presumptions should be tested, always should be tested, until you get to what it is that you truly can know. I think about that even in the formation of Ms. Magazine and the people who are writing in the magazine, who were people who were living out the realities, or people who were researchers, who were professors. Right. And so people who are deeply informed, and then also with a sense of how you must scrutinize the messages that you get. So moving away from advertisement early on, because understanding that if you’re talking about women’s liberation and then you’ve taken ad dollars that show women’s only role is that they’re vacuuming, they’re washing dishes, and things like that, like those are two inconsistent messages. So not only do you listen, but you have to listen with good judgment and good discernment. And I think that that is critically important. There’s something that comes to mind for me, Dalia, and that is looking into Gloria’s eyes. And it strikes me that there’s a generation of women like her generation of women that there are so many messages in their eyes, the way in which their eyes can just pierce and just see through you. And she. And she had that power with her eyes. And you can almost see it even in. In the photographs of where she’s looking to sew directly into the camera. Part of what I think is that she is part of a generation that understood what it means to persevere and understood the power of endurance and that it’s not instant, and there’s a lot to be learned from that. Access to contraception, access to abortion era and all of these different things. She fought hard for them, and she didn’t believe that things should be taken slowly, per se, but she did understand that these fights don’t always end up with something instant. And you can’t just give up the next day because you fought yesterday.
Speaker A: This has been a bittersweet interview, not simply because we’ve lost Gloria Steinem this week, but also because we’ve lost so much, much of what she stood for and fought for. And I am hardly the first person to say that Steinem dies this week with fewer rights than she had in her lifetime. Right. We have retrenched and gone backwards. She was fighting for abortion before Roe v. Wade. She was here to see the end of those rights in the wake of SB8 and Dobbs five years ago. Michelle, when SB8 was happening, you were on this podcast saying, please don’t call me hysterical.
Speaker D: We were.
Speaker A: This is the beginning of the end.
Speaker D: Exactly.
Speaker A: All of this puts in mind this quote from an interview she gave the New Yorker in 2015. You yourself referenced this earlier, and I think it. It’s really worth centering in this conversation. She said at the time, quote, people are always asking me, who will you pass the torch on to? The question makes me angry. She said, there is no one torch. There are many torches. I’m using my torch to light other torches. There shouldn’t have been a first Gloria Steinem. There won’t be a last one. End quote. I wonder, what is the message you take from that and you impart from that to the torchbearers who are standing, feeling a little bit lost this week, and a little bit as though the torches are flickering in a way that was not in the plan.
Speaker D: You know, we talk about this and we come together in the wake of Dolly Parton’s passing as well, who was on the COVID of Ms. Magazine. We have a piece up that I wrote about her on our website with Dolly’s cover there. And so, yes, that flickering of light. But here I think that there’s so much power and in fact, what she was mentioning, which is that we have to constantly. And it’s the right thing to do, to be lighting other torches, to be supporting other people, to know when it is, that we make space, make room, that we lift up, and that we engage in work that’s transformational and not transactional, and that we truly understand the power of what it is that we have accomplished. Again, to sort of speak back to that Jim Crow, Jane Crow, and lessons that we can take from that, which I think she did all the time. And here’s one of them. Never let them steal your joy. I think she understood that and I think that that is really important for us now when so many are feeling defeated, are feeling hurt, are feeling burnt out, feeling as if they are dispossessed of their own government and their citizenship being challenged. And yet we must remember to never allow those forces that be distill that very important part of our humanity from ourselves and an essential part of that is joy and even raising a joyful noise in the wake of Gloria Steinem’s passing. I think that she would want that.
Speaker A: Gloria Steinem’s foundation has asked that those who are grieving her loss light a candle in her arms and for donations to be made to her charity, Gloria’s Foundation. Professor Michelle Bratcher Goodwin is the Faculty Director at the o’ Neill Institute for National and Global Health Law at Georgetown University. She is the executive producer of Ms. Studios and host of the first and flagship Ms. Podcast on the issues.
Speaker D: Thank you so much, Dalia. It’s wonderful to be with you. Thank you.
Speaker A: That’s a wrap for this week’s episode, but there’s more in a moment for our Amicus plus members. Madiba Denny, AKA Bard and Bougie, AKA Deputy editor of Balls and Strikes, AKA author of the book the Originalism Trap, is joining me for this week’s Amicus plus bonus episode where she’s going to bring us up to date on the TikTok of the mail in ballots cases we talked about with Irwin and she’s going to give us a look at what’s next. Visit slate.comamicus+ to join us. Members support our work. Get loads of extras like bonus episodes, games and exclusive access to events. What’s more, your Slate plus membership unlocks ad free listening across all of Slate’s podcast and paywall. Free reading@slate.com slate.com amicusplus for the full package. You can also subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify. Our bonus episode is available for you to listen to right now. We’ll see you there. Thank you so much for listening and thank you so much for your letters and your questions. Keep them coming. We are reachable by email@amicuslate.com you can find us@facebook.com Amicus Podcast. You can also leave a comment if you’re listening on Spotify or on YouTube or rate us and review us on Apple Podcasts. Sara Burningham is Amicus supervising producer. Our producer is Sophie Summergrad. Extra special thanks to Joel Meyer again this week. Hilary Fry is Slate’s editor in chief. Susan Matthews is executive editor. Mia Lobel is executive producer of Slate podcasts, and Ben Richmond is our senior director of operations. We’ll be back with another episode of Amicus next week.
Speaker C: Week.
Speaker A: Until then, take good care.