0:05

Hi and welcome to Amicus. This is

0:07

Slate's podcast about the U.S. Supreme Court,

0:09

the law, and the rule of law.

0:11

I'm Dahlia Lithwick. I cover those things

0:13

for Slate. And to quote

0:15

our jurisprudence editor, Jeremy Stahl, and

0:18

Slate Plus members, you're going to

0:20

hear from him in today's bonus

0:22

episode. Yikesy

0:24

yikes, said Jeremy. That was

0:26

his reaction to this week's

0:28

tsunami of legal news. Yikesy

0:31

yikes, FYI, is like a 9 on

0:34

the jurisprudence editor Richter scale that

0:36

we use here at Slate. So

0:39

it's been a week and not in a

0:41

good way. On

0:43

Monday, the court heard arguments in

0:45

a homelessness case that seeks to

0:47

address how far cities can go

0:49

in terms of criminalizing people for

0:51

sleeping outside, an oral

0:53

argument in which Justice Sonia Sotomayor

0:56

was moved to ask, quote, where are

0:58

they supposed to sleep? Quote,

1:01

are they supposed to kill themselves

1:03

not sleeping? End quote. Oh,

1:06

but it got so much worse. On

1:08

Wednesday, the court heard arguments in that

1:10

ER, stabilizing abortion care case, the

1:13

one known as Moyle versus United States. We

1:16

covered it that day in

1:18

our bonus episode. And the

1:20

arguments had justices pondering whether

1:22

just mere trivial permanent kidney

1:24

damage is something doctors

1:26

should factor in when they're deciding

1:28

what kind of stabilizing emergency care

1:31

to provide to pregnant patients. We

1:34

had some quality musing in

1:36

that argument over whether pre

1:38

viability, fetal personhood could trump

1:41

actual living, breathing, parenting children,

1:43

working a job, driving a

1:45

car, adult, woman

1:48

personhood. And yes, for

1:50

at least some justices, the tie

1:52

goes to the not viable fetus.

1:55

Oh, but that was just Wednesday. We

1:57

staggered on to Thursday, the moment the nation has

2:00

waiting for when the Supreme

2:02

Court was finally going to stir

2:04

itself to hear arguments in Trump

2:06

v. United States, the immunity case

2:08

so sweeping that it has drawn

2:11

outright guffaws from the somber

2:13

bow tide ranks of

2:15

former Republican Party stalwarts and

2:18

Republican jurists. But

2:20

not so from the MAGA justices. As

2:22

we are about to discuss, the

2:24

proposition that criming while in office is

2:26

not beyond the reach of the law

2:29

appeared to persuade only really the

2:31

trio of liberal justices. But four,

2:34

five, maybe even a cool six

2:36

of the Court's conservative justices looked ready

2:39

to adopt some version of

2:41

the position that while coups are regrettable,

2:44

coup fomenting, fake-elector fabricating, find

2:46

me those extra votes, shake

2:48

down, phone calling, DOJ

2:50

firing presidents are not prosecutable

2:52

or not this one who's

2:54

running for president again right

2:56

now. But we don't mention

2:58

his name because we are writing for the

3:00

ages. We're even to

3:02

begin, but begin we shall and with

3:05

the very best of guests. Pamela Carlin

3:07

is the Kenneth and Harle Montgomery

3:09

Professor of Public Interest Law at

3:11

Stanford Law School, co-director of Stanford's

3:13

Supreme Court Litigation Clinic and has

3:15

twice served as Deputy Assistant Attorney General

3:17

in the Civil Rights Division of the

3:19

US Department of Justice. Most

3:21

recently as the Principal Deputy Assistant

3:24

AG from 2021 to

3:26

2022, she is the co-author

3:29

of leading casebooks on con law, constitutional

3:31

litigation and law of democracy. Pam, it

3:33

has been just forever since we've had

3:35

you on the show. I know

3:38

that your tour in the Justice Department

3:40

intervened with your ability to

3:43

opine freely, but welcome back

3:45

dear God, we missed you and we need you

3:47

today of overall days. Thanks

3:49

so much for having me. And

3:51

Mark Joseph Stern is Slate's senior

3:54

legal writer and Mark and I

3:56

were listening together on Thursday and

3:59

also in on Wednesday, welcome

4:01

back Mark. Thank you,

4:03

I had the misfortune of actually

4:05

being in the courtroom on Thursday,

4:07

listening and watching. And that did

4:09

not enhance the experience in

4:11

any way, shape or form. I would

4:13

much rather have been in my PJs

4:16

gossiping with you over Slack, but alas,

4:18

I was trapped in that evil chamber

4:20

watching democracy die before my. I mean,

4:22

it's just a showing that they shouldn't

4:24

have arguments on Thursdays. That's

4:27

true. That is what it proves. All

4:29

Thursday arguments are bad. I

4:32

think we could wrap here. It seems

4:34

that that, so I want to ask

4:36

actually a framing question, which is

4:39

just, this was an

4:41

incredibly narrow interlocutory

4:43

appeal. This was meant

4:46

to be, right? The case has not

4:48

gone to trial. The way this is

4:50

supposed to go, there was a pretty

4:52

narrow question before the court. Is

4:54

that right, Pam? Yeah, and the

4:56

court itself wrote that narrow question.

4:58

That's not the question, usually

5:00

the parties write the question that

5:03

the court is going to grant

5:05

certiorarian and decide. And here the

5:07

court wrote its own question and wrote

5:09

a question that I thought going into

5:11

the argument was so narrow that the

5:13

answer was obvious, which is, does

5:15

the president have immunity for

5:18

acts that

5:20

are within his official duties?

5:23

And the indictment here has a number of

5:26

acts that have nothing to do with

5:28

being president in it. The things about fake

5:30

electors and the like. And so I thought,

5:33

going into this, they had written a narrow question

5:36

so they could write a

5:38

narrow answer that said, yes, this trial

5:40

could proceed. And instead we had,

5:42

as you said in the introduction, Justice

5:45

Gorsuch musing about how they should be

5:47

writing for the ages, although honestly, you

5:49

have to wonder whether we'll have ages

5:52

if this is the kind of treatment that

5:54

we have for presidents who break the law. And

5:57

just in that vein, Mark, I guess one of

5:59

the things. was arresting to me

6:01

listening to arguments is that initially sort

6:03

of for the first, I

6:06

almost want to say third of

6:08

John Sauer, that's Donald

6:10

Trump's attorney, at least

6:13

a third of his presentation because the

6:15

question was so narrow and his admissions

6:17

were so vast, right? He's

6:19

like, sure, a president could, you

6:21

know, order an assassination and that

6:24

could be sometimes within his official

6:26

duties. Sure, he could order a

6:28

coup and that too, depending on

6:30

the context. So it seemed as

6:32

though this was an insane recitation

6:35

of, you know, if this is

6:37

the narrow scope of the case

6:39

and he's essentially admitting to everything

6:41

he said at the DC Circuit

6:43

argument, which was crazy then, it

6:46

felt as though, and so I want to say

6:48

like for the first third of his argument time,

6:50

I was like, oh, they should have just,

6:52

this should be a summary of ferments, right? Because

6:54

he's doing the same thing he did. This is

6:57

crazy. And the question is limited to this. And

7:01

then things just took a turn. It

7:03

turned into a whole other discussion. Yeah,

7:06

it totally went off the rails. And I

7:08

think you're right. It felt like a replay

7:10

of the DC Circuit, right? You had the

7:12

liberal justices like Sotomayor and Kagan asking these

7:15

now famous questions. Could the

7:17

president order the military to

7:19

assassinate his political rival? Trump's

7:22

attorney, Sauer, had to basically say

7:24

yes. Could the president order

7:26

the military to stage a coup? He

7:29

was the president. He is the

7:32

commander in chief. He

7:34

talks to his generals all the time. And

7:37

he told the generals, I don't feel like leaving

7:39

office. I want to stage a coup. Is

7:41

that immune? If it's an official

7:44

act, there needs to be impeachment and conviction

7:46

beforehand because the framers viewed the—that kind of

7:48

very low— If it's an official act, is

7:50

it an official act? If it's

7:52

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

7:54

official act? On the way you described that

7:56

hypothetical, it could well be—I just don't

7:59

know. It's a fact-specific

8:01

context of determination. That answer sounds to

8:03

me as though it's like, yeah, under my test,

8:05

it's an official act, but that sure sounds bad,

8:08

doesn't it? And it felt

8:10

like at some point the conservative justices

8:12

leapt in and decided this

8:14

was going too poorly for Team

8:16

Trump. And so they had to

8:18

expand out the scope of the

8:20

case from what, as Pam pointed

8:23

out, was a narrow question that

8:25

they themselves crafted to suddenly bounce

8:27

all over the map. A

8:29

clear statement rule for criminal

8:32

statutes applying to the president,

8:34

jury instructions, immunity versus a

8:36

defense, official acts and conduct

8:38

versus private conduct. And at one

8:40

point, Justice Kavanaugh stepped in and

8:42

he literally said, I'm not

8:45

focused on the here and now of

8:47

this case. I'm very concerned

8:49

about the future. Um, excuse me,

8:51

Brett? You're not focused on the

8:53

here and now of the case

8:55

before you that you have to

8:57

decide as a justice a major

9:00

case that the nation is watching.

9:02

And that felt like such a

9:04

tell for me because it was

9:06

like the conservative justices knew that

9:08

Sauer was presenting a losing hand.

9:11

And so they had to step

9:13

in and try to rework this

9:15

to not only benefit Team Trump

9:17

now, but to create this broader

9:19

immunity for presidents with a R

9:21

next to their name, I think,

9:24

uh, to crime all they want and

9:26

not face any kind of criminal consequences.

9:29

That was a shocking revelation and admission

9:31

to me. And I think it really

9:33

points toward the broader problem with these

9:36

extremely messy and unfocused. Can I,

9:38

can I just jump in and say

9:40

that, you know, you were saying a third of

9:43

the way through things seem to be going well

9:45

and then they went off the rails. I actually

9:47

think it was actually later than that, that things

9:49

went off the rails because towards the end of

9:51

Sauer's argument, Justice Amy Coney

9:54

Barrett came in and said, you

9:56

know, everybody had kind of agreed and I

9:58

think there isn't any disagreement. that a

10:00

president who engages in private acts that

10:02

are a crime while he's in office

10:05

can be prosecuted afterwards. Even

10:07

though the OLC takes the Office of Legal

10:09

Counsel takes the position he can't be prosecuted

10:12

while he's president because it would be too

10:14

disruptive. So if Donald

10:16

Trump claims on

10:18

his tax returns a bunch of deductions

10:21

for children who aren't his, he can

10:24

be prosecuted for tax evasion

10:26

later on. And it doesn't matter that he

10:28

signed his tax return in the White House

10:30

or he ran off the forms on the

10:32

White House printer or the like because that

10:35

would be a pure private act.

10:37

So Justice Barrett went through the

10:39

indictment. You concede that private acts

10:41

don't get immunity. We do. Okay.

10:44

So in the special counsel's brief on pages 46

10:46

and 47, he urges us even if we assume

10:51

that there's even if we were to decide or

10:53

assume that there was some sort of immunity for

10:55

official acts, that there were sufficient private

10:57

acts in the indictment for the trial to go

10:59

for the case to go back in the trial

11:01

to begin immediately. And I want to know if

11:03

you agree or disagree about the characterization of these

11:05

acts as private. Petitioner turned

11:08

to a private attorney, was willing to spread

11:10

knowingly false claims of election fraud to spearhead

11:12

his challenges to the election results. Private? As

11:14

I was, I mean, we dispute the allegation,

11:17

but that sounds private to me. Sounds

11:19

private. Petitioner conspired with another private attorney

11:21

who caused the filing in court of

11:23

a verification signed by petitioner that contained

11:25

false allegations to support a challenge. That

11:27

also sounds private. Three private

11:30

actors, two attorneys, including those mentioned

11:32

above and a political consultant helped

11:34

to implement a plan to submit

11:36

fraudulent states of presidential electors to

11:38

obstruct the certification proceeding and petitioner

11:40

and a co-conspirator attorney directed that

11:42

effort. You

11:44

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

11:46

So those acts you would not dispute. Those were

11:49

private and you wouldn't raise a claim that they

11:51

were official. Then he kind of said

11:53

yes. And I thought at that moment, okay, what

11:56

this case is going to be is an

11:58

easy, quick remand to say. Given

12:00

that at oral argument, the

12:03

former guys, lawyers,

12:06

conceded that some of the acts that

12:08

are alleged as the overt acts, if

12:11

you will, in the conspiracy are private

12:13

acts, this case can go forward.

12:15

And then they had the sort

12:17

of where Mark was going, then they had

12:19

the conservative justices saying pay no attention to

12:21

the case before you. I am the Wizard

12:23

of Oz. And that's kind

12:25

of where the rest of the

12:27

argument went while Michael Drieben was up. Because

12:29

if the argument had ended after

12:33

Sauer's opening argument, I would have

12:35

said, I think this case was

12:38

going quite well. And you could tell

12:40

just how much they leapt in to help by

12:42

the fact that when it came time for Sauer's

12:45

rebuttal, he said, no, no further things.

12:48

You know, you've done my work for me. Rebuddle Mr.

12:50

Sauer? I have

12:52

nothing further, Your Honor. We should explain to

12:55

listeners, like that never happens, right? One of

12:57

the great benefits of going first to the

12:59

Supreme Court is you get these five minutes

13:01

of rebuttal where you get to pick apart

13:03

what the opposing counsel said. And Sauer, it

13:06

was remarkable to watch, and some of the

13:08

justices actually did look surprised. He just waltzed

13:10

up, swaggered up to the lectern, and said

13:12

nothing further. Because as you said, Pam, the

13:14

man on the court had already done his

13:17

job better than he possibly could, and he

13:19

was wise enough to keep his mouth shut. And

13:21

it was really interesting, I would

13:23

say, that it was Justice Katanji

13:26

Brown-Jackson. Time and time and time

13:28

again, who kept trying to bring

13:30

it back to, no, this is

13:32

the question before us. This

13:34

has already been admitted. Let's go home.

13:36

It's Thursday. We're not meant to be

13:39

here. Even if we decide here

13:41

something, a rule

13:43

that's not the rule that you

13:45

prefer, that is somehow separating out

13:48

private from official acts and saying

13:50

that that should apply here, there's

13:53

sufficient allegations

13:56

in the indictment, in the government's view,

13:58

that fall into private acts

14:00

bucket that the case should be allowed to proceed.

14:03

Correct. Because in an

14:05

ordinary case, it wouldn't be stopped

14:07

just because some of the acts

14:09

are allegedly immunized, even if people

14:11

agree that some are immunized. If

14:13

there are other acts that aren't,

14:15

the case would go forward. And

14:18

I felt as though she was

14:20

saying this thing so many times

14:22

in so many ways that, you

14:24

know, you all are needlessly fraying

14:27

this up with a bunch of garbage. At some

14:29

point, I believe it was

14:31

she that said, this is an interlocutory

14:33

appeal that's been frayed it up with

14:35

a whole bunch of other junk. But

14:38

there was just a sense that they'd

14:40

be like there, there, and threw another

14:42

bag of junk onto the train. I

14:44

mean, it was such a strange dynamic

14:46

because you really could sort of in plain

14:49

sight see her saying like, I

14:51

thought we were here to do this one

14:53

thing and nobody wants to do this one

14:55

thing. And under this one thing, he loses,

14:57

he lost at the jump. And so it

15:00

was this very weird move. And

15:03

I guess, you know, we can go through

15:05

if you want to these questions that Mark

15:07

laid out. Suddenly, it turns into

15:10

criminal statutes have to say this applies

15:12

to the president, that there is this

15:14

private official act disjunction that we're fighting

15:17

about. All of these pieces

15:19

of it honestly had nothing to do

15:21

with the case at hand until suddenly

15:23

that was what we were talking about

15:25

for two hours. It

15:27

was kind of disconcerting

15:30

to see what

15:32

seemed to be a relatively straightforward

15:34

question, which is, is

15:36

trying to steal the election is

15:38

trying to undermine an election, a crime

15:41

that anyone in the United States who

15:43

commits it can be held liable for to,

15:45

well, what should we do about this?

15:47

Because if we decide that Donald

15:49

Trump can be prosecuted, then can't

15:52

we go back and retroactively pull

15:54

Franklin Roosevelt out of the grave and

15:56

do something about Korematsu? I mean, Operation

15:59

Mongo. goose for God's sake. Which

16:01

probably nobody remembers because it was

16:03

in the Kennedy administration. They

16:06

didn't ever stop to ask themselves

16:08

why is it that no president

16:10

has ever been prosecuted in the

16:12

past? And the answer is because

16:14

no president in United States history

16:16

has ever tried to stay in

16:18

office after he was defeated. Gerald

16:20

Ford left office. Jimmy Carter left

16:22

office. George H.W. Bush left office.

16:25

Herbert Hoover left office. What is with Donald

16:27

Trump that he won't leave office? And

16:30

we kind of know the reason he doesn't want

16:32

to leave office is because when he's out of

16:34

office, he's vulnerable to being prosecuted. Right.

16:37

And his own attorneys during

16:39

that second impeachment trial, right,

16:41

go before Congress and say,

16:44

listen, you know, you don't need

16:46

to impeach and remove Trump for

16:49

January 6th because he's subject to

16:51

criminal prosecution later. The criminal justice

16:53

system can take care of this.

16:55

Mitch McConnell, Republican senators one by

16:58

one say we're not voting to

17:01

remove Trump. We're voting to acquit

17:03

because we think that the criminal justice

17:05

system can take care of this. And then twist

17:07

of all twists, we discover that

17:09

in fact, the criminal justice system has

17:11

nothing to do with a former president who

17:13

tried to steal the election. And I think

17:17

the conservatives sort of spun out different

17:19

theories of how they can make that

17:21

into law. And Justice

17:23

Kavanaugh and Justice Gorsuch had this idea

17:25

that they were going to make up

17:27

a new clear statement rule, a kind

17:29

of pop up clear statement rule that

17:31

no federal criminal law applies to the

17:33

president unless it explicitly

17:35

says, you know, it's stamped

17:37

with the words, this law applies

17:39

to the president. And as Justice

17:41

Sotomayor points out, like there are

17:44

only a tiny, tiny handful of

17:46

criminal statutes that specifically say they apply

17:49

to the president because before Thursday, nobody

17:51

had ever seriously thought that this was

17:53

a thing. And this was certainly not

17:55

in the question presented, right? This was

17:58

just the boys spinning off. in their

18:00

own role. And they keep toggling back and

18:02

forth, which is they agree that the president

18:04

can be tried for acts that

18:06

are not official acts, which means all

18:09

of those statutes that say no tax

18:11

fraud, no drug dealing. I mean, you

18:14

kind of wonder what these justices would

18:16

say if Donald Trump had been pebbling

18:18

ivermectin to people out of the back

18:20

of the White House without a prescription,

18:22

right? You think there's federal drug laws, of

18:24

course they can be prosecuted, and they seem

18:27

to be suggesting, well, if he does

18:29

it in the White House, then you

18:31

need a clear statement rule that says

18:33

no president shall deal illegal drugs. And

18:35

that just can't be right. We

18:38

are going to pause now to hear from

18:40

some of our great sponsors. More

18:46

now with Professor Pamela Carlin of Stanford

18:48

Law School and Mark Joseph Stern. So

18:50

I actually want to ask, there was this theme

18:53

that Justice Alito trotted out

18:55

that was kind of bone

18:58

chilling. I'm sure you would agree

19:00

with me that a stable democratic

19:02

society requires that a

19:04

candidate who loses an

19:06

election, even a

19:08

close one, even a hotly contested one,

19:11

leave office peacefully if

19:13

that candidate is the incumbent.

19:16

Of course. All right. Now,

19:20

if an incumbent who loses

19:24

a very close, hotly contested

19:26

election knows that

19:28

a real possibility after

19:31

leaving office is not that the president is

19:34

going to be able to go off into

19:36

a peaceful retirement, but that

19:38

the president may be criminally prosecuted

19:41

by a bitter political opponent,

19:44

will that not lead

19:46

us into a cycle

19:48

that destabilizes the

19:50

functioning of our country as a

19:53

democracy? For me, this

19:55

was when I went

19:57

through the looking glass. Like, this

19:59

was. that democracy

20:01

requires giving immunity

20:04

to criming presidents because otherwise they won't

20:06

leave office. I think Mark and I

20:08

said in our piece, it literally felt

20:10

like some articulation of like, don't make

20:12

me hit you again democracy. So Pam,

20:15

I just would love for you to

20:17

react to that statement

20:19

because for me, the very

20:21

notion that stability

20:24

requires allowing broad

20:27

immunity so that presidents who

20:30

commit crime will agree to

20:32

retire peacefully is

20:34

so insane. Yeah,

20:36

that was the moment where I felt like saying, that's

20:39

what just happened. This

20:43

might happen in the future. That's

20:46

what's already happened. If you

20:48

let people get away with that, what you've said

20:50

to Donald Trump is, if you

20:52

win the 2024 election, do not

20:54

bother to leave office in 2029. Just

20:57

stay there. That's really what

20:59

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

21:01

be any crime if you try to stay there. I

21:05

did have this, it wasn't just through the looking glass.

21:07

It was, did you just hear

21:09

what came out of your mouth? I

21:11

think this was a great example of Alito

21:14

being fully like Fox News brain poisons during

21:16

these arguments. I mean, I think this has

21:18

been happening for some years. He used to

21:20

ask these famously great questions, could the government

21:23

ban books, turning Citizens

21:25

United on its face, and

21:28

really getting to the heart of whatever

21:30

progressives are trying to argue that doesn't

21:32

quite cohere. But over the last few

21:34

years, it's just been culture war grievances

21:37

and stuff that falls apart

21:39

upon even a little bit of scrutiny. I think he's

21:41

losing his edge. And that was clear,

21:43

not only in this bizarro question, saying

21:45

that actually constitutional democracy requires us to

21:47

let presidents off the hook when they

21:49

engage in a criminal conspiracy to steal

21:52

elections, but it was also his next

21:54

round of questions to Michael Drieben, who

21:56

is representing Jack Smith, where

21:58

he had driven... walk through the

22:00

layers that sort of

22:03

protect a president from a

22:05

frivolous or a vindictive prosecution

22:07

and then dismiss each

22:09

one out of hand, right? So Dreeben

22:11

said, look, at first you have

22:13

to have a prosecutor who's willing to bring charges and

22:15

that prosecutor is of course accountable to the president, who's

22:17

accountable to the people. A grand

22:19

jury has to indict, you

22:22

know, there has to be a

22:24

criminal proceeding in court. Eventually a jury

22:26

of his peers have to decide whether

22:28

he's been found guilty and Alito just

22:31

laughs it off. There's the old saw

22:33

about indicting a ham sandwich. Yes,

22:37

but I think you had a

22:39

lot of experience in the Justice Department. You come

22:41

across a lot of cases where the

22:44

US attorney or another federal prosecutor really

22:46

wanted to indict a case and the

22:49

grand jury refused to do so. There

22:51

are such cases. Yeah.

22:53

But I think that the other

22:56

level of wilders and eclipse too.

22:59

Well, I think that that's for the

23:01

most reason is prosecutors have no incentive

23:03

to bring a case to a grand

23:05

jury and secure an indictment when they

23:07

don't have evidence to prove guilty, unreasonable

23:09

doubt. It's self-defeating. As though all of

23:11

that is one big joke. Like, oh,

23:14

prosecutors will do anything they want. We

23:16

all know Justice Department line attorneys are

23:18

hacks, right? Nobody believes a grand jury

23:20

is doing anything worthwhile. And then, oh

23:23

yeah, a jury of his peers, like

23:25

that's going to do anything. And this

23:27

is all coming out of the mouth

23:29

of the justice who is by far

23:31

the most friendly to prosecutors and most

23:33

hostile to criminal defendants in

23:35

case after case after case, right? The

23:38

guy who could not for the life

23:40

of him find a right

23:42

to a jury trial in the sixth

23:44

amendment or like due process for criminal

23:46

defendants. But when that defendant is president

23:49

Trump or former president Trump, he

23:51

suddenly thinks that this entire system

23:54

of criminal prosecution is so feeble,

23:56

such a bad joke that the

23:58

Supreme Court is itself has to step

24:00

in and essentially quash this prosecution as

24:03

I read his arguments because we

24:05

just can't trust the system to

24:07

work. The system that is incarcerating

24:09

so many other people whose Sam

24:11

Alito is just rubber stamping their

24:13

convictions right here. No, no, no,

24:15

no, no. We don't believe it

24:17

all in that system. It's

24:19

such a laugh. We can all

24:21

laugh about it in open court being a

24:24

bunch of BS and understand that it requires

24:26

the adult in the room to do the

24:28

real work of letting Trump off the hook.

24:31

Yeah, I wanted to ask you about that,

24:33

Pam, because I really felt like that was

24:35

a turn for me where

24:37

it was like winkingly, you know,

24:39

we both worked in the Justice

24:41

Department. We know what a racket

24:44

that crap is. And

24:46

again, it was a moment where I

24:48

felt, seeing you expressed, you know, about

24:50

that other statement about, you know, oh,

24:53

we have to let presidents commit crimes

24:55

because stability. This was another one of

24:57

those, I'm sorry, did one of the

24:59

justices of the United States Supreme

25:01

Court just imply,

25:03

not imply, overtly say that

25:06

everything that happens at the

25:08

Justice Department is hackery

25:10

and, you know, rigged prosecutions? Because if

25:13

he did, I would like him to

25:15

write that sentence. It was shocking. Yeah,

25:18

I mean, there was that shock to

25:20

it. But notice what's underneath all of

25:23

that is, you know, we're worried about

25:25

vindictive prosecutions. And we haven't

25:27

seen any up until this point that

25:29

is no president, you

25:31

know, prosecuted the president who came after

25:34

him. The closest we come is Gerald Ford

25:36

giving a pardon to Richard Nixon. And

25:39

for all of what

25:41

Sam Alito was saying, to be true,

25:43

he has to believe that this prosecution

25:45

itself is a vindictive prosecution, which means

25:48

he has to have bought Donald Trump's

25:50

narrative. And then he's attacking

25:52

the deep state, which is the career line

25:54

prosecutors. And when he does this with Michael

25:57

Drieben, and the thing to remember about Michael

25:59

Drieben almost his entire

26:01

career, Michael Drieven's career, has been

26:03

as a nonpartisan civil servant who's

26:05

gotten up there and argued cases

26:07

on behalf of the Bush administration,

26:09

argued cases on behalf

26:12

of the Trump administration,

26:14

argued cases on behalf

26:16

of the Obama administration. I

26:18

mean, what Justice Alito

26:21

did is essentially say, I'm

26:23

living in MAGA world, in

26:25

which this is a totally

26:28

bogus prosecution, ginned up by

26:30

totally bogus people as part

26:32

of a vindictive prosecution by

26:34

Joe Biden. And he's

26:38

also implicitly saying, and if Donald

26:40

Trump gets reelected, you just know he's going

26:42

to prosecute people vindictively too. I mean, he

26:45

really has lost faith in the entire system,

26:48

or at least is prepared to lose

26:50

faith in the system enough to decide

26:52

this case in Donald Trump's favor. I

26:56

wanted to ask both of you about

26:58

originalism, in part

27:00

because Mark and I are obsessing

27:02

about it for our end

27:04

of term big kind of

27:06

package on what the whole term meant.

27:09

And in part because there was this

27:12

amazing moment, I think I just want

27:14

to play the audio from Elena Kagan.

27:16

The framers did not put an immunity

27:18

clause into the Constitution. They knew how

27:20

to. There were immunity clauses in

27:22

some state constitutions. They knew how

27:25

to give legislative immunity. They

27:27

didn't provide immunity to the president. And

27:30

not so surprising, they were reacting against

27:32

a monarch who claims to be above

27:34

the law. Wasn't the whole

27:36

point that the president was not a

27:38

monarch and the president was not supposed

27:40

to be above the law. I had to

27:42

turn back to Dobbs here because at the

27:45

outset of Dobbs, right, Justice Alito says thunderously,

27:47

the Constitution makes no mention

27:50

of abortion as though that's

27:52

it. He's closed,

27:54

shot the book, doesn't use the

27:56

word no right. You know how

27:58

the Constitution doesn't mention? the

28:00

words presidential immunity. And

28:02

as Kagan points out, right, they

28:04

knew how to put it in.

28:07

There is legislative immunity, but not

28:09

presidential immunity. And I guess

28:12

this felt like one of those

28:14

mask off moments from the court's

28:16

originalists, because you had especially, I

28:18

think, Justice Kavanaugh railing about these

28:20

policy concerns about what happens if

28:22

you have special counsels and independent

28:24

counsels. These policy concerns about what

28:26

it means to criminally prosecute a

28:28

president. He is just reading those

28:30

policy concerns into what he calls

28:32

Article II. He can't cite any real

28:34

provision. You have Justice Jackson going through,

28:37

citing all of these duties, saying, OK, well, these are

28:39

clearly official acts. Can we draw the line here? Kavanaugh

28:41

doesn't do that. He just seems to think that Article

28:43

II makes the president a king, and that's the end

28:45

of the story. Pam,

28:47

I guess I want to ask this

28:50

case exists on two axes. One is

28:52

the legal merits, as he suggested. The

28:55

other is a temporal axis, which this

28:58

had to happen quickly. There was, I

29:00

think, some slim

29:03

read of hope that the court

29:06

could have written narrowly and disposed

29:09

of this rapidly, and this case

29:11

could begin in Judge

29:14

Tanya Chutkin's courtroom

29:16

in Washington, DC. It

29:18

appeared, at least I was getting

29:20

big remand energy from enough justices

29:23

that I think it's going back

29:26

for something. I

29:28

don't even know what the something could

29:30

be. I wonder if you feel like

29:32

speculating wildly both about what a remand

29:34

could look like, and then the

29:36

sort of, I think, on the temporal axis question,

29:39

whether this is game over because we don't have

29:41

a trial before November. I mean, there are a

29:43

couple of different things that could happen on

29:45

remand. The best version of remand

29:47

would be, and I think Justice

29:50

Sotomayor suggested this, is

29:53

you send it back down and you say, there

29:56

are a bunch of acts that the

29:58

president's lawyer conceded were... private

30:01

acts in a conspiracy,

30:03

that goes to trial, but you

30:05

have to give a cautionary instruction with

30:07

regard to the one thing that's pretty

30:10

clearly, I think, an official act, which

30:12

is his use of the Justice Department,

30:14

right? Because only the president

30:16

can misuse the Justice Department, an average

30:18

Joe can't, whereas all of the other

30:20

things that Donald Trump is alleged to

30:23

have done, including pressing Mike

30:25

Pence, are things that any candidate could have

30:27

done. So you send it back

30:29

and you say, you know, you

30:31

have to have a trial that narrows

30:33

what's going on to liability

30:36

can only come from the private act

30:38

that he did. But what

30:40

worries me is they send it back down

30:42

for more proceedings of

30:44

some kind on which acts

30:47

are official, which acts aren't having decided

30:49

that he's immune from prosecution for the

30:51

official act, which then gives him another

30:54

potential round of appeals, because immunity of

30:56

this kind is being treated as something

30:58

that you can have an interlocutory appeal

31:01

on. And I should explain probably for

31:03

the couple of listeners who might

31:05

not know this, that generally if you have

31:07

an argument that you can't be prosecuted for

31:09

something, or that the

31:11

prosecution can't use particular kinds of evidence

31:13

or the like, you have to go

31:16

to trial if you're acquitted, great, if

31:18

you're convicted, you then appeal everything at once

31:20

at the end of the case. And that's

31:22

a little bit what they were getting into

31:24

when they started talking about, well, could a

31:26

president have a defense of saying,

31:29

yes, I did this, but

31:31

you can't hold me liable because

31:33

of, you know, public function doctrine

31:35

or whatever. But I think what they've done

31:37

is they've created a system where there

31:39

could be another round of appeals to

31:41

the Supreme Court before there's a trial.

31:43

And as probably most of your

31:46

listeners know, they all flee Washington

31:48

at the beginning of July. And so

31:50

the idea that a court

31:52

that's already dragged this out, they could have

31:54

taken this case in December and we could

31:57

have been back down in the district court

31:59

in January and Instead, we're looking at

32:01

May or June for this. Words

32:06

fail me sometimes when I think about this, how

32:08

little the Supreme Court actually cares

32:10

about protecting our democracy at this

32:12

point. I totally agree. I just

32:14

want to add one footnote, which

32:16

is that I think it's

32:19

really disappointing and alarming that the

32:21

court could cut out of this

32:23

case Trump's efforts to actually use

32:26

his presidential authority to steal the

32:28

election because that really is the

32:30

power of the charges

32:33

against him of the narrative here

32:35

that he abused his office, used

32:37

those powers to

32:40

unlawfully interfere in the peaceful transfer

32:42

of power to another president in

32:44

violation of many laws and in

32:46

violation of the 20th Amendment to

32:48

the Constitution, right? Which

32:50

in violation of the presidential oath, which

32:53

requires him to take care that the laws

32:55

be executed, and that means taking care that

32:57

we have an election and

32:59

a peaceful transfer of power and that

33:01

he packs up his stuff and heads

33:03

back to Mar-a-Lago. And

33:05

so to slice that out of this case,

33:07

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

33:10

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

33:12

but to not present it

33:14

or to tell the jury to essentially

33:16

disregard it when it's considering liability really

33:19

weakens Smith's arguments

33:22

for criminal liability and also weakens

33:24

the impact of this case, I

33:26

think, for the American public because

33:28

it transforms from a case about

33:31

a corrupt president abusing executive authority

33:33

in order to maintain an unlawful

33:35

hold in office to a ratty,

33:37

nasty guy who happens to be

33:40

president engaging in all of this

33:42

conduct, you know, the fake electors,

33:44

the lying, whatever, the fraud in

33:47

order to maintain his hold on office.

33:49

But you can't think about that latter

33:51

part. All you can look at is

33:53

the kind of, frankly, small ball stuff

33:55

that to me had always been in

33:58

the background of this broader theme. of

34:01

abusing executive power, official power, official duties,

34:03

whatever the Supreme Court's gonna call it.

34:05

And so I do think it's gonna

34:07

be really unfortunate if the court reaches

34:09

that quote unquote compromise. And I think

34:11

that seemed to be where Barrett was

34:13

going. I mean Barrett by far asked

34:15

the best questions of the conservatives. She

34:17

actually seemed to be trying to do

34:19

law unlike the guys on the bench,

34:21

but she seemed to think that what

34:23

you need is some kind of hearing

34:25

before the case goes to trial where

34:27

you separate out the official acts from

34:29

the private acts and only allow the private

34:31

acts to go forward or develop some kind of

34:34

way for the jury to only consider the private

34:36

acts. Now I think there's a silver lining that

34:38

that could actually turn in to a kind of

34:40

mini trial in Judge Chutkin's courtroom. Like I think

34:42

that could be very salutary and positive and give

34:45

us a kind of glimpse of what will happen

34:47

and maybe release more evidence that the public deserves

34:49

to see. But it would ultimately

34:51

mean that if and when the jury convicts,

34:53

it convicts on the basis of this small

34:55

ball stuff that to me does not even

34:57

begin to tell the whole story of the

34:59

criminal corruption and conspiracy. Can I just drop a

35:01

footnote to your footnote, which I agree with

35:03

everything you said, but did

35:07

it not strike any of the justices

35:09

that if Joe Biden as the challenger

35:11

had done what Donald Trump had done,

35:13

he could be put in jail, but

35:15

Donald Trump as the president does exactly

35:17

the same things and he can't be

35:19

put in jail? I mean, that just

35:21

strikes me as so lunatic that

35:25

if Joe Biden had done false

35:27

affidavits or had pressured people or

35:29

the like, he could be

35:31

put in jail. And if he had won the

35:33

election, he could be tried for all that stuff

35:35

after he leaves office. And somehow

35:38

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

35:40

get out of jail free card forever

35:43

just is mind

35:45

boggling. Let's take a short

35:47

break. You

35:52

are listening to Amicus with me,

35:54

Dahlia Lathwick. Let's get back to

35:57

my conversation with Professor Pam Carlin

35:59

and Marjorie Joseph Stern, about

36:01

the gobsmacking oral

36:03

arguments at the High Court this past week.

36:07

So Pam, I think this takes me

36:09

to the place I wanted to sort

36:11

of wind up on this

36:13

conversation, and we can turn to Emtal in

36:15

a second. But I think

36:17

you're both saying, and I'm

36:21

certainly feeling it myself, this

36:23

is not the John Roberts Court that I

36:26

expected to show up at this argument. And

36:29

I think you're both saying that as

36:31

sort of blinkered institutionalists like myself, I'm

36:33

getting an immense amount of, I told

36:35

you so, blow back this. Like, I

36:37

told you there are a bunch of

36:39

partisan hacks. I think I

36:42

would love to hear from each of you why

36:46

this was just so shocking, because

36:48

it's not just that it

36:50

was shocking on the merits. And it's not

36:53

just, as we've kind of through

36:55

the arguments that a whole bunch

36:57

of ancillary crap was sort of

37:00

chummed into the case. It's

37:02

that, at least for me, I

37:04

truly believed at least seven

37:07

members of the John Roberts Court

37:10

took the potential

37:13

failure of democracy as a

37:15

proposition, seriously

37:17

enough that the partisan kind of valence

37:19

of this case went away. And I

37:22

think you just said it, Pam. That

37:25

didn't happen. So part of

37:27

what's shocking about this is juxtaposing this

37:29

against Trump against Anderson, which was

37:31

the case earlier in the

37:33

term that involved whether Colorado

37:36

could keep Donald Trump off

37:38

the primary ballot for

37:40

having engaged in insurrection, which under

37:42

Section 3 of the 14th Amendment

37:45

disqualifies you from holding an additional

37:47

office if, after you take an

37:49

oath to support the Constitution, you

37:52

engage in an insurrection or rebellion.

37:55

And I think coming out of

37:57

that argument where the court fairly

37:59

swiftly, reached a unanimous bottom

38:01

line that they were going to keep

38:03

him on the ballot because that's what

38:05

democracy requires to let the people decide.

38:08

You kind of thought, well, maybe they have some kind of

38:10

grand bargain here, which is you'll keep Trump on

38:12

the ballot, but you'll say, of course

38:15

he's not immune from prosecution for

38:17

engaging in crimes that undermined

38:19

the very democracy that you just said

38:21

you're so committed to protecting. And

38:24

instead what we got was

38:26

nothing about protecting

38:29

democracy. And to go back

38:31

to something Mark said earlier, not

38:33

letting the people decide, which is the way the

38:36

people decide about crimes is you take them to

38:38

a jury and the jury decides

38:40

whether somebody's guilty beyond a reasonable doubt.

38:43

And it's like democracy

38:45

for me, but not for thee

38:48

is kind of where the Supreme Court seems

38:50

to be ending up. I mean, maybe they'll

38:53

surprise us and it'll be they were

38:55

just letting off some steam. But

38:58

where the argument seemed

39:00

to go was all

39:03

of the things that they said in Trump

39:05

Against Anderson played no

39:07

role, had no weight in how they're going

39:09

to decide Trump Against the United States. Right.

39:14

Anderson was screw originalism,

39:16

democracy demands more. And

39:19

then this was screw democracy

39:21

because some other

39:23

thing because we don't want overzealous

39:26

prosecutors to go after presidents.

39:29

Mark, do you have a thought on

39:33

the question I just posed to Pam, which is, I

39:36

think you and I have spent

39:38

two years saying the John Roberts

39:40

Court is conservative. Yes, that nihilist

39:42

no. And I think

39:44

maybe we were wrong. And

39:46

the one sort of coda to

39:48

the question, if questions can have photos

39:51

is I think the mere

39:53

presence of Clarence Thomas on the bench

39:56

makes a point that you and I have

39:58

been struggling with which is. is the rut

40:01

is so deep that we

40:03

expected too much. Yeah, I

40:05

mean, at one point there was a discussion

40:07

of Trump and his allies pressuring state legislators

40:10

and swing states to nullify the results of

40:12

the election and award these fake electors to

40:14

Trump, right? And I thought, oh, you know

40:16

who else pressured state legislators to do that?

40:18

Ginny Thomas, the wife of Clarence

40:21

Thomas, who was sitting right here before

40:23

my eyes, fully participating in this case.

40:25

I mean, that corruption now feels so

40:27

baked in that I think we just

40:29

sort of move along, but in

40:31

a sense, I feel like

40:33

it delegitimizes his case and

40:37

proves that there are at least

40:39

a few members of the court

40:41

who just believe that January 6th

40:43

was no big deal. Clarence Thomas

40:45

undoubtedly thinks January 6th was no

40:47

big deal. The broader minimization of

40:50

January 6th, the refusal of the conservative

40:52

justices to seriously engage with what happened

40:54

on that day, to kind of brush

40:56

it off with these breezy questions about,

40:59

oh, we don't really care about this

41:01

case. We're deciding a rule for the

41:03

ages. As Justice Gorsuch said,

41:05

that was remarkable to me. It was

41:08

a little less shocking only because last

41:10

week, in arguments in the

41:12

Fisher case, right, we similarly heard the

41:14

conservatives minimizing January 6th. That was a

41:16

case about these obstruction charges that had

41:18

been brought against 350 some odd January

41:22

6th rioters, also two of the

41:24

four charges against Donald Trump in

41:26

the January 6th indictment, right? And

41:28

there too, we heard the conservatives,

41:30

again, just laughing off what occurred

41:32

on that day. And it's no surprise

41:35

too that in Anderson, they were

41:37

willing to sort of just shrug

41:39

off January 6th, barely engage with

41:41

what many have, I think, accurately

41:43

described as an insurrection and say,

41:45

of course, Trump can appear on

41:47

the ballot. What is this nonsense?

41:49

So yes, the nihilism thought to

41:51

me, it felt deeply corrosive. It

41:54

felt like a real affront to

41:56

the democratic system that these guys purport

41:58

to be safeguarding. I completely

42:00

agree with Pam's point that jury trials

42:02

are a fundamental part of our democracy.

42:04

I mean, Justice Scalia, before he started

42:06

to kind of lose it in the

42:08

end, would write quite eloquently about this,

42:10

that this ability to insist

42:13

on being tried by a jury

42:15

of your peers is fundamental to

42:17

the idea of representative government, was

42:19

fundamental to the framers. And

42:21

it all seemed to wash away with, I

42:23

think, an assumption on the right that, of

42:25

course, a jury in DC would indict

42:28

a ham sandwich and convict Trump because he's

42:30

a Republican. I found all

42:32

of that incredibly dispiriting. Essentially,

42:34

what I think we saw was

42:37

a conviction on the right

42:39

flank of the court that

42:41

every aspect of democracy that the

42:43

rest of us are subject to, including

42:45

a criminal justice system and a right

42:47

of trial by jury, that all

42:50

of that can't really be trusted to

42:52

work on its own when it comes

42:54

to Donald Trump, and that Trump has

42:56

some kind of constitutional guarantee for these

42:58

guys to leap in and give him

43:00

an assist and give him what

43:02

Pam called a get out of jail free card. I

43:04

think that's exactly right. One that

43:07

we all recognize would never be granted

43:09

to a Democratic president. Whatever rule the

43:11

court comes up with, they might as

43:13

well insert a Bush v. Gore style disclaimer

43:15

that this is a ticket good for one

43:17

case only for all their talk about deciding

43:20

a rule for the ages, not focusing on

43:22

the here and now. This was ultimately all

43:24

about crafting a rule to try to prevent

43:26

Donald Trump from facing accountability. It's

43:29

true. In a strange way, Mark, you

43:31

really captured it. Donald Trump was both

43:33

everywhere and nowhere in that

43:35

hearing, right? And the events of January 6

43:37

were everywhere and nowhere. I

43:40

want to just turn to Emtala for a

43:42

brief second. Mark and I did

43:44

a pop up show about it and

43:46

we wrote about it. But I'd love

43:48

to hear from you, Pam. And I

43:50

think we've covered it enough on the

43:52

show that folks know this was the

43:54

case about Idaho, which has a much

43:57

more constricted notion of what ER doctors

43:59

can provide. in terms of

44:01

care and it conflicts with MTALA,

44:03

which is a federal statute that

44:05

lays out what stabilizing care is

44:07

that hospitals are required to provide.

44:09

And I think the question, Pam,

44:12

can just be one of atmospherics

44:14

because, again, it felt as

44:16

though there was very little

44:18

serious reckoning in the courtroom

44:21

with what actually happens to

44:23

actual women who show up

44:25

with ruptures, with hemorrhaging, with

44:27

sepsis, with the potential

44:30

of organ damage. And it

44:32

seemed like it was quite

44:34

a lengthy meditation on arcana

44:36

about separation of powers

44:39

or the spending clause. I

44:42

guess my question for you is,

44:44

it was fascinating to me that

44:46

when tasked with explaining why Idaho

44:49

prosecutors were going to go

44:51

easy on physicians who stand to

44:54

spend two to five years

44:56

in jail and lose licensure,

44:58

if they guess wrong about the

45:00

daylight between MTALA and the

45:02

state trigger law, the answer

45:04

was prosecutorial discretion. It was that

45:06

prosecutors are going to take

45:08

care of these doctors because

45:10

prosecutors are good people. That

45:13

struck me as one of the things that

45:15

was so different about the two cases. One

45:17

of them is, you know, doctors shouldn't

45:19

worry about being prosecuted when they do

45:21

their best within the scope of their

45:23

official duties, but the president really does

45:25

have to worry, right? The other

45:28

thing that seemed like a contradiction to

45:30

me, and this again goes back to something Mark was saying, is

45:33

that both cases seem to be girls against

45:35

boys on the court

45:37

as well. That is, you know, we

45:39

all know that Justice Barrett is

45:42

a very strong, pro-life, anti-abortion force

45:44

on the court, but she at

45:46

least understood what was

45:48

going on here. And the

45:51

male justices just didn't seem to think there were

45:53

any women in this case. I mean, there was

45:55

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

45:57

talking a lot about the women, but look

46:00

at the statute, what about the unborn child?

46:03

And the fact that the words

46:05

unborn child are in the statute

46:07

shows that there's no point in

46:09

protecting emergency treatment for

46:11

women that terminates a pregnancy that

46:13

hasn't yet ended, even

46:16

though as Elizabeth Prelegar, who did

46:18

a phenomenal job at the argument,

46:20

and by the way, was Miss

46:22

Idaho. You know?

46:24

Wow, fun fact. Did you not know

46:26

that? Yeah, I knew she was from

46:28

Idaho. I'm not sure I knew she

46:30

was Miss Idaho. Wow. And so, you

46:32

know, she understands Idaho, and she was

46:34

up there doing a great job in

46:36

the case of pointing

46:38

out just what's happening

46:40

on the ground. And it was like,

46:42

yeah, yeah, yeah, that's happening on the

46:44

ground. But what about here at 35,000

46:47

feet? Let's talk about how you actually

46:49

bring a spending clause case. Right. And just

46:51

to make a kind of wonky point that I

46:53

think is a through line, Idaho

46:55

did not raise that spending clause

46:57

argument in the lower courts properly.

46:59

Right. So Idaho forfeited that question,

47:01

as several liberal justices pointed out.

47:04

And yet the conservatives, especially Justice Gorsuch

47:06

and Justice Thomas, tried to raise it

47:08

from the grave and use it to override

47:11

the interests of women in

47:13

Idaho who are, we know,

47:15

being airlifted from hospitals in

47:17

Idaho to neighboring states because

47:20

they need emergency abortions that are still

47:22

criminalized in Idaho because M.Tala is not

47:24

enforced on the ground there. And the

47:27

state only allows abortions when the patient

47:29

is on the brink of death. Well,

47:31

and if you read the news, in

47:35

addition to all the examples of women

47:37

being airlifted out, we may end

47:39

up with no doctors in Idaho at

47:41

all, because doctors are leaving Idaho because

47:44

they can't, you know, OBGYNs are

47:46

leaving because they can't practice emergency

47:48

medical folks are leaving Idaho

47:51

because they can't practice. And, you

47:53

know, the Supreme Court that's so

47:55

concerned about the future and the

47:58

Trump case seems utterly with

48:00

the future welfare of people in Idaho,

48:04

already born people in Idaho. And

48:06

I guess I just want to make

48:08

the point that if these cases come

48:10

out and the majority tries to spin

48:13

them as these narrow technical complex decisions,

48:15

if Mtala comes out on spending clause

48:17

grounds, which would be outrageous because it

48:19

was a forfeited argument, but whatever, you

48:21

know, if the Trump case comes out

48:23

with this really sort of Byzantine distinction

48:26

between official and private acts with this

48:28

complex remand that's going to take months

48:30

to sort out, we're going

48:32

to get a lot of gas lighting from

48:34

the rights, from the court, from conservative

48:37

media and politicians, saying, you know, you

48:39

silly folks who are outraged about this,

48:41

you just don't understand the law. It's

48:43

so complicated. Why are you talking about

48:45

women's lives when you should be talking

48:47

about the spending clause? Why are you

48:49

talking about January 6th when you should

48:51

be talking about, you know, article two

48:53

and all of these granular details of

48:55

article two that the court is making

48:57

up on the spot and then applying

48:59

to President Trump and nobody else. I

49:01

would just urge everyone not to fall

49:03

for it. The gas lighting is going

49:05

to be bad, but should be overcome

49:07

by the knowledge that every listener of

49:10

this show will have that I hope

49:12

the majority of the American public will

49:14

have, that the court did this to

49:17

create a smokescreen to obscure the injustices

49:19

that it is inflicting, that the court

49:21

will take these cases and wrap them

49:24

up in arcane doctrine, sometimes doctrine involving

49:26

questions that were forfeited in

49:28

part so that the public reaction is

49:31

muted and so that the public might

49:33

feel it doesn't fully understand the impact

49:35

or import of the case. Do not believe

49:37

it. It will not be so. They did

49:39

that and they knew what

49:41

they were doing and we all have every

49:43

right to be outraged about what's actually going

49:46

on in these decisions, which is the ongoing

49:48

minimization of January 6th, The

49:50

ongoing dismissal of women's health and

49:52

women's lives, the elevation of hypothetical

49:55

interests of a fetus over the

49:57

actual woman who we had thought.

50:00

Deserve equal treatment under the law. Us all

50:02

of that should be front of mind, and

50:04

whatever arcane garbage they come up with to

50:06

disguise it just set that to the size.

50:08

I think that. What? You're saying,

50:10

Mark what you're saying. Pam is

50:12

it. For those of us who

50:14

spent the interregnum between January Six,

50:16

which happened by the way across

50:19

the street. From the Supreme Court.

50:21

Let's not forget. And

50:23

this past Thursday waiting to see

50:25

a performance of the justices as

50:28

the grown ups in the room.

50:31

Instead saw a performance of i don't

50:33

know what all, but if that is

50:36

being a grown up. I.

50:38

Want to stay a kid forever

50:40

because that was just ponderous and

50:42

stroking and. Of a whole bunch

50:44

of like squirrel school squirrel. And

50:47

in the face of as

50:49

he said pants some of the

50:51

most existence important questions that the

50:54

court has ever faced in American

50:56

history and that was not a

50:58

performance of taking it seriously that

51:01

was a semi like from assistance

51:03

let taking it seriously would. Be.

51:07

I mean women are facing. Great

51:09

health crises. Democracy is facing a

51:11

grave health crisis and the Supreme

51:13

court just doesn't seem to care.

51:15

The supreme court doesn't seem to care.

51:18

I think that was the original. Title

51:20

of the Draft of the Peace

51:22

at Mark and I Rode on

51:24

Thursday. Pamela Carlin is the Tennis

51:26

and Hall Montgomery Professor of Public

51:29

Interest Law at Stanford Law School

51:31

and Co director of Stanford's Supreme

51:33

Court Litigation Clinic, and as twice

51:35

served as Deputy Assistant Attorney General

51:37

in the Civil Rights Division of

51:39

the Us Department of Justice. Most

51:41

recently as the Principal Deputy Assistant

51:43

A Cheats From Twenty Twenty One

51:45

to Twenty Twenty Two. She is

51:47

written multiple leading taste books on

51:49

constitutional law and. There is nobody,

51:51

his voice, we have missed more

51:53

on this show, Pav think he's

51:55

so much for being here and

51:57

that marked the Stern is. The

52:00

street or violence on this

52:02

nightmare? We call covering the supreme

52:04

court much. It is always a treat

52:07

to have you around things you think

52:09

Stoia. Oh thanks. Is

52:13

it out at this that line that

52:15

Lyndon Johnson said when he first address

52:17

the nation after became. Present all I

52:19

have I would gladly give not to

52:22

be here today. I'm

52:24

an answer to feel that way Talking about

52:26

the fifth suitcases. And.

52:30

Sleepless Members I will see you

52:32

in the Amazon Plus subscribers only

52:34

bonus episode. This week Jeremy stole

52:37

reports from that Manhattan criminal hush

52:39

money trial Donald Trump's he is

52:41

sitting in the room If you

52:44

are not a Sleepless Members in,

52:46

listen to that episode now by

52:48

joining. Our ever growing. Merry

52:51

Band of Fleet Plus subscribers. Not

52:53

only will you unlock exclusive bonus

52:55

episodes of Amethyst, but you will

52:57

also access ad free listening across

52:59

all of your favorite place I

53:02

can subscribe now on apple pie

53:04

stuff like that and try same

53:06

as a Top of Are So

53:08

page or visit sleep.com/amethyst Plus access

53:11

wherever. You listen. And

53:13

that is a rap for this episode

53:15

of Annika as the full on nihilism

53:17

additions. Thank you so much for listening

53:20

and thank you so very much for

53:22

your letters and your questions and comments.

53:24

You can keep in touch at Amethyst

53:27

sleep.com or you can find Us at

53:29

Safe But since Com/amethyst podcasts and hey

53:31

did you get your tickets yet for

53:33

our Washington D C life So. On

53:36

May fourteenth, Said she was

53:38

gonna be really crucial for understanding

53:40

the end of this supreme court

53:42

term and to understand so very

53:45

much of the Ports radical revanchist

53:47

jurisprudence of the last several years

53:49

and an understanding of what we

53:51

might be able to do about

53:53

it. So go to sleep.com/and as

53:55

a slave to snag your tickets

53:57

to get more details. pop

54:00

a link in the show notes and

54:02

we will see you there. Sarah Burningham

54:04

is Amicus, senior producer with

54:06

help from Patrick Slade. Alicia Montgomery

54:09

is vice president of audio at

54:11

Slade, Susan Matthews is Slade's executive

54:13

editor and Ben Richmond is our senior

54:15

director of operations. We will

54:18

be back with another episode of Amicus

54:20

next week. Until then, hang on in

54:22

there.