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works. Yeah. Wi-Fi.

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at Comcast corporation.com/Wi-Fi.

1:03

This idea that critiquing

1:05

the judicial system or judicial

1:07

opinions... is itself corrosive of

1:09

the rule of law is

1:11

a kind of, through the

1:13

looking glass, kind of bizarre

1:16

world conception of how lawyers

1:18

are supposed to engage with

1:20

the justice system. Hi and

1:22

welcome back to Amicus. This

1:24

is Slate's podcast about the courts and

1:26

the law and what used to be

1:29

the law and also about... how we

1:31

weather whatever is coming and how we

1:33

move through it together under the color

1:36

of really understanding what law means. I'm

1:38

Dalia Lithwick from our family here at

1:40

Slate to you and yours. We wish

1:42

you a happy new year and we

1:45

thank you for tuning in as we

1:47

gingerly step into this new year, this

1:49

new administration, and the same old Supreme

1:52

Court. The same old Supreme Court is

1:54

going to swing back into session

1:57

next week with a huge tick-talk

1:59

case that Mark and I previewed

2:01

a few weeks back and we're

2:04

going to be combing through the

2:06

arguments in next week's show, but

2:08

New Year's at Amicus wouldn't be

2:11

New Year's at Amicus without my

2:13

dear friend, the National Treasure, our

2:16

annual New Year's. profit and whisper

2:18

Cheryl and Eiffel. Cheryl is the

2:20

inaugural Vernon E. Jordan Jr. Esquire

2:23

Endowed Chair in Civil Rights at

2:25

Howard University. Prior to that, she

2:27

served as the seventh president and

2:30

director counsel of the NWACP Legal

2:32

Defense and Education Fund. As the

2:34

Vernon Jordan Chair, Cherylen has launched

2:37

a multidisciplinary center focused on promoting

2:39

the vision and values articulated in

2:42

the 14th Amendment of the Constitution

2:44

as the central source of America's

2:46

post-civil war identity. And I think

2:49

it's become an amicus tradition to

2:51

invite Cheryl and onto this show

2:53

in the new year as a

2:56

kind of control alt-delete. for the

2:58

dispiriting, moldering, sad face, thinking about

3:01

justice. Sherlin is always able to

3:03

somehow make her way through the

3:05

dumpster fire of recent years without

3:08

giving up hope, without losing sight

3:10

of what really matters, and by

3:12

reminding us how we're going to

3:15

claw our way forward, this is

3:17

a really rough time for all

3:19

of us, but I want to

3:22

tell you that as a personal

3:24

matter, I always turn to Sherlin

3:26

whenever I find myself. either normalizing

3:29

or minimizing that which is insane

3:31

or succumbing to a feeling of

3:33

powerlessness in a really frightening world.

3:35

Cheryl, that was a hella wind

3:38

up. But welcome back. I love

3:40

it. Keep it coming. I was

3:42

hoping you would just keep going.

3:45

Happy holidays to you and to

3:47

your family and happy or whatever

3:49

the ambiguous emoji is that we

3:51

attach to it 2025. I love

3:54

being here on New Year's. It's

3:56

a way for me to set

3:58

myself. I don't have the answers,

4:01

but I'm happy. talk about how

4:03

I'm thinking and just want to

4:05

say also that your podcast and

4:07

you and Mark Joseph Stern have

4:10

been, you know, I listen to

4:12

you in my car all the

4:14

time. And, you know, there are

4:17

ways that I hold myself steady,

4:19

and I would just say for,

4:21

you know, people who do this

4:23

work, who believe in democracy, justice,

4:26

who believe in the rule of

4:28

law, you know, make sure that

4:30

amicus is part of your weekly

4:33

listen seriously, because you just, we

4:35

need to hear one another, and

4:37

we need to hold the line.

4:39

We're going to be pulled so

4:42

far off of what we know

4:44

to be true, what we know

4:46

to be right, what we know

4:49

to be ethical, and... Some of

4:51

us have to be able to

4:53

hold the line and we do

4:55

that by reinforcing one another in

4:58

knowing what the truth is. I

5:00

think I want to start if

5:02

it's okay with you with the

5:05

Chief Justice's little report on the

5:07

state of the judiciary. It always

5:09

drops silently on New Year's Eve.

5:11

This was a kind of owed

5:14

to self. pity he wants us

5:16

to know that judges and justices

5:18

feel very scared and this is

5:21

a common refrain from him we've

5:23

been hearing this in the last

5:25

couple of years but I would

5:27

love to hear your thoughts if

5:30

you would on in some sense

5:32

the uncontroversial proposition that we shouldn't

5:34

threaten and terrorize judges but it

5:37

kind of went way off the

5:39

rails in terms of tone defery

5:41

this time. Yeah, so the year-end

5:43

report always makes my New Year's

5:46

Eve special, and it did not

5:48

disappoint this time. It is obviously

5:50

of a piece with an ongoing

5:53

conversation that's been happening in which

5:55

one or another of the justices

5:57

and now that Edith Jones on

5:59

the Fifth Circuit Court of Appeals

6:02

has joined in, judges who are

6:04

pushing back against the idea of

6:06

legal scholars, professors, members of Congress,

6:09

criticizing. either their decisions, the processes

6:11

of the court, promoting court reform,

6:13

critiquing ethical issues on the court,

6:15

critiquing the failure to complete financial

6:18

disclosures and so forth, and packaging

6:20

all of that as intimidation, as

6:22

an effort to try and intimidate

6:25

judges because those who are more

6:27

progressive or liberal don't like the

6:29

decisions, the substantive decisions. of the

6:31

conservative court or of conservative justices.

6:34

And this strikes me as incredibly

6:36

manipulative and really dishonest. We are

6:38

supposed to improve every aspect of

6:41

our democracy. We are supposed to

6:43

critique aspects of how the president

6:45

engages in the use of his

6:47

power, which is why we have

6:50

a thoroughgoing conversation about presidential pardons,

6:52

for example. We are supposed to

6:54

critique Congress. about their conduct and

6:57

their processes, which is why we

6:59

have a thoroughgoing conversation about whether

7:01

members of Congress should engage in

7:03

stock trades, right? And we are

7:06

also supposed to have a thoroughgoing

7:08

conversation and perhaps even more so

7:10

about the judiciary because the rule

7:13

of law is such a powerful

7:15

pillar of any healthy democracy. And

7:17

lawyers in particular who are part

7:19

of the profession that holds up

7:22

the rule of law. have an

7:24

obligation, I thought, to improve the

7:26

system. And in fact, there are,

7:29

you know, any number of preambles

7:31

in our, you know, in our

7:33

codes of conduct and so forth

7:35

that talk about, you know, lawyers

7:38

working for law reform and lawyers

7:40

working to improve the system. That's

7:42

actually part of our job. So

7:45

the first thing is that to

7:47

the extent it's directed at lawyers,

7:49

it's so wildly off base. But

7:51

what is most disturbing is the

7:54

packaging of this as intimidation and

7:56

the connection of it to the

7:58

unfortunate cases of violence. threats being

8:01

made against judges. That is actually

8:03

unconscionable and it was

8:05

probably most starkly presented

8:07

by Edith Jones on the

8:10

panel at the recent Federalist

8:12

Society Conference in which she tried

8:14

to paint the scholarly work. And I

8:16

would say even scholarly tweets,

8:18

because Steve Blattock's tweets

8:21

are considerably more scholarly than

8:23

mine, of Steve Blattock, a

8:26

highly respected law professor at

8:28

Georgetown, who has written extensively

8:31

about the court's emergency docket,

8:33

has written a book about the

8:35

shadow docket to suggest that

8:37

this temperate scholarly law

8:39

professor is somehow responsible for

8:42

violent threats that apparently

8:44

have been issued against

8:46

Judge Matthew Casmarik in

8:48

Texas. And, you know, he was

8:50

kind of ambushed at this Federalist

8:53

Society Conference, but, you

8:55

know, I feel like the Chief

8:57

Justice report, by lumping together, you

8:59

know, the idea of criticism and

9:01

violence, kind of endorsed that presentation

9:04

in a way that I find

9:06

quite chilling, and I think it's meant

9:08

to be chilling. Two things that

9:11

are really important about

9:13

what you're saying that

9:15

I just want to tug at

9:17

for one moment. And one is,

9:19

you know, this is a court

9:21

that can be so reckless about

9:23

harms to others. This is a

9:25

court that seems to not give

9:28

a nanoseconds thought to actual

9:30

violence to, you know, reproductive

9:32

rights violence to a woman

9:35

whose stalker was terrorizing her

9:37

and there's the court kind

9:39

of chuckling through oral argument.

9:42

And so there is this

9:44

kind of hyper-protectiveness about its

9:46

own safety that really chimes

9:49

in a painful way when

9:51

you layer it up against

9:53

the almost total disregard for

9:56

harms to people of color

9:58

and minorities and... women

10:00

and trans youth, you know, no

10:02

real, self-knowledge there from a chief

10:04

justice that we used to think

10:06

of as a fairly high EQ

10:09

reader of the room. And I

10:11

think the other thing that I

10:13

would love you to talk more

10:15

about is this like really cynical,

10:17

he did it last year as

10:20

well, use of sort of the

10:22

history of the civil rights movement.

10:24

to try to kind of co-op

10:26

the notion that we very much

10:28

like the brave judges, you know,

10:31

who stood on the on the

10:33

cliff tops alone in the civil

10:35

rights era and suffered the consequences.

10:37

We are them now. And you

10:39

say this in your sub-stack, Cheryl,

10:41

and we'll link to it in

10:44

the show notes. But I just

10:46

think the level of... cynicism here

10:48

almost cannot be, it's not just

10:50

Edith Jones and Judge Justice. This

10:52

is the chief justice of the

10:55

United States embracing this notion that

10:57

we are the real legacy of

10:59

the civil rights heroes. It angers

11:01

me obviously, but I also often

11:03

get a chuckle out of it

11:06

because, you know, I sometimes think

11:08

that's so much of what we

11:10

are seeing. in our profession and

11:12

among conservative judges and litigators, isn't

11:14

this kind of traumatic response to

11:16

the heroism of the civil rights

11:19

movement and the work of civil

11:21

rights lawyers and the work of

11:23

judges deciding civil rights cases. There's

11:25

a traumatic response that has resulted

11:27

in this effort to cloak themselves

11:30

with the heroism of that period

11:32

and to suggest that there is

11:34

something equal. about what they are

11:36

doing to the courageous efforts of

11:38

those who worked through the difficulty

11:41

of trying to make this country

11:43

a true democracy during the civil

11:45

rights movement. So I always kind

11:47

of chuckle because the trauma is

11:49

so evident, but it also makes

11:51

me angry because it is fundamentally

11:54

a historical and untrue. So in

11:56

his year-end report, Chief Justice Roberts

11:58

cites to weighty's wearing. He cites

12:00

to, you know, obviously Chief Justice

12:02

Earl Warren, both of whom received,

12:05

you know, threats of violence against

12:07

them before their civil rights decisions.

12:09

And I just found myself deeply

12:11

offended, particularly by the Wayde's wearing

12:13

comparison, because Wayde's wearing was the

12:16

sion of an old Charleston family,

12:18

who became a federal judge, and

12:20

with his wife, his second wife,

12:22

started on a path as more

12:24

and more civil rights cases came

12:27

before him of trying to learn

12:29

about the history of race in

12:31

this country. He and his wife

12:33

would read together every night. They

12:35

would question each other. He was

12:37

being exposed to a world he

12:40

had never known. He lived in

12:42

the most attractive house, you know,

12:44

on the main street. He was

12:46

fully in Charleston society. And as

12:48

he starts to learn, these cases

12:51

are coming before him, and he

12:53

is also doing what judges are

12:55

supposed to do in litigation, which

12:57

is learn from litigation. And he

12:59

issues some decisions that are some

13:02

of the most important in a

13:04

number of civil rights cases, including

13:06

his dissent in the Briggs versus

13:08

Elliot case, which was the South

13:10

Carolina Brown case. and the court

13:12

ruled against the plaintiffs against Thurgood

13:15

Marshall in that case, but Judge

13:17

Waring's dissent became the template for

13:19

what became the majority decision in

13:21

Brown versus Board of Education. And

13:23

as a result of his civil

13:26

rights decisions, he was certainly subject

13:28

to violent attack. A bomb was

13:30

thrown at his house one evening

13:32

as he was home with his

13:34

wife, but he was ostracized by

13:37

the society that he had been

13:39

a part of. So I emphasize

13:41

this because it wasn't just that

13:43

there were violent threats by racist,

13:45

it is that the society of

13:48

people of which he was a

13:50

part, which was upper class Charleston

13:52

society, his colleagues. within the judiciary

13:54

and so forth, ostracized him and

13:56

his wife. They were socially dead.

13:58

And as a result, he moved,

14:01

he and his wife moved. from

14:03

South, from Charleston, South Carolina, to

14:05

New York, where he lived out

14:07

the rest of his life. He

14:09

never returned until he was buried.

14:12

And I spoke at the dedication

14:14

of the courthouse to Whitey's wearing.

14:16

The name was changed. It had

14:18

been named after Ernest Hollings, the

14:20

senator from South Carolina, and it

14:23

was, and with his consent, with

14:25

Holling's consent, it was named after

14:27

Whitey's wearing. And I was asked

14:29

by Vernon Jordan to speak for

14:31

him at that dedication of the

14:33

courthouse. in the year-end report. And

14:36

the idea that we would be

14:38

comparing Matthew Casmaric in Texas to

14:40

weighty's wearing or to Judge William

14:42

Wayne Justice, who was raised by

14:44

Judge Edith Jones on that panel

14:47

when she was kind of engaged

14:49

in this tirade against Professor Vlatic,

14:51

who had written about the one

14:53

judge district in Texas where conservative

14:55

lawyers are filing their cases so

14:58

they can appear before Judge Matthew

15:00

Casmaric. And she said, you know,

15:02

with triumph in her voice, what

15:04

about Judge Justice, referring to William

15:06

Wayne Justice, who civil rights litigants

15:08

loved to appear before and would

15:11

try to appear before during the

15:13

60s and 70s, he was appointed

15:15

by President Johnson, and he's considered

15:17

a champion by civil rights litigators.

15:19

It's no comparison to Matthew Casmeric.

15:22

First of all, the cases that

15:24

were filed before Judge Justice were

15:26

filed in a district that was

15:28

associated with the very claims that

15:30

were being made. It wasn't just,

15:33

you know, civil rights attorneys from

15:35

all over the country with claims

15:37

that were not connected to Texas

15:39

filing their cases in Texas, right?

15:41

Because that's what's happening with Casmeric.

15:44

you know, of those civil rights

15:46

era judges who we think of

15:48

as kind of champions, is that

15:50

they were in the small minority

15:52

and it was most of the

15:54

other judges who actually were abusing

15:57

the system. I've said before that

15:59

Thurgood Marshall, when he appeared, the

16:01

first time he appeared before Judge

16:03

Wade he's wearing, he said it

16:05

was the first time he had

16:08

ever been really able to try

16:10

his case, that he had been

16:12

able to put on all his

16:14

evidence that the judge actually listened

16:16

to him, didn't run over him,

16:19

and he said he was astonished

16:21

that Judge Wearing allowed him to

16:23

litigate his case. So it wasn't

16:25

that these judges were so extraordinary

16:27

justice. and wearing, and that somehow

16:29

civil rights litigated were manipulating the

16:32

system, it was that most of

16:34

the judges, Judge Kops, Judge Mies,

16:36

so many of the other southern

16:38

judges, would not give a fair

16:40

hearing to civil rights claimants. You

16:43

know, the judges who turned their

16:45

back on Constance Baker Motley, or

16:47

who wouldn't say her name, those

16:49

were the other judges in those

16:51

districts. So to make that comparison

16:54

somehow... and to endorse it in

16:56

this year-end report, it's unfair, it's

16:58

a distortion of that history, and

17:00

it's once again an attempt to

17:02

cloak oneself in the history of

17:04

the civil rights movement. And of

17:07

course, the worst example of this

17:09

is, you know, Justice Alito saying

17:11

that basically, you know, Dobbs overturning

17:13

Roe is like brown overturning Plessy.

17:15

Like, you know, you can't just

17:18

snatch from this history the snippets

17:20

that you want. to make your

17:22

point and suggest that they are

17:24

equivalent because they are not. And

17:26

there are important differences that actually

17:29

speak to our system. Our system

17:31

is not always fair. It was

17:33

not fair. Judge Cox, you know,

17:35

who Constance Baker Motley called the

17:37

most racist judge who ever sat

17:40

on the federal bench, she herself,

17:42

when she wrote that, by the

17:44

way, was a federal judge in

17:46

her memoir. But she had litigated

17:48

before him. Was she not supposed

17:50

to speak to speak? So I

17:53

just, you know, this idea that

17:55

critiquing the judicial system or judicial

17:57

opinions is itself corrosive of the

17:59

rule of law. is a kind

18:01

of, through-the-looking glass, kind of

18:03

bizarre world conception of how

18:06

lawyers are supposed to engage with

18:08

the justice system. More in a

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Too, wherever you get your

19:25

podcasts. It's so interesting

19:27

because this is the same Chief

19:30

Justice Roberts who is never

19:32

above calling other judges partisan or

19:34

political right whether it's Obergefeld

19:36

right there being partisan and political

19:39

when he calls out the liberal

19:41

members of the court because

19:43

he says they're politicizing the court

19:45

in their dissent so it is

19:48

such a fascinating thing to

19:50

again sort of want to cloak

19:52

yourself in dispassionate neutrality and

19:54

at the same time say, oh,

19:57

all these biased

19:59

people. They're all biased.

20:01

I am, you know, the one

20:03

true shining light of objectivity. The

20:06

other piece of cynicism, I just

20:08

have to flag here because it

20:11

really wrinkles after the immunity decision.

20:13

To the extent that the immunity

20:15

decision is a one-time only Donald

20:18

Trump decision, right? I mean, it

20:20

is clearly saying, and Donald Trump

20:23

has interpreted it to mean, and

20:25

we'll talk about this in a

20:27

minute, that whatever he does, that

20:30

his criminal is fine now, it's

20:32

fascinating to see that by some

20:35

transitive theory of the three branches

20:37

of government. Quite literally, John Roberts

20:39

is sort of making the argument

20:42

that whatever it is that I

20:44

think... is what the judiciary is.

20:47

And it's just the sort of

20:49

narcissism more self-regard at work here,

20:51

which is, I'm having these feelings,

20:54

I'm having this experience, and therefore

20:56

I can extrapolate it to a

20:59

theory of the entire Article III

21:01

judiciary. I mean, you've just immunized

21:03

Donald Trump, and now you are

21:06

immunizing yourself as a judiciary. You

21:08

know, you're already the most powerful

21:10

branch. Now you're immunizing yourself from

21:13

criticism. And it is such a

21:15

Trumpy atonal move from somebody who,

21:18

as I said, we used to

21:20

describe as kind of much more

21:22

adept at understanding how a message

21:25

would land. This is the trumpiest

21:27

move I've seen from him, next

21:30

to the immunity decision, which was

21:32

the trumpiest decision I've ever seen

21:34

from him. You know, but that

21:37

helps in a way, because I

21:39

think this was an unfortunate move.

21:42

You really show your hand when

21:44

you have power and you use

21:46

that power to try to keep

21:49

others from questioning you. And that's

21:51

the moment that we're compelled to

21:54

face. on one side with Trump,

21:56

but I think this year-end report

21:58

and the ongoing conversation that's been

22:01

happening, you know, not only at

22:03

the Federalist Society panel, but Justice

22:06

Alito's speech a couple years ago

22:08

at Notre Dame and all the

22:10

ways in which there's been this

22:13

pushback against criticism, even as more

22:15

revelations come out about, you know,

22:18

more gifts to, you know, Justice

22:20

Thomas and so on and so

22:22

forth, is really not to focus

22:25

on them and their. distortions or

22:27

narcissism but to focus on what

22:30

we're going to do about it

22:32

and how we're going to conduct

22:34

ourselves because there obviously is an

22:37

attempt to ensure that whatever they

22:39

are going to do over the

22:42

next year or two and they've

22:44

really done quite a bit already

22:46

will happen without our pushback that

22:49

we will become fearful of criticizing

22:51

them or we will feel that

22:53

we are somehow crossing some rubicon

22:56

by engaging in responsible criticism of

22:58

cases, of opinions, or of the

23:01

structural system, or by calling for

23:03

court reform, or by calling for

23:05

an expansion of the court that

23:08

this is somehow going to be

23:10

framed as kind of traitorous conduct

23:13

to the rule of law. And

23:15

so if we can see that

23:17

that's the framing, then that means

23:20

we have to decide who we're

23:22

going to be in this moment

23:25

as that increasingly becomes the line

23:27

that a certain set of judges

23:29

are setting up for us. You

23:32

will recall during Trump's campaign. He

23:34

said, have you heard how people

23:37

are talking about Supreme Court justice?

23:39

They should be jailed for that.

23:41

Trump suggested jail for people who

23:44

are criticizing the court. So

23:46

it's helpful for us to know

23:48

that that is also part of

23:51

the set of tactics that are

23:53

going to be used in the

23:55

coming years. I think many of

23:57

us are well aware of Trump's

23:59

other tactics. it relates to the

24:01

legislature, as it relates to protests,

24:03

as it relates to state governors,

24:05

there are all kinds of ways

24:07

in which power is going to

24:09

be wielded to try to minimize

24:11

the growth of resistance to it.

24:13

And I think what the Chief

24:15

Justice has done with this year-end

24:17

report is also trying to get

24:20

out ahead of what he fears

24:22

will be ongoing critiques. I completely

24:24

agree with everything that he said

24:26

about violence and about actual threats

24:28

to the judiciary. It's unconscionable. I

24:30

have spoken out against it. You

24:32

know, I was one of the

24:34

people reeling against Congress for the

24:36

length of time it took to

24:38

pass legislation to protect judges after

24:40

Judge Solis' federal district judge in

24:42

New Jersey, after her son was

24:44

killed at her home. It is

24:46

absolutely unconscionable. and dangerous to the

24:49

rule of law. That is true

24:51

intimidation and utterly unacceptable. And I

24:53

have no problem with the Chief

24:55

Justice of the United States using

24:57

his year-end report to speak out

24:59

against that. Those who would commit

25:01

violence against the court, however, are

25:03

probably not reading the Chief Justice's

25:05

year-end report. That's not really who

25:07

the reports targeted at. And I

25:09

think we can all agree that

25:11

there should not be violence against

25:13

judges. So I don't think that

25:16

was really the point. So that's

25:18

low-hanging fruit and that's obvious and

25:20

I have no problem and I

25:22

don't think any of us have

25:24

any problem speaking out against that

25:26

issue. But what I think the

25:28

attempt is is to tamp down

25:30

what has been a set of

25:32

very important I think and powerful

25:34

critiques of how the court has

25:36

conducted itself and he is the

25:38

leader of the court and maybe

25:40

he's feeling it personally he should.

25:42

because he's the leader and the

25:45

manager. And what's so disappointed me

25:47

in this Dahlia is that he

25:49

could have in one line simply

25:51

said, you know, as he did

25:53

at the end, that, you know,

25:55

judges have to, of course, behave

25:57

in such a way that the

25:59

public... has confidence and he could

26:01

have said and for that reason

26:03

you know I will be personally appealing

26:05

to my colleagues and to you know

26:08

judges in federal courts throughout the country

26:10

that we redouble our efforts you know

26:12

to conduct ourselves in such a way

26:15

as to ensure that we earn the

26:17

public's confidence. It could have been one sentence

26:19

that would have been a signal to

26:21

us that he's heard the legitimate critiques

26:24

right and that for those who have not

26:26

cleaned their houses they need to do so.

26:28

The truth is that financial disclosures, many

26:31

of them, were not made by

26:33

Justice Thomas and were not made

26:35

by Justice Alito and they have

26:37

had to supplement their reports

26:39

and more revelations have come

26:41

out even after the supplement. That's

26:43

undeniable. Those are facts. That's

26:46

not a broadside attack. And they need

26:48

to clean it up. So I just think he

26:50

could have done that and his refusal to

26:52

do that speaks volumes about the

26:54

line that he's drawing. and that

26:56

they are drawing, and that, you know, others

26:59

in the federal judiciary who

27:01

will follow his example are

27:03

drawing, that suggests that critiques

27:05

of the court are somehow corrosive

27:07

of the rule of law. So,

27:09

Cheryl, you've maybe just given us

27:12

one framework to think about what's

27:14

different and what to be fearful

27:16

of, and I think it's a

27:18

useful one, which is when power

27:20

is trying to use its own

27:22

power to quell criticism, that's a

27:24

tell. Be really mindful of that.

27:26

That's Elon Musk, great. That's Donald

27:28

Trump. That's Cash Patel, right? We

27:31

should be really aware that that

27:33

is exactly this move. It's a

27:35

kind of perfect segue to something

27:37

else. But it's the filing that was

27:39

submitted last week by Donald Trump's lawyer,

27:41

John Sauer, in the Tiktok case. And

27:43

I don't think we need to go

27:45

deep in the weeds of the merits

27:47

on that case. We'll do it on

27:49

another show. But I think we can

27:52

at minimum acknowledge that this is a

27:54

filing, you know, it's not on either

27:56

side of the case. It's not seeking

27:58

relief that the court can grant. Steve

28:00

Latic, who's going to get named

28:02

checked a lot in this show.

28:04

This is a pleading that just

28:07

kind of represents that as a

28:09

function of Donald Trump, right, again,

28:11

the one right only president, his

28:13

past and future awesomeness. He should

28:16

just be given an opportunity to

28:18

jump into this case and do

28:20

an unspecified awesome future deal in

28:22

the unspecified awesome future. I did

28:25

a dramatic reading of it last

28:27

week. It is the weirdest filing.

28:29

It's not. the thing that a

28:31

future SG files, it's a tongue

28:34

bath, and it is so weird,

28:36

Cheryl, and because I think when

28:38

I try to sort of measure

28:40

how far we've come from 2017

28:43

till today, this is a kind

28:45

of really creepy avatar for the

28:47

kinds of arguments that are going

28:49

to... be made and I think

28:52

you wrote about it at the

28:54

time. This is just like empty

28:56

and sycophantic. This is the opposite

28:58

of what we want young lawyers

29:01

to see and I'd love for

29:03

you to speak for a minute.

29:05

You know, it was easy to

29:07

bathe this away as just silly.

29:09

It was comic. This is really

29:12

dark. Yeah, I didn't just ignore

29:14

it because You know, what young

29:16

lawyers are going to learn is

29:18

what wins. You know, it's worth

29:21

remembering that John Sauer is the

29:23

lawyer who argued Trump's immunity case

29:25

in the Supreme Court and won.

29:27

He is a successful Supreme Court

29:30

litigator. And it seems to me

29:32

that someone at that level, one

29:34

expects to be a very experienced

29:36

and bright lawyer that one could

29:39

emulate. And so to read this

29:41

filing is chilling in a way.

29:43

I mean, you know, in the

29:45

filing where he talks about, you

29:48

know, Trump's period, negotiation skills. He

29:50

is the only one, you know,

29:52

it's Trump's line, I'm the only

29:54

one who can do it, right?

29:57

He's the only one who can

29:59

solve this with his awesome negotiation

30:01

skills, right? None of which we

30:03

have any evidence of, but that's

30:06

neither here nor there. The purpose

30:08

of the filing was simply to

30:10

do that, was simply to offer

30:12

up this incomium to Trump and

30:15

to just put him in the

30:17

mix. and to suggest to the

30:19

court that he should always be

30:21

in the mix. I mean, that's

30:24

what I took the filing to

30:26

be. Just remember, you know, don't

30:28

do anything until we were sure,

30:30

you know, what Trump wants to

30:33

do. And I really worry about

30:35

just as a matter of our

30:37

profession when these kinds of filings

30:39

are accepted and perhaps not commented

30:42

upon by judges or justices that...

30:44

that this will spread, that people

30:46

will think that this is an

30:48

appropriate way to litigate, that, you

30:51

know, if you are trying to

30:53

appeal to a Judge Ho, you

30:55

know, or to a Justice Alito,

30:57

or to an Eileen canon, that

30:59

you can make these kinds of

31:02

arguments that are law-free, you know,

31:04

not substantive, but offer up... tribute

31:06

to the king. This is corrosive

31:08

of our very profession. You know,

31:11

Nancy Gertner, our mutual friend and

31:13

former federal judge and amazing woman

31:15

and badass, wrote, you know, a

31:17

couple weeks ago about it'll have

31:20

to be the judges. And I

31:22

think she's absolutely right that when

31:24

judges receive this, so to talk

31:26

about, you know, what should people

31:29

do going forward? This is not

31:31

about what side you fall on

31:33

of the issue, whether you were

31:35

pointed by a Democrat or a

31:38

Republican. When you get a filing

31:40

like this in a consequential case

31:42

in the Supreme Court or in

31:44

a federal district court or in

31:47

a federal court of a... appeals,

31:49

I think it's important for judges

31:51

to point out, right, that this

31:53

filing added nothing to the deliberations,

31:56

right, you know, appear to simply

31:58

be, you know, an empty tribute

32:00

to the president who's not a

32:02

party in this case, right, to

32:05

say something to indicate that this

32:07

is not how we advocate. This

32:09

is not advocacy. I don't know

32:11

that judges and justices will do

32:14

that. That's what worries me. But

32:16

I would love to see that

32:18

happen because otherwise if this becomes

32:20

a way or perceived as a

32:23

way of persuading judges, lawyers want

32:25

to win. Lawyers want to win.

32:27

And if this becomes seen as

32:29

the way to do it, we

32:32

will degrade this very profession into

32:34

one in which saying the appropriate

32:36

words of tribute take the place

32:38

of actual advocacy. It's such an

32:41

important footnote to the conversation we've

32:43

been having both on this show

32:45

and sort of in the public

32:47

conversation about obeying in advance. And

32:49

the reason I love that piece

32:52

that Judge Gertner wrote with Joel

32:54

Cohen in the New York Times

32:56

that you're referencing is because it

32:58

was a sort of clarion call

33:01

to judges, be really mindful that

33:03

you could obey you know you

33:05

you think this is business as

33:07

usual you could be subject to

33:10

this for all of the reasons

33:12

that you're saying, not just that

33:14

young lawyers in the profession are

33:16

going to obey in advance, but

33:19

that you may not see this

33:21

in yourself. And then it's just

33:23

a really interesting kind of roadmap

33:25

to this is all the stuff

33:28

that could happen. These are the

33:30

implications. I loved the concreteness of

33:32

it, right, because it forces you

33:34

as a jurist to think about,

33:37

oh, yeah, that could happen, that

33:39

could happen. It does raise the

33:41

question. for me and you and

33:43

I talk about this every time

33:46

I think you come on the

33:48

show and I keep hearing you

33:50

say nothing is going to change

33:52

in the next four years unless

33:55

lawyers and law firms and big

33:57

law and bar associations and corporate

33:59

lawyers really step up and you

34:01

said that in 2016 you've been

34:04

saying it for a long time

34:06

it feels to me tell me

34:08

if I'm wrong Cheryl and that

34:10

an awful lot of those entities

34:13

that were kind of like last

34:15

time around or even more this

34:17

time around, they seem awfully content

34:19

to just sort of slip into

34:22

the Trump world theory of, you

34:24

know, it wasn't that bad last

34:26

time or, you know, it's good

34:28

for good for my investments or

34:31

if it were really bad, someone

34:33

would be doing something. So am

34:35

I wrong in saying that our

34:37

profession seems even more asleep at

34:39

the switch than it might have

34:42

been back in 2016? Yeah, I

34:44

think that it's okay for us

34:46

to admit that we've suffered some

34:48

body blows that have taken the

34:51

wind out of many, right? I

34:53

think the Section 3 14th Amendment

34:55

case, you know, decided by the

34:57

Supreme Court that Trump could not

35:00

be removed from the ballot. I

35:02

think the immunity case was mind-blowing

35:04

essentially immunizing the president's actions and

35:06

ensuring that, you know, there would

35:09

be no accountability at the top

35:11

for January 6th. I think the

35:13

outcome of this election, which, you

35:15

know, I think many did not

35:18

expect, many feared. So I think

35:20

that everyone's a little bit had

35:22

the wind knocked out of them.

35:24

So I want to be charitable,

35:27

you know, and say... I get

35:29

it, right? And I too have

35:31

had to pause. And a number

35:33

of us have just kind of

35:36

withdrawn for a minute to collect

35:38

our thoughts, to collect our spirits,

35:40

to prepare ourselves. And I think

35:42

that's the right thing to do.

35:45

In fact, I have counseled people

35:47

to do that because it's going

35:49

to get crazy quick. going to

35:51

be fast. And then I think,

35:54

you know, some of the cabinet

35:56

nominees that have been announced, like,

35:58

all of this has suggested that,

36:00

wow, this is going to be

36:03

crazy town in ways that it

36:05

was not even in 2016. So

36:07

I want to be charitable about

36:09

that. At the same time, one

36:12

of the things I think is

36:14

troubling about what I'm hearing is,

36:16

you know, well, he won. And

36:18

I, you know, there are certain

36:21

things in a democracy that are

36:23

not subject to plebiscite, right? The

36:25

rule of law is one of

36:27

them, you know, if everyone votes

36:29

against the rule of law, do

36:32

we just not have it? I

36:34

don't, you know, it's kind of

36:36

like, so I've often been, you

36:38

know, just kind of wrestling with

36:41

this, you know, as people see

36:43

the outcome of the election, I

36:45

say, well, this is what the

36:47

American people say they want it,

36:50

and, and of course, and of

36:52

course, That's not necessarily true. We

36:54

all understand misinformation, disinformation, people believing

36:56

things that are not true, people

36:59

not being aware because of our

37:01

information, worm holes of information that

37:03

they should have known because of

37:05

lies, because we know all of

37:08

that is true and that's all

37:10

going to shake out, you know,

37:12

I think over the next few

37:14

years of what did people think

37:17

they were voting for. But that's

37:19

not really the point. You know,

37:21

if you conducted a plebiscite in

37:23

1954 before... the majority of Americans

37:26

would not have voted to end

37:28

segregation and 1967 would not have

37:30

voted in favor of interracial marriage.

37:32

Like these are not things that,

37:35

well, that's what the people want

37:37

is the answer. You know, and

37:39

I think we have a difficulty

37:41

in our country because so much

37:44

of our public narrative and discussion,

37:46

including among lawyers and in our

37:48

profession, is framed in partisan context.

37:50

And so people think it's just

37:53

like, well, if you are on

37:55

this side, then it's this and

37:57

if you are on that side.

37:59

and it's that and see both

38:02

sides. This is what I was

38:04

railing against in 2016 and

38:06

2018 and 2020, and again,

38:08

is like, do we understand

38:10

what are the core

38:13

irreducible principles that hold

38:15

us together as lawyers and

38:17

as a profession? And to the

38:19

extent we don't, this

38:21

leads to the unraveling

38:24

and the timidity that you

38:26

were referring to. Because if you believe

38:28

in the rule of law, then it hardly matters

38:30

which side, it's that there are some things

38:32

that are just unconscionable to get back to

38:34

the Supreme Court again. It's one of

38:36

the things that I just don't understand

38:39

about, you know, the criticisms of the

38:41

court. Do people think it's okay for people

38:43

to give millions of dollars in gifts to

38:45

Supreme Court justices and have them not be

38:47

reported? I don't, I mean, what does that

38:50

have to do with a partisan, if that were

38:52

true? of Justice Kagan, I would

38:54

think it was wrong. I mean,

38:56

I don't understand how that's a

38:58

partisan issue, except that it seems

39:00

to be the Republican appointed

39:02

justices who have most likely

39:04

been the recipients. Like, what's

39:07

going on? And this is where

39:09

our profession fails. I'm very happy

39:11

to sit on this, you know,

39:13

ABA committee co-chaired by Jay Johnson

39:15

and Judge Ludig on democracy, right?

39:17

Because I do think that... It's so

39:19

important for our profession to

39:21

grab hold of core principles of

39:23

democracy that are not defined in

39:26

partisan terms and to believe that

39:28

there are principles that are not

39:30

defined in partisan terms. And one of

39:32

the reasons I like law is because I

39:34

always believed that I had the fair

39:36

shot because the rules were supposed to be

39:38

the same for both sides. And if you

39:40

just tell me what the rules are, that I'm

39:43

going to work the rules, and I'm going to

39:45

make my case. And then I cannot get

39:47

in chambers with the judge and make the

39:49

judge decide my way. But what I can

39:51

do in open court is present my case

39:53

in such a way. What I can do

39:55

is write my briefs in such a way

39:58

that when the judge takes them back in.

40:00

into chambers that I have the

40:02

best shot at that case, at

40:04

winning that case. And these are

40:06

the irreducible principles that we should

40:08

be fighting for. And I just

40:10

think that we apparently are not

40:12

ready in our profession for that

40:14

hardy discussion. And that Federalist Society

40:16

panel was an example for me,

40:19

where you had a federal judge

40:21

who is speaking in a way

40:23

that was completely untemperate, a kind

40:25

of poorly sourced argument. against someone

40:27

who I think everyone recognizes as

40:29

a responsible scholar, you know, in

40:31

a room full of people who's

40:33

kind of attacking him with the

40:35

recognition that he cannot respond in

40:38

kind. Why? Because one of the

40:40

irreducible principles is how we talk

40:42

to judges, right? Is that I'm

40:44

not going to... you know, drag,

40:46

first of all, see, valadic, wouldn't,

40:48

but I'm not going to drag

40:50

a federal judge, you know, a

40:52

federal appellate judge at a legal

40:54

conference. So I just think part

40:56

of what I saw there was

40:59

just like, that was so over

41:01

the line. And our conservative colleagues

41:03

should have lined up to say

41:05

that as well, right? And I've

41:07

heard conservative colleagues say that she

41:09

didn't do a great job of

41:11

making the case, you know, which

41:13

is very different than saying That

41:15

was completely unacceptable and over the

41:18

line. So I think part of

41:20

what we're facing, Dahlia, you know,

41:22

is as we recover from the

41:24

body blows of the next few

41:26

months, is how to engage with

41:28

our colleagues around what is appropriate

41:30

and what is not, what is

41:32

right and what is wrong, what

41:34

is your obligation as a lawyer

41:37

and what is not your obligation,

41:39

what are you allowed to ignore

41:41

and what are you not allowed

41:43

to ignore? And I try to

41:45

remind lawyers that, you know, We've

41:47

had injustice in our profession before

41:49

that lawyers and judges did not

41:51

speak out about, you know, and

41:53

we have injustice running through our

41:56

legal system. I say all the

41:58

time, you know, every week. open

42:00

the paper, someone's been released from

42:02

jail after 20, 30, 40 years

42:04

for a crime they didn't commit.

42:06

Like, we got a lot of

42:08

problems in our legal system. So

42:10

we're standing up on some soapbox

42:12

saying that we don't have any

42:15

obligation to say anything is to

42:17

me just a non-starter. So we

42:19

know all of that is true.

42:21

That is within the context of

42:23

our unhealthy democracy. But to the

42:25

extent we have real fresh threats.

42:27

to the remnants of the democracy

42:29

that we do have, the idea

42:31

that lawyers are going to play

42:34

no role or that we're going

42:36

to figure out how to profit

42:38

from this chaos, I think is

42:40

very, very frightening. And so I

42:42

think we have to push. That's

42:44

why I think we have to

42:46

be talking and we have to

42:48

set a standard and our colleagues

42:50

have to understand what we expect

42:52

of them. Our colleagues in this

42:55

profession have to understand what we

42:57

expect of them. We're going to

42:59

take a short break. Hey, it's

43:01

Anna Sale, the host of death,

43:03

sex, and money. The show from

43:05

Slate about the things we think

43:07

about a lot and need to

43:09

talk about more. And recently on

43:11

our show, we talked to listeners

43:14

about masculinity, what it means to

43:16

be a man in our modern

43:18

world, what's expected of you, or

43:20

what assumptions you feel are made

43:22

about you. I wish that people

43:24

would not be so afraid of

43:26

me. I wish that people wouldn't

43:28

hate me. I hate them for

43:30

hating me. And then I catch

43:33

myself, you know, a blink of

43:35

an eye later and recognize that

43:37

I'm being stupid. But I do

43:39

feel it. We heard from lots

43:41

of men for this episode who

43:43

came at this topic in lots

43:45

of different ways. And we keep

43:47

hearing from men. and people who

43:49

love men about all the mixed

43:52

messaging about manhood and masculinity in

43:54

our culture. Your stories and questions

43:56

are central to how we make

43:58

our show, so keep them coming.

44:00

Listen to this episode and more

44:02

Death Sex and Money episodes wherever

44:04

you get podcasts. Hey everyone, it's

44:06

Mary Harris. Host of Slates, what

44:08

next podcast? While Democratic Party leadership

44:11

seems to be taking a hands-off

44:13

approach to Donald Trump, Bernie Sanders

44:15

and Alexandria Ocazio Cortez are hitting

44:17

the road and they're organizing tens

44:19

of thousands of frustrated voters at

44:21

rallies around the country. And it's

44:23

not just about Republicans, we need

44:25

a Democratic Party that fights harder

44:27

for us to. Yes, they

44:30

think what we need is a

44:32

mass movement big enough to take

44:34

away what these oligarchs have been

44:36

building for themselves. And that means

44:38

raising their taxes, that means paying

44:40

for more health care benefits. So,

44:42

is this the Democrats' version of

44:44

the Tea Party? Listen to what

44:46

next? With me, Mary Harris, wherever

44:48

you get your podcasts. Hey

44:56

that Slate listeners, this is Felix

44:58

Salmon of Slate Money. You have

45:00

been looking at the price of

45:02

eggs. I have been looking at

45:05

the price of eggs and basically

45:07

Slate Money has now become a

45:09

delivery mechanism for the greatest segment

45:11

in Slate Money history, which is

45:13

Egg Watch. Pretty much every week

45:15

these days, we bring on the

45:17

great Shane and Roth to talk

45:19

about eggs. Where I live in

45:21

Michigan, eggs are currently about $5

45:24

a dozen, but at a tiny

45:26

little grocery store in Bay City,

45:28

Michigan, where my parents live, they

45:30

reported to me that they got

45:32

eggs for $275 a dozen. What?

45:34

Or what is idiosyncratic about the

45:36

egg supply chain? They don't vaccinate

45:38

their chickens against the flu. Whether

45:40

you're a human or a chicken,

45:43

you should have a flu vaccine,

45:45

but the chickens don't get their

45:47

flu vaccines. So, follow slate money

45:49

and join us every week for...

45:51

Eggwatch, along with all the rest

45:53

of the latest business and finance

45:55

news of the week, wherever you

45:57

get your podcasts. I feel like

45:59

as we're sort of rounding third

46:02

on our irreducible principles, I also

46:04

think one of the places you

46:06

always take us back to, and

46:08

I'm going to ask you to

46:10

do it again, is facts, because

46:12

it's not just the primacy of

46:14

the rules, it's the facts and,

46:16

you know, one of the refrains

46:18

that we... site to constantly is

46:21

the Sherylen Eiffel rule that says,

46:23

is this how we practice law

46:25

now? I mean, this is the

46:27

thing that you keep raising, and

46:29

I think facts are a place

46:31

as much as rules, as much

46:33

as, you know, the conduct, that

46:35

everything felt like it started sliding

46:37

away when facts became. preferences, negotiable,

46:40

debatable, and I would just love

46:42

for you to give a quick,

46:44

quick, pracy of a really strong

46:46

piece, you actually hosted in Slate

46:48

recently, about Justice Alito, and the

46:50

ways that he was using and

46:52

distorting the factual record in the

46:54

gender affirming care case, it was

46:56

just heard at the court, because

46:59

until you wrote it, I confess...

47:01

listen to arguments, didn't quite catch

47:03

the degree to which that's just

47:05

become standard operating procedure for him.

47:07

Yeah, it's really disturbing. So again,

47:09

you know, I always say I

47:11

love procedure because the rules are

47:13

protection or can be protection. And

47:15

you know as well as I

47:18

do, you know that we have

47:20

a system where you move up

47:22

and down the ladder, right? You

47:24

start out in your trial court,

47:26

you go to your court of

47:28

appeals, you maybe go to the

47:30

Supreme Court. And there are rules

47:32

that bind the scope of conduct

47:34

and responsibility of judges at each

47:37

of those levels, right? And that

47:39

the trial judge is where you

47:41

make the factual arguments and the

47:43

court makes factual findings. And that's

47:45

kind of, you know, especially for

47:47

civil rights litigators who are... bringing

47:49

cases that are often disfavored, not

47:51

believed, right? We have to actually

47:53

prove our case. So that's why

47:56

trials are so important to us,

47:58

right? We have the chance to

48:00

actually prove that this thing that

48:02

our clients experience that they said

48:04

happened, happened. And we put forth

48:06

the witnesses and we put forth

48:08

the documents, we put forth the

48:10

photographs and the testimony and everything

48:12

to prove that that's true. A

48:15

judge, trial judge then issues findings

48:17

of fact and conclusions of law.

48:19

When the case gets to the

48:21

court of appeals, the court of

48:23

appeals doesn't have to defer to

48:25

the trial court on the law

48:27

because the court of appeals judges

48:29

are perceived as knowing the law

48:31

better than trial court judges, but

48:34

on fact they have to defer

48:36

because the trial judge was there

48:38

and that's their expertise is hearing

48:40

facts and sifting the evidence and

48:42

judging the credibility of witnesses. And

48:44

of course when the case gets

48:46

to the Supreme Court, it comes

48:48

with the record. The record is

48:50

the trial court record, right, and

48:52

of course the appellate court decision

48:55

in briefs and so on so

48:57

on and so on and so

48:59

on and so on and so

49:01

on and so on and so.

49:03

forth. But the Supreme Court is

49:05

not a trial court. It is

49:07

not a court that receives factual

49:09

information. It is bound by the

49:11

record that was created below. And

49:14

so in the Skrametti case, the

49:16

gender affirming care case, when Solicitor

49:18

General Elizabeth Prelager is arguing against

49:20

the Tennessee law that would ban

49:22

gender affirming care. Justice Alito starts,

49:24

now I'm not seeing the argument,

49:26

I was not there in the

49:28

court, I can't tell if he's

49:30

shuffling, but it sounds like he's

49:33

shuffling papers, like he's got, he's

49:35

got some things he's going through,

49:37

and he starts referring to reports,

49:39

the cast report and other reports

49:41

that have been issued in Great

49:43

Britain, and I think Sweden was

49:45

one of the other countries, and

49:47

he talks about Great Britain recently

49:49

having decided to pause all gender

49:52

affirming and care for minors. And

49:54

Elizabeth Prelogger responds beautifully and excellently

49:56

as she always does, and points

49:58

out several times that these reports

50:00

recently came out, came out after

50:02

the trial. They were not before

50:04

the trial judge. They're not part...

50:06

of the record. We cannot introduce

50:08

factual evidence in Supreme Court oral

50:11

argument, but Alito persists and almost

50:13

suggests that she has engaged in

50:15

some slight of hand in her

50:17

brief by not including these reports

50:19

when they were not part of

50:21

the record in the case. And

50:23

of course, as an aside, it's

50:25

of course ironic to hear Justice

50:27

Alito pouring through this information from

50:30

Europe when he has been one

50:32

of the stalwords who believe that

50:34

we have really nothing to learn

50:36

from foreign jurisdictions when we decide

50:38

cases in our courts. But in

50:40

any case, he's violating a principle.

50:42

Right? Which is that we cannot

50:44

introduce new factual evidence. You're bound

50:46

by the factual record that was

50:49

before the trial judge. That is

50:51

the basis upon which the trial

50:53

judge made the decision. He didn't,

50:55

he wasn't asking, should we remand

50:57

this case to the trial judge

50:59

so that the trial judge can

51:01

now receive this information from foreign

51:03

experiences. asking her, right? What should

51:05

we do now that Britain has

51:08

decided this, right? And that this

51:10

report came out in England and

51:12

in Sweden. And again, is this

51:14

how we litigate now? Is this

51:16

what we're doing? Is that we

51:18

can bring factual evidence that was

51:20

never introduced below to the Supreme

51:22

Court and have the Supreme Court

51:24

use it as part of their

51:27

decision making and press and have

51:29

them press you at the lectern

51:31

about evidence that never appeared in

51:33

the court below? And this is

51:35

not the first time it's happened,

51:37

it's happened in other cases as

51:39

well, but we should note it

51:41

once again. This is not a

51:43

partisan issue. This is not whether

51:46

you are for gender affirming care

51:48

for minors or against gender affirming

51:50

care for minors. It is whether

51:52

you are for the principles that

51:54

we all learned in law school

51:56

and that we are still teaching

51:58

in law school, which is that

52:00

the trial court is the finder

52:02

of fact and that factual evidence

52:05

cannot be introduced in the court

52:07

of appeals. or God forbid in

52:09

the United States Supreme Court. And

52:11

yet I did not hear my

52:13

colleagues in the profession saying, hey,

52:15

that crosses a line. That's not

52:17

in the case. And you know,

52:19

you cannot expect justices or the

52:21

Social General on the fly to

52:24

back and forth about an unvetted

52:26

report that has not been reviewed,

52:28

that has not been authenticated, that

52:30

has not been subject to cross-examination

52:32

by expert witnesses and so forth.

52:34

But that's what happened. And it

52:36

was almost like, you know, the

52:38

argument was only about, like, you

52:40

know, gender affirming care. Like, and

52:43

it was about gender affirming care,

52:45

but it was also about this

52:47

other thing, which is like, when

52:49

it's not going your way, do

52:51

you get to just add hot,

52:53

bring in stuff at the highest

52:55

level, and treat it as though

52:57

it is on par and on

52:59

level with the findings made by

53:01

trial court. And I've been saying

53:04

for some time, I wonder where

53:06

there's the district court. by the

53:08

willingness to ignore the factual record,

53:10

to distort the factual record, you

53:12

know, to say, you know, in

53:14

the Bremerton case, you know, these

53:16

prayers, these private prayers that the

53:18

coach was apparently engaging in, you

53:20

know, far away from the crowd.

53:23

And we have this picture of

53:25

the prayer happening right in the

53:27

middle of the field. the kind

53:29

of ignoring of the record in

53:31

the affirmative action cases and like

53:33

I mean I you know trial

53:35

judges have to mark off weeks

53:37

in their schedules to to litigate

53:39

many of these very complicated cases

53:42

and then issue these 100 plus

53:44

page you know findings of fact

53:46

and conclusions of law and when

53:48

the Supreme Court just treats it

53:50

like it's you know they can

53:52

do quote unquote their own research

53:54

I would just assume that it

53:56

would be creating some feelings of

53:58

concern. among district court judges. Yeah,

54:01

it's it goes to what judges

54:03

can do, the what we talked

54:05

about earlier. Which by the way

54:07

is the end of Chief Justice

54:09

Roberts report. I'm going to say

54:11

the exact line. He says we

54:13

judge must stay in our assigned

54:15

areas of responsibility and do our

54:17

level best to handle those responsibilities

54:20

fairly. Well, your assigned level as

54:22

an appellate judge is not to

54:24

introduce new factual information that you

54:26

just happened to read at oral

54:28

argument. Correct. And you're assigned level

54:30

as a district court judge is

54:32

to fight for the facts as

54:34

you found them. Can we end

54:36

with Polly Murray for one quick

54:39

moment because I know that... you

54:41

feel about Paul Murray's poems the

54:43

way I feel. And right after

54:45

the election in your sub stack,

54:47

you lifted up civil rights activists

54:49

and poet and architect of the

54:51

world we live in, Paul Murray.

54:53

You lifted up a poem from

54:55

1939 called To The Oppressers. And

54:58

you quoted, you know, we shall

55:00

endure. to steal your senses in

55:02

that lonely twilight of your winter's

55:04

grief. It was such a powerful

55:06

sub-stack, Cheryl, and it was clearly,

55:08

you know, we have been here

55:10

before. We know what to do.

55:12

You advocated, I think you offered

55:14

such guidance in that moment, and

55:17

here we are a couple weeks

55:19

later. about, you know, give money

55:21

to homeless shelters and teach your

55:23

children to write in cursive. But

55:25

I would love just to close

55:27

on what I think was your

55:29

overarching message, which is in so

55:31

many threads of that have been

55:33

woven into this conversation, which is

55:36

that we don't give up and

55:38

we keep records and we learn

55:40

to be active bystanders and we

55:42

don't let other people tell us

55:44

that we're losing or that we're

55:46

losing or that we're breaking the

55:48

system, we demand of our local

55:50

officials that they do their jobs.

55:52

And I just wonder if here

55:55

we are, really I think on

55:57

the brink of something that could

55:59

be. Unthinkably horrible

56:01

compared to what we've been

56:04

through in our lifetimes, yours

56:06

and mine. And I just

56:09

wonder what you are telling

56:11

listeners who are, as

56:13

you say, you know, the

56:15

victims of body blows, a

56:17

little bruised, a little numb,

56:20

a little tempted, just Netflix

56:22

or screen save for the

56:24

next couple of years. What

56:26

are you telling people? that

56:28

this work of showing up for

56:30

the rule of law is going

56:32

to look like for the next

56:34

week and the next month

56:36

and the next couple of

56:39

years. What sustains me

56:41

is recognizing the work

56:43

of lawyers who were litigating

56:45

in a place and time

56:47

that looked as bad as what

56:50

we are facing. And that's why

56:52

I... repeat and think it's

56:54

important for people to remember

56:56

that in this country we

56:58

do have experience with

57:00

authoritarian regimes because that

57:03

is what existed in the American

57:05

South for the first half of the

57:07

20th century. And we weren't

57:10

doing nothing. You know, it wasn't

57:12

as though there was Plessy versus

57:14

Ferguson in 1896 and then there

57:16

was Brown in 1954. That's not

57:19

what happened. What happened. What happened

57:21

is that. People were planting

57:23

in that period and that's why

57:26

I refer to this as planting

57:28

time. We want to live in the

57:30

harvest. We all do because

57:32

for many of us our lives were

57:34

made possible by the harvest

57:37

that we received from those

57:39

who planted before us who

57:41

opened the doors for women,

57:43

who opened doors for black

57:45

people, who opened doors for

57:48

disabled people. who created conditions

57:50

that allowed us to attend

57:52

universities we attend, marry who

57:54

we married, live where we live. Those

57:56

things might not have been possible for

57:59

many of us. due to race,

58:01

gender, socio-economic status prior to the

58:03

second half of the 20th century.

58:05

And because we grew up in

58:07

that period only know that, we

58:09

think it's always supposed to be

58:11

harvest. We think it's only supposed

58:13

to be great stuff happening and

58:15

we keep moving forward and maybe

58:17

we're the first generation who believes

58:19

that life is the harvest. But

58:21

those who came before. who lived

58:24

in planting times know that it's

58:26

different. And so I spend a

58:28

lot of time looking at what

58:30

people were doing in the first

58:32

half of the 20th century when

58:34

people were doing the things that

58:36

produced the conditions that allowed for

58:38

the, you know, incredibly dynamic, powerful

58:40

democracy push of the civil rights

58:42

movement and the women's movement and

58:44

so forth that made our lives

58:47

possible. And what they were doing

58:49

is they were showing up and

58:51

they were litigating and they were

58:53

fighting. They were creating organized local

58:55

groups to put together challenges. They

58:57

were creating conditions for the protection

58:59

of people and to help the

59:01

material condition of people who needed

59:03

it. And they were sewing all

59:05

of that into... a system that

59:07

was unfair, that was often brutal,

59:10

that was violent, in which there

59:12

were consequences for what they did,

59:14

but boy what they did, what

59:16

we experienced would not have been

59:18

possible without the planting of those

59:20

people. And so I refer people

59:22

to that period. For whatever you're

59:24

interested in, if you're interested in

59:26

the women's movement, if you're interested

59:28

in the civil rights movement, or

59:30

you're interested in racial discrimination, if

59:33

you're interested in the explosion of

59:35

democracy and even of our profession,

59:37

if we think about, you know,

59:39

right to counsel and all the

59:41

things that happened that we, you

59:43

know, take for granted as part

59:45

of our profession, the seeds were

59:47

planted. By those who were doing

59:49

the work in that period, what

59:51

Charles Hamilton Houston was doing in

59:53

the 1930s and Thurgood Marshall was

59:56

doing in the 1930s, the challenges

59:58

they were making around jury discrimination

1:00:00

and the challenges they were making

1:00:02

around segregation and what they were

1:00:04

making around segregation and what they

1:00:06

were enduring in the courthouse in

1:00:08

terms of segregation, what people were

1:00:10

doing in building up the first

1:00:12

black labor union, the sleeping car

1:00:14

porters, you know, the men who

1:00:16

rode the rails and carried information

1:00:19

back and forth as a result

1:00:21

would often have black newspapers with

1:00:23

them. the South would learn what

1:00:25

was going on when their dads

1:00:27

came back home. And those men

1:00:29

and women, the women's auxiliary of

1:00:31

the sleeping carporters, you know, if

1:00:33

you talk to many and look

1:00:35

at the history of many of

1:00:37

the civil rights leaders that you

1:00:39

know of, you know, from the

1:00:42

60s, those were their parents and

1:00:44

their grandparents, right? And they were

1:00:46

able to raise their children because

1:00:48

of those jobs and because of

1:00:50

that labor union and the fraternities

1:00:52

and the sororities. So I think

1:00:54

it's important to... do get involved

1:00:56

in your local groups and your

1:00:58

civic groups to do the work

1:01:00

where you can for lawyers to

1:01:02

continue to show up and set

1:01:05

a standard to make a record.

1:01:07

You know, I'm able to study

1:01:09

that period because people made records

1:01:11

because they made records and you

1:01:13

can review those records and you

1:01:15

can see what happened. They wrote

1:01:17

letters. You know, I have a

1:01:19

book of letters that Thurgood Marshall

1:01:21

wrote that like blow my mind,

1:01:23

you know, of just like, what

1:01:26

was going on? And we need

1:01:28

to do that. We need to

1:01:30

be printing things down from the

1:01:32

internet. Have you noticed how little

1:01:34

you can find on Google? Stories

1:01:36

you know you read at some

1:01:38

point, you thought you'd go back

1:01:40

to it, and suddenly you can't

1:01:42

find it. We have a job

1:01:44

to do, because it's not just

1:01:46

all about us. It's about the

1:01:49

future that we want to create

1:01:51

in this country. And I wish

1:01:53

that we could be in the

1:01:55

harvest period. But I fear that

1:01:57

that is not for us at

1:01:59

this moment. And lastly, I would

1:02:01

say, because I don't believe that

1:02:03

this period will last forever. that

1:02:05

we are ill-prepared for creating the

1:02:07

democracy that we want. And that's

1:02:09

what this period is about. This

1:02:12

is an intense period of study

1:02:14

where we should be trying things

1:02:16

out. As you know, President Biden

1:02:18

was successful in nominating many, and

1:02:20

having confirmed, many judges on our

1:02:22

federal courts. Well, what are we

1:02:24

serving up to them? Do we

1:02:26

have any new theories or ideas?

1:02:28

What are they supposed to do,

1:02:30

but sit in those? positions, unless

1:02:32

we provide them with something that

1:02:35

allows them to see the law

1:02:37

another way, with fresh arguments, with

1:02:39

new theories and perspectives, with compelling

1:02:41

cases. Those of us who championed

1:02:43

and even fought for the appointment

1:02:45

of new judges from different backgrounds

1:02:47

to the bench, we owe it

1:02:49

to them to give them something

1:02:51

to work with. And so to

1:02:53

check out now, it seems to

1:02:55

me it's just completely unacceptable. We've

1:02:58

got to lay the foundation for

1:03:00

that democracy that we want to

1:03:02

create and that I believe will

1:03:04

be created. And I'm as frustrated

1:03:06

as the next guy that it's

1:03:08

not right now. But it doesn't

1:03:10

mean that we don't have a

1:03:12

very important and powerful job to

1:03:14

do, and future generations will not

1:03:16

look that kindly on us if

1:03:18

we decided to pack up our

1:03:21

marbles and go home and watch

1:03:23

Netflix. We can do that too.

1:03:25

We can relax when we have

1:03:27

to. you know, hold our mental

1:03:29

health and our physical health and

1:03:31

our joy, our capacity for joy.

1:03:33

But we do have work to

1:03:35

do it. Cheryl and Eiffel is

1:03:37

the inaugural, Vernany, Jordan, Junior, Esquire,

1:03:39

endowed chair in civil rights at

1:03:41

Howard University. Before that, she served

1:03:44

as the seventh president and director

1:03:46

council of the NAACP Legal Defense

1:03:48

and Educational Fund. If there is

1:03:50

planting to be done, Cheryl, and

1:03:52

there is absolutely nobody I want

1:03:54

to be in the planting with

1:03:56

more than you, I'm so... grateful

1:03:58

today and all days this year

1:04:00

and all years. For the light

1:04:02

you shine on what really feels

1:04:04

like it will be a challenging

1:04:07

road ad, but it's the road

1:04:09

we have to be on it.

1:04:11

Thank you so much. Thank you,

1:04:13

Dahlia. That's

1:04:18

all for this episode. Thank you so

1:04:20

much for listening in and thank you

1:04:23

so much for your letters and your

1:04:25

questions and your comments. You can keep

1:04:27

in touch with us at amicus at

1:04:29

slate.com or you can find us at

1:04:32

facebook.com/amicus podcast. I'm going to head over

1:04:34

to the cigar bar that is amicus

1:04:36

plus. I'm going there right now and

1:04:39

I'm going to meet Mark Joseph Stern,

1:04:41

my jurisprudence comrade in arms over there.

1:04:43

He and I are going to respond

1:04:46

to the response to our dear jurisprudence

1:04:48

segment on the fears of a Trump

1:04:50

third term that set off a little

1:04:53

bit of a take fest on Blue

1:04:55

Sky last week. You can subscribe to

1:04:57

Slate Plus directly from the Amicus Show

1:05:00

page on Apple podcasts and Spotify, or

1:05:02

you can visit slate.com/Amicus Plus to get

1:05:04

access wherever you listen. That episode is

1:05:07

available for you to listen to listen

1:05:09

to right now, and we'll see you

1:05:11

over there. Sarah

1:05:13

Burningham is Amicus's senior producer. Our

1:05:16

producer is Patrick Fort. Alicia Montgomery

1:05:18

is vice president of audio at

1:05:20

Slate. Susan Matthews is Slate's executive

1:05:22

editor. And Ben Richmond is our

1:05:24

senior director of operations. We'll be

1:05:27

back with another episode of Amicus

1:05:29

next week. Watergate. Before I started

1:05:31

working on this show, everything I

1:05:33

knew about Watergate came from the

1:05:36

movie All the President's Men. Do

1:05:38

you remember how it ends? Woodward

1:05:40

and Bernstein are sitting with their

1:05:42

typewriters clacking away. And then there's

1:05:45

this rapid montage of newspaper stories

1:05:47

about campaign aides and White House

1:05:49

officials getting of crimes about audio

1:05:51

tapes coming out that proved Nixon's

1:05:53

involvement in the cover-up. The last

1:05:56

story we see is Nixon resigns.

1:05:58

It takes a little over a

1:06:00

minute in the movie. In real

1:06:02

life it took about two years.

1:06:05

Five men were arrested early Saturday

1:06:07

while trying to install eavesdropping equipment

1:06:09

known as the Watergate incident. What

1:06:11

was it like to experience those

1:06:14

two years in real time? What

1:06:16

were people thinking and feeling as

1:06:18

the break-in a democratic party headquarters?

1:06:20

went from a weird little caper

1:06:23

to a constitutional crisis that brought

1:06:25

down the president. The downfall of

1:06:27

Richard Nixon was stranger, wilder, and

1:06:29

more exciting than you can imagine.

1:06:31

Over the course of eight episodes,

1:06:34

this show is going to capture

1:06:36

what it was like to live

1:06:38

through the greatest political scandal of

1:06:40

the 20th century. With today's headlines

1:06:43

once again full of corruption, collusion,

1:06:45

and dirty tricks, it's time for

1:06:47

another look at the gate that

1:06:49

started it all. Subscribe to slow

1:06:52

burn now, wherever you get your

1:06:54

podcastsasts. Hi,

1:06:58

I'm Josh Levine. My podcast, The

1:07:00

Queen, tells the story of Linda

1:07:02

Taylor. She was a con artist,

1:07:04

a kidnapper, and maybe even a

1:07:06

murderer. She was also given the

1:07:09

title, The Welfare Queen, and her

1:07:11

story was used by Ronald Reagan

1:07:13

to justify slashing aid to the

1:07:15

poor. Now, it's time to hear

1:07:17

her real story. Over the course

1:07:19

of four episodes, you'll find out

1:07:22

what was done to Linda Taylor,

1:07:24

what she did to others. and

1:07:26

what was done in her name.

1:07:28

The great lesson of this for

1:07:30

me is that people will come

1:07:32

to their own conclusions based on

1:07:35

what their prejudices are. Subscribe to

1:07:37

the Queen on Apple podcasts or

1:07:39

wherever you're listening right now.