Ruling Through The Courts When They Don’t Have The Votes With Dahlia Lithwick

Ruling Through The Courts When They Don’t Have The Votes With Dahlia Lithwick

Refuse Fascism Episode 175

Sun, Oct 15, 2023 1:42PM • 51:41

Dahlia Lithwick 00:00

There’s case after case after case where the courts below took it upon themselves to force an issue. If you don’t lose in a crazy case the court should not have heard in the first instance, all I can say is not getting punched in the face is not a win. To cover the court as though it is this laboratory where nine scientists put on white coats and do evidence based science experiments about the law, when the lab the lab coats the Bunsen burners, the test tubes, have all been bought and paid for, is insane. A six member conservative supermajority is picking the cases, is deciding the outcomes of the cases, all of which is being bought and sold by people with interests before the court. The court isn’t just a sort of objective neutral witness to attempts to constrict democracy, the court is a player — this conservative supermajority — in constricting democracy.

Sam Goldman 01:13

Welcome to Episode 175. You heard that right, episode 175 of the Refuse Fascism podcast. A podcast brought to you by volunteers with Refuse Fascism. I’m Sam Goldman, one of those volunteers and host of the show. Refuse Fascism exposes analyzes and stands against the very real danger and threat of fascism coming to power in the United States. In today’s episode, we’re sharing an interview with Dahlia Lithwick to discuss the U.S. Supreme Court.

On this 175th episode, I want to take an extra moment to thank you for listening and being part of refusing fascism in the name of humanity. Thank you for being on this journey with us as we engage dialogue and debate with a broad array of writers, scholars, legal experts, and people from different walks of life on the routes, nature, and trajectory of fascism in this country. Thanks to all who share this show with others, whether through social media or talking about it with friends and fam. And of course, thanks to our sustainers and patrons who make this show possible.

We are proud to bring you the stories of people rising up and working together with you on changing the way people think that prevents them from taking necessary action, helping people to look at uncomfortable truths and act with daring. Together, we are forging understanding and relationships aimed at preventing the consolidation of American fascism.

So I hope that you’ll help us mark this milestone and reach more people who want to refuse fascism by writing a review on Apple podcasts and dropping five stars wherever you listen to your pods. I can’t overemphasize what a difference this makes. Go tell some strangers while you listen and they should too. Subscribe/follow so you never miss an episode. And of course, keep up all that great commenting, sharing on social media. And if you already do all those wonderful things, consider becoming a patron to support the show for as little as $2 a month over at Patreon.com/Refusefascism.

Now, I want to get you to this interview without saying a lot. But we have to talk about Gaza. In this past week, the slow genocide in the Gaza Strip has begun turning into a fast one. We will likely be covering this in more detail in future episodes, but cannot be silent now. While our podcasts focus is on American fascism, our all volunteer production team are internationalists and aim to take a scientific view which demands recognizing the global rise of fascism from India to the Philippines to Hungary and yes, Israel, amongst other places.

So we have to say, and are saying: Bibi is a fascist, genocide is unconscionable, revenge isn’t liberation — this goes for everyone. People are not their government, and people in this country have a responsibility for the crimes that our government commits. Right now, the Biden administration, while not fascist, is enthusiastically supplying and supporting mass murder in Gaza. These war crimes, crimes against humanity on the path to genocide, would not be possible without the green light of the U.S. government.

Overriding that green light through the power of the people in the streets is a worthy goal because silence is complicity. The horror we are already seeing has the potential for escalation on an unimaginable scale. It must be opposed and to speak specifically to the terrifying and grotesque connection between this horror and American fascism, Benjamin Dixon pointed out on Twitter (yes, I’m still calling it that) that while some Jewish Israelis are calling on Netanyahu to resign, white American evangelicals are calling on Netanyahu to turn Gaza into a parking lot to kick off Armageddon. More on this to come.

Related to my interview with Dahlia Lithwick. I wanted to call folks’ attention to Alexander v. South Carolina State Conference of the NAACP. This past week, the Supreme Court of the United States heard oral arguments in the case involving NAACP led challenge to South Carolina’s racially gerrymandered congressional electoral maps. These maps were ruled unconstitutional by a federal district court back in 2021 and this past week, oral arguments strongly indicated that SCOTUS will rule in favor of upholding a South Carolina’s Republican drawn racially gerrymandered congressional district. So, stay tuned for more coverage on this and future episodes. With all that, here’s my interview with Dahlia.

Sam Goldman 05:52

We are promised a quieter, calmer Supreme Court term. All that’s on the line are potentially women’s lives, death to the administrative state, the potential triggering of another Great Depression, with the potential for bans on trans healthcare teed up by Dobbs, and potentially the limiting nationwide of access to the abortion medication, mifepristone. There are some great resources out there to learn the legal details of the cases before the court this term.

Notably a recent episode of Amicus, featuring Mark Joseph Stern, as well as the 5-4’s podcast term review, so check the show notes for those. But here today, we’re going to pull back the lens on how this court and this term fit into what we on the show would call the growing fascist threat, and the stakes of the cases they will potentially be hearing and deciding this year. To help us, I am honored to welcome back on the show Dahlia Lithwick. Dahlia writes about the courts and the law for Slate, and hosts the podcast Amicus. Welcome, Dahlia. Thanks for joining Refuse Fascism.

Dahlia Lithwick 07:01

Thank you for having me back, Sam. It’s great to be here. I mean, given your cheery introduction, great is possibly a poor word choice, but it’s certainly a great thing to be here.

Sam Goldman 07:11

Who knows? Right? None of these things are predetermined and we’ll get into that. I would rather be proved wrong, obviously, on everything.

Dahlia Lithwick 07:21

Yeah. I think one of the things we’re here to talk about is the ways in which sometimes a term like last term, which is by every measure catastrophic for the things that we value, gets framed by like corporate media as: Hey, it was pretty middle of the road, you know, look at Brett Kavanaugh, the great moderate, that guy is basically a centrist. One of the things we have to pull at is why the mind is so desperate to rewrite what has happened and what is going to happen through this lens of everything’s fine.

Sam Goldman 07:54

Such a good point, I’m gonna put a pin in it. And I want to get back to that. I really appreciated you and Mark’s writing, that this term, you wrote, “is opening under the cloud of rolling ethics scandals that cut to the heart of the court’s legitimacy.” And you pointed our attention to what you both called the tectonic shift that has already happened within the court itself. I wanted to talk with you a little bit more about what is this radical transformation of the court that we’re seeing? How does that relate to the ethical scandals that are now like encompassing the court as a whole?

Dahlia Lithwick 08:32

So that’s, I think, exactly the right framing question to go into this term with, because I think we have, among our other sloppy media tendencies, we have a tendency to tell a kind of split screen story about the Supreme Court. One is, let’s look at the cases on the docket. They’re taking fewer and fewer cases, right, between 60-some and 70-some, the lowest we’ve ever seen. We have this in of a handful of cases and we look at them as though they’re science experiments.

Look at this totally neutral oracular court that’s doing this amazing, totally dispassionate test of whether the Chevron doctrine still exists — and we can talk about what that means in a minute. Then there’s this other screen — and by the way, that first story of the dispassionate oracular court on high — the only thing that matters is the output in the last two weeks of June, that’s the story we’ve been telling for decades about the court.

Now there’s this other story, in the other screen, that is what the hell’s going on with Harlan Crow? Why are the Koch brothers flying Clarence Thomas to high donor events where people who spend the most money get to hang out with Clarence Thomas, and, by the way, the Koch brothers literally are at the epicenter of transforming the Court and eviscerating the regulatory state. There’s this sloppy tendency to cover doctrine as this neutral, we’ll just watch this thing play out and see what happens to the Second Amendment this term, and then this kind of scandal ridden: Oh my God, look at the size of the yacht, and how many dollars does it cost to have an RV? And what is a Glacier Martini anyway?

And why is Sam Alito not disclosing? We’re watching that like it’s a kind of soap opera, like a kind of other story. What Mark and I were trying to do in the piece you’re referencing, and also in the podcast you’re referencing is to knit those stories together, and say that that second story which is being covered by ProPublica, and Politico and the Washington Post and The Guardian, and the places that don’t cover the Court, as though it’s this mountain of truth on high but as though it’s a political institution, that story explains the first story, which is: Why is the wealth tax case even on the docket? Why was the independent state legislature case last year even on the docket? Why is it that Harlan Crow’s wife, Kathy Crow, sits on the board of the Manhattan Institute that has briefs in all these cases?

They’re not separate stories, and so I think what I want to say at the risk of belaboring the bad metaphor we used in a piece, Sam, is that to cover the court as though it is this laboratory where nine scientists put on white coats and do neutral evidence based science experiments about the law, when the lab, the lab coats, the Bunsen burners, the test tubes, have all been bought and paid for by Barry Seid, and his $1.6 billion that he gave Leonard Leo to use on the courts is insane. We cannot be this clueless. So I want us really to think about the term as the fusing of a story of what are the cases and what’s going to happen to the law? And the story of how did we get here? And how did we get to a moment where a six member conservative supermajority is picking the cases, is deciding the outcomes of the cases, all of which is being bought and sold by people with interests before the court? They’re the same story.

Sam Goldman 11:54

To probe further in that, how did we get to this point?

Dahlia Lithwick 11:59

WNYC and ProPublica have an amazing new podcast out called We Don’t Talk About Leonard, the first two episodes have dropped, where they essentially do the string board. It’s not a complicated string board. It’s a string board that actually has, like, two strings. We need to understand that this effort to commandeer the Judiciary for the purpose of making sure that the very wealthy, the very white, the very conservative big donors and all oligarchs run the country through the courts, because they can’t win through democracy, has been ongoing for decades.

The fact that we were kind of asleep at the switch — and I want to be very transparent and say, you know, it’s been a huge source of what we’re doing editorially at Slate, which is mea culpa, because we have not covered it enough this way, but — the fact that we continue to say: It’s too confusing, I don’t understand; Who’s Leonard Leo? What’s what’s wrong with a justice, flying on an empty seat to an Alaska fishing retreat with the guy who had a case before the court? We do that at our peril, because I think this is the most obvious manifestation of how you commandeer democracy when you cannot win by voting, you cannot win in the legislature, the only way to win is to capture the courts. And how we got here is that that’s been happening in plain sight for many years, and those of us who cover the court didn’t really cover it. We didn’t think it was our beat. And the folks whose job it was to say: Hello, hello, hello, this is happening were treated like they were nut bags, even though they were right about everything.

Sam Goldman 13:35

I think that’s really essential background to start the conversation, because this is the foundation on which all these cases, regardless of the year, are going to be decided. I share your contempt — I’m not sure if that’s the right word, I think it’s too strong — in will they, won’t they speculation about how a given case is going to get decided. We do think it’s important to understand what is being decided and what is most essentially the stakes. I just wanted to kind of keep it really open. What are the cases we should be aware of, especially for our listeners who are concerned about the fascist threat? We know we should be worried. Tell us what exactly are we worrying about? And how does the batshit crazy Trump shaped Fifth Circuit have to do with this all?

Dahlia Lithwick 13:35

That last question is a good way to get to the first question. One of the things that I think folks should be worried about — and this is not an idea that is original to me. Voting Rights activist and lawyer Mark Elias said it on my show a few weeks ago, and it gave me goosebumps. I was probing with him this question of: The ink was not yet dry on the Supreme Court decision in Allen versus Milligan, which was the decision that said: No, in fact, Alabama, you must draw maps that are in conformity with section two of the Voting Rights Act, and that means that you need to draw not one, but two districts in which Black voters have some chance to effectuate their will at the voting booth. That was not an equivocal decision. And for folks who were paying attention this summer, the state of Alabama just said: No. I mean, they literally refused to comply. You can talk about why that happened. That’s, I know, kind of undergirding your question.

But the thing that Mark Elias said that kind of gave me the shivers is he said, there’s one theory, which is kind of the one that was floating in the ether that Justice Brett Kavanaugh signed on in that opinion, but he wrote this kind of completely fatuous concurrent saying: Oh, there’s another basis by which, if you come back to us, we will, in fact, let you use the maps as they stand. And the state of Alabama just thinks we have Kavanaugh in our pocket, so we’re going to just come back on that theory. That’s scary.

There’s a much scarier thing he said is we’re at a moment where the lawlessness is an end in itself. Where, to perform, we’re back to massive resistance, we’re back to Little Rock, we’re just saying: Don’t care what the court says, not bound by it. Is Alabama, which by the way, has now been again refused by the Supreme Court last week — they are going to have to draw permissible maps, but if Alabama is an avatar for that phenomenon that Elias is describing, the Fifth Circuit is that on steroids, because this fifth circuit now takes every decision that the court says and plays it out in extremis to the most outside, illogical boundaries of what that holding could mean.

In other words, they are trying to overrule the Supreme Court and say: Well, if you gave us this much, give us more. And a whole host of the cases you flipped out in your introduction, thus come from panels of just complete right wing ideological Trump appointees in almost every case, who take a decision by the Supreme Court, and instead of saying, let’s wait for this to percolate up through the system — usually that takes five or six years, we’ll have a district court, then we’ll have a conflict between two circuits — it used to take years, now we just have a district court, a lower court in the federal system, upheld by the Fifth Circuit, which is the appeals court that includes Texas, and that court just says: Hey, we don’t care what the Supreme Court said, we’re going to push it further, and we’re gonna do that, because we believe we’ve got five votes on the Court.

So, that’s the moment we’re in now, and I cannot say strongly enough how dangerous that is. When the Court is not deciding the law, the Court is being jammed by either states below or courts below to do something. That is not how this works. That is not how this works at all, and so some of the examples you gave in your opening of what this term looks like has to do with, for instance, the Fifth Circuit and a case that was sort of heard last week, simply deciding that the entire CFPB [Consumer Financial Protection Bureau] — that’s the federal agency that was supposed to regulate payday lenders that threw us into a housing crisis and financial crisis — the whole thing is unconstitutional. And then they are sort of in a game of chicken with the High Court, where the High Court has to either blink, or say: Okay, I guess the whole CFPB is unconstitutional; under by the way, just an insane theory.

The mifepristone case that you mentioned at the beginning in a single trial court judge who took it upon himself to say that the FDA approval of mifepristone, one of the safest drugs — safer than many, many household drugs — that the entire FDA approval is impermissible and nobody can get mifepristone. Now, that was slightly cabined by the Fifth Circuit, but the decision was still insane, and in no way flowed from anything that happened in Dobbs. That, also, is being jammed up to the Court in the hopes that you can find five justices who are going to say: You know what, we were willing to do it in Dobbs. And now we’re going to take one of the two abortion medications and either take it off the market altogether, or regulate it as though it was regulated many years ago, even though sciences we don’t have to.

So, there’s case after case after case, and we had that last year, by the way, that happened in several cases. where the courts below took it upon themselves to force an issue. And the reason I think you’re asking about the Fifth Circuit, and the reason this pattern is really interesting is that in some of the cases last year, where the Supreme Court blinked where the Supreme Court wasn’t willing to go, as far as a court below was pushing was then coded as a win for liberals or a draw.

The reason this framing is really important for listeners to understand is that if a lower court says something insane, and then the Supreme Court, in a handful of cases says: Okay, we’re still going to strike down the Biden loan forgiveness plan, we’re still going to do away with the Clean Water Act, we’re still getting rid of affirmative action, but in this one case, we’re going to say the courts went too far, that doesn’t mean it was a moderate term. That means that the court accepted a whole bunch of crazy cases and then split the difference.

If you don’t lose in a crazy case the court should not have heard in the first instance, all I can say is not getting punched in the face is not a win. To have it coded as a win, or to have it coded as well, Brett Kavanaugh or Amy Coney Barrett are real moderates, because they did the insane thing four times, but they didn’t do it twice, is how we fall into the trap we were talking about before, which is believing that the court is a really moderate staying gravitas laden institution.

And this was a real lesson of last term, and it’s carrying over into this term. All of these questions that you opened with about the legitimacy of the court and the approval numbers and how people are thinking about the court blend seamlessly into what happens when the court backs down on the crazy cases. They did that a whole bunch last year, often spanking the Fifth Circuit, and saying too far too fast, not doing it.

That’s another thing we’re already seeing this term in the CFPB case last week, where the effort was made to say: Oh, the entire agency is unconstitutional because of a detail of how its funded. The court, you could see from oral argument, there was no takers, almost no takers, for saying we’re gonna say the entire institution has to be dismantled. In a weird sense, I guess what I would say is the Fifth Circuit is kind of the analog to the Koch brothers or Leonard Leo or Harlan Crow, it’s like YOLO, pedal to the metal, we want it all and we want it now.

And the Court, which might have been inclined to grant a lot of that, but does not really like the appearance of having courts below boss it around, more and more is finding itself in this place, again, because we know the Koch brothers bought this outcome. We know that Harlan Crow purchased this outcome. It’s finding itself in the position where it’s modulating some of the crazy, because as you said, the legitimacy issue percolates beneath all of it.

Sam Goldman 21:57

That is a really helpful way of putting it, I think that there’s a sense of them having to make calculations that they didn’t before. I am not a gambler. [chuckles] I don’t like it. I’m terrible at it. I’m a terrible liar. But I think that there is a sense of where they want to throw their chips down and where they want to hold them. Just because in a given case, or even several cases, that they don’t align themselves with the most legally unhinged arguments, I think that there is a sense that I have that if something was of strategic importance to their overall aims that they would throw down on that.

That’s where the legitimacy thing comes to. If they lose their legitimacy, that is their game. It’s to do things in the name of: Well, we’re Supreme Court justices, you know, this is a sacred institution. So it makes sense, oddly, that they have to temper the movement, so to speak, including the movement that financially brought them to the positions that they’re in.

Dahlia Lithwick 23:03

Right, and I would add one other thing. if you stick with my analogy that there’s a split screen — there’s two Supreme Court movies that are screening at the same time in the IMAX in your brain — I think it’s really worth thinking about the fact that that modulation, in the doctrine that you’re describing: We’re not going to do the thing in the Indian Child Welfare Act — that was completely bonkers and never should have happened, but it got mashed onto the court — we’re going to vote for the tribes; We’re not going to do the completely crazy bonkers insane thing in section two of the Voting Rights Act.

Those decisions to modulate extremity in doctrine, in the second movie that has to do with ethics and the way the justices are comporting themselves how they’re talking, you’re seeing that same modulation. So just in the last few weeks alone, and this is important, Clarence Thomas filed an amendment to his disclosure form saying: Oopsie, forgot to disclose a couple of trips. That seems trivial because he didn’t disclose a whole lot of other stuff that is still problematic, but it’s a thing. Last week, Clarence Thomas agreed to recuse himself in a case that involves John Eastman, who is accused of being one of the legal architects of the January 6th legal strategy.

Folks may remember Clarence Thomas refused to recuse himself in a similar January 6th documents case, and, in fact, was the one lone dissenter when the court decided. He was like: Not only am I not conflicted, even though my wife was in communication with these people, I’m going to actually write a dissent as though I am a neutral party here. That didn’t happen this time. Last summer after Dobbs there was a horrific whisper campaign where the justices were all slamming each other and saying awful things about each other and talking about how much they hated the Chief Justice. That stopped this summer.

I know these seem like trivial modifications, like, you know, when you’re accepting half million dollar trips, I know that the idea that you actually recuse from one case might seem trivial, but it’s signals to me that the same court that is aware of public disapprobation and the doctrine is aware of public disapprobation in judicial conduct. This came up a lot last spring when the Senate Judiciary Committee asked Chief Justice Roberts to come testify before them about this ethics stuff and he just wrote them this kind of Dear John, suck it, independent judiciary and separation of powers note, which, I think was Jamelle Bouie, said on my show, was probably the most consequential document of the year last year — nobody paid any attention to it.

But the idea that the court was not only in the throes of this horrific ethics meltdown — that the public really cares about, by the way, across partisan lines — but, then, faced with the prospect of coming clean addressing the issue, walking across the street testifying, saying superduper sorry, we’re at least looking into it, instead, we got a like, talk to the hand. That was shocking. This year, what we have heard from several of the justices, in speeches this fall, was much more conciliatory.

That fact that they are pulling back from the madness of the term that gave us Dobbs, and Bruin and Coach Kennedy and the EPA, the fact that they’re pulling back from that kind of what Leah Lippmann calls the YOLO court — the you only live once court, and both doctrinally, and it seems to me in terms of conduct and behavior, and signaling that they are not monarchs, suggests, not that the court has become liberal since Dobbs, or even moderates since Dobbs, it means they’re not stupid since Dobbs. I guess I have to score that as a win.

Sam Goldman 26:34

Looking at the cases that are coming this term, some have been heard and most of them have not been, one of the main themes, it seems of this term, is restricting or even eliminating the function of government agencies. You spoke to one already. What are the cases that they’re deciding in regard to this topic and what’s on the line there?

Dahlia Lithwick 26:59

The two big ones are one that I mentioned already, which is the CFPB, the Consumer Financial Protection Bureau — that agency was as part of Dodd Frank in 2008, an attempt to create a legal accountability and responsibility for all of the horrible predatory behavior that targeted mostly vulnerable customers. The CFPB has been a stunning success. It has returned over $17 billion to vulnerable consumers, it has regulated the heck out of payday lenders, and it has been in every single way, thumbs up for how a federal agency can really make a difference.

So, of course, the banks and the payday lenders want to end it. The case, as I suggested was argued last week, which was the first week of the term, was an effort by a lower court to say: Oh, you know, you aren’t funded by way of annual appropriations, you’re funded by way of a different mechanism, which is a mechanism that lots of banking regulations require, therefore, the entire thing is unconstitutional, therefore, everything it has ever done or ever will do is unconstitutional.

The other case that is equally important has to do with this idea of Chevron deference. Chevron deference is a long standing notion that dates back to a 1984 case, that if you’re looking at a regulation that is somehow ambiguous, you defer to the agency’s own reading of its own regulations. And that’s obvious, right? You have a bunch of scientists who are deciding what the Clean Water Act means, or you have a bunch of judges, you pick the scientists, right. That’s how you err on the side of expertise and consistency and non political decision making.

Suddenly, in another case, we are seeing that being challenged, and the notion will be I guess, from now on that judges can substitute their reading of an ambiguous statute. So this is all of a piece with, as I said, two terms ago, when the EPA is Clean Air Act was kind of cabined by the Court. Last year, the Clean Water Act, severely rewritten by Justice Alito. What I want to say about this is, this is how government works. We have agencies full of experts that do their very best to enforce laws that Congress passes, that give us clean air and give us clean water and make sure that our food isn’t poison, and make sure that we are free of diseases like Polio.

That’s how government works in this century. And this long standing effort to rollback what’s known as the administrative state where all of these regulatory agencies all these ABC agencies that do the work of government is essentially just a big business, kind of Chamber of Commerce, strike at the heart of how government is done. If you end all those agencies, you’re free to pollute you’re free to exploit your workers, you’re free to do whatever you want. None of this is hard to understand, and you can put a name on it like Chevron deference and doing away with Chevron deference or you can put the name on it called the major questions doctrine, which is the same thing, which is just saying no entity can decide what its own rules mean, because Congress has to say it with such specificity that it assumes that knowledge of every situation that’s gonna come.

So anything you call it, if it has the effect of completely scuppering every federal regulatory agency, the big winners are the Koch brothers, the big winner is Harlan Crow, the big winners are polluters and payday lenders. Those are the cases, and this is a long standing effort. I think maybe the only other thing I’d say about this is that Chevron deference case is one of the few areas where Clarence Thomas was for Chevron deference, until he wasn’t. Suddenly, he — famously says he’s not evolving, his views don’t change, he is just a strict constructionist and originalist and whatever he believed in 1980, he believes today.

This is one of those areas, weirdly, having hung out a bunch of Koch brothers functions, where it became manifest that this is not what the oligarchs and the multibillionaires want that now all of a sudden he’s on the other side. I’m not suggesting, and I don’t think anyone has suggested, that they bought his votes, which in those cases, but I am suggesting that if you cultivate and hang out with and reward and give gifts to Supreme Court justices, it’s entirely possible that they may come round to your viewpoint on matters of whether we should have regulatory agencies.

There’s a whole host of these cases last term, the term before and this one, and what scares me also is they are animated frequently when you read the opinions by a sort of a sleazy jab at mindless government bureaucrats and soulless CDC workers, and the idiots at the EPA who are just pencil pushers. I really worry that the zeitgeist of all of government is bad, Grover Norquist, shrink it down to be able to drown it in the bathtub part, what makes me very anxious is that the court is preying on public lack of trust in, and uncertainty about what government is and why it does it. That language of kind of contempt for government agencies for science for facticity has started to bleed into the way they write about these agencies in ways that just strike me as both gross and also deeply damaging.

Sam Goldman 26:59

I think it’s really helpful how you already walked through — you answered my next question — what’s at stake here and what’s behind this push? A lot of folks, when you think about it, people do not see the role of government agencies as a vital political issue. Yet, destroying them is very close to the heart of the fascist movement.

Dahlia Lithwick 33:08

Elizabeth Warren came on Amicus last week to talk about the CFPB case. The point she made is, this contempt for how government works is just a complete, lazy, careless disregard for things that actually help people. For her, the CFPB is really an example of something that bolt by bolt met by that has helped cabin predatory lending and abuse of the mortgage system and big banks. The idea that that gets dismissed as like: I don’t even know what this agency does, but all government is bad; is anathema to people who work in government. If you work in government, you don’t talk that way.

Sam Goldman 33:52

If you look at Trump’s promises, if he were given another term, you see the death of the administrative state as central to this. There’s also it maintaining and restructuring into a tool of their aims, like the Department of Education, for example — they wouldn’t really get rid of it, they would turn it into something else. I think it’s really important for people to be thinking about, and if they don’t understand what a function is, to learn more about it instead of just think: Oh, it could just go away.

Earlier, I think in my opening, I mentioned women’s lives being at stake. There’s a case that will be heard, that will involve whether or not, basically, domestic abusers can have firearms to kill their wives that they have abused. What’s going on here? Can you tell us more about it?

Dahlia Lithwick 34:51

I really want to talk about this case, Sam, because I think sometimes when you do one of these curtain raisers and you talk about like voting rights, and then you talk about, like, the administrative state, it all feels incredibly inchoate; it’s hard to say: Why will this affect me? And this is a case that I think is really, really concrete, what the issue is. It goes to the exact thing we opened with when you asked me about the Fifth Circuit, which is where are baby horrible cases born? Baby horrible cases are born when you have the Fifth Circuit doing something that is way ahead of what the court authorized the last time around.

Just for context, the last time around was when in June, 2022, the Supreme Court decided a case called New York State Rifle and Pistol Association versus Bruen. That case massively expanded handgun rights. It struck down New York’s long standing handgun licensing scheme and it essentially said that there’s a new test from now on that any gun law has to be tested for its constitutionality under the Second Amendment by showing that the ban, whatever it is, is consistent with the historical tradition of regulating arms.

That means you have to find an analogue for the gun law, either at the founding or the time of the ratification of the 14th Amendment, when the Second Amendment was incorporated against the states. This is insane because it has forced judges around the country to become historians. They’re literally convening panels of historians to look through history and say, is there an analogue for this gun regulation? For instance, that says you can’t saw off the serial number on your weapon? And the answer is no, because guess what muskets didn’t have serial numbers.

This is what we now do. So Rahimi becomes a really horrifying case, because this is the case of a guy called Zackie Rahimi, who in 2019, was having an argument, as you noted, with his domestic partner, his girlfriend, the mother of his child, in which he knocks her to the ground, he drags her back into the car, he smashes her head on the dashboard and then tells her he’s gonna shoot her if she tells anyone about it. A Texas State Court, as one does, enters a domestic violence restraining order against him. As typically happens, that order says: You are a domestic abuser, you cannot possess a gun, And if you possess a gun from here on in, it’s a felony.

Unsurprisingly, Rahimi becomes a suspect in a whole bunch of shootings, surprise, surprise, he’s got a gun, and he’s charged with violating a federal law that says you cannot possess a firearm if you have been adjudicated to be a domestic abuser. He pleads guilty, and he is sentenced to go to jail. The Fifth Circuit Court of Appeal initially uphold this conviction because that’s the law. But once the Bruen decision comes down in 2022, they pull it back and they say: Hey, even though he violated this law that says you can’t have a gun if you have been adjudicated a domestic abuser, he still gets to have Second Amendment rights because, guess what, there’s no such thing as domestic abuse at the founding. Because, let’s be honest, your spouse or your wife, was chattel. In fact, you were allowed to beat her. It was a prerogative, it wasn’t just not the law. So this is the problem with this text in history insanity.

Now we have a case where the Supreme Court has agreed to hear a bananas decision from the Fifth Circuit that says, I guess every single law that protects domestic partners — and we know what the odds are, if you are in a violent relationship of being dead, if your partner has a gun, this is not a joke, people will die — and the Fifth Circuit is like: Well, I’m what can I do? Hold me to the text and history rule of Bruen. To be sure this is a really gross case, but we have had progressive judges around the country striking down, under the Bruen test, perfectly sane, normal, life affirming gun laws.

It’s shocking for the reasons you just flicked at, which is, this is a collision course between centuries of laws that permitted women to be abused and a few decades of laws that are finally put in place that tried to protect them, and a constitutional theory that would set us back to: Sorry ladies, sucks to be the victim of domestic abuse, but since there was no such thing at the founding, you’re out of luck. That’s where we are. It is so consequential for every gun law in the country, but it’s consequential, just to kind of end this where you started, because this is the Fifth Circuit not waiting around, not saying: Okay, we’re gonna let the Bruen rule mean what it means and figure it out and apply the test.

This is: Hey, we’re taking back a decision that we made because under Bruen This is not good law anymore, and we’re gonna let this guy go free. So I put this in the sort of line of cases where the court is getting jammed from a court below that is forcing its hand. I’m also put Putting it in the column of cases that this Court does not want to touch, because we have more mass shootings this year already on the books than the year before. But I also really think this puts to the lie the idea that democracy can work, because we know what the public thinks about sensible gun regulations. It is not a close issue, and this is the Court short circuiting the democratic process and saying: Oh, what we really mean is, if it wasn’t a law in the 18th century, it can never be the law.

That’s where we are. I just want to talk about it. Because I think if people care about their kids being shot at school, or about victims of horrific domestic abuse not being terrorized in their homes, then the answer doesn’t solely take you to: So get out and vote. Because people get out and vote, and these laws are enacted, and they’re wildly popular. If that can be short circuited by a court that says: Uh, all those laws are unconstitutional, because we’re using a test from 200 years ago; getting out and voting doesn’t do it.

And this is the last thing I want to say about Rahimi: It really appeals open this question of people keep saying as long as they vote in the next election, this stuff gets solved. It doesn’t get solved if the Supreme Court can do what it wants with impunity. So I wanna really make the case — and I think this is another one of those dots, we fail to connect at our peril — that what the Supreme Court is doing is not just subverting majority will and popular will — that’s bad. The Supreme Court is also a party to a long standing, whether its blessing voter suppression, blessing voter ID, whether it’s blessing Shelby County versus Holder and eviscerating the Voting Rights Act, the court isn’t just a sort of objective neutral witness to attempts to constrict democracy.

The court is a player, this conservative supermajority, in constricting democracy. When Justice Alito writes in the Dobbs decision: oh, ladies are not without political power. If you don’t like Dobbs, take it up at the voting booth in your Statehouse. If you are making it impossible to effectuate your will at the Statehouse or the voting booth, then that’s just a troll. That’s not even an empty promise. That’s a joke. I want folks who are mad and God bless, like the Youngs, because they’re really mad about gun violence; look at them in Tennessee. I want them to understand that if you think that just passing a law is gonna get you there, look at Rahimi. Because we’ve passed laws for decades to protect women from violent partners and if the Court strikes it down, passing another law doesn’t get us out of this.

Sam Goldman 42:35

Thank you so much for that. We’re gonna be paying close attention to how this unfolds and continue to be talking about it. The alarm that you are raising and more fundamentally where this could go and why this is going this direction is the most essential. I would not be doing my non paying job if I didn’t close out the conversation by asking you to, just at least briefly, talk about the Trump trials.

In the face of his mounting indictments, trials, he’s now escalated threats of violence against his “enemies”, whether they be Democratic Party leaders, judges, special investigators, General Milley, Black people. His campaign promise of vengeance is getting more overt and increasing in frequency and bloodlust, yet, he’s still the top front runner for the GOP by miles. He’s not banned or prevented from continuing his campaign and is backed up and defended by a thoroughly fascist GOP, and, yes, a legion of millions armed to the teeth. I just want to give you a moment, if there’s anything about these trials that you want people to be thinking about questioning, or that you’re wondering about.

Dahlia Lithwick 43:46

So you want to end on a happy note, is what you’re saying. Good, all right. [laughs] I think that this is another embodiment of that Mark Elias point, which is the lawlessness is the point. The performative flouting of a judicial gag order, the performative threats against the court staff of a judge in New York, this is all a way of saying the law doesn’t apply to me. It goes to your initial point about we get so caught up in the horse race, we lose the stakes.

The horse race is Judge Chutkan, will she won’t she? Jack Smith, will he won’t he? What is going to happen? What is this ruling in the Mar-a-Lago case gonna mean? And what you are lifting up, and it’s so important, is the stakes. This is the media critic Jay Rosen’s formulation, we have to look at the stakes. What are the stakes of somebody who is lawless by design, with impunity, and who uses the judicial system to continue his performative television, Apprentice persona of being all powerful?

That’s the question, and I think the answer, in a sense, I think a kind of hopeful thing, which is: If we watch this as theater, if we watch this the way we watched the 2016 campaign, and are just like: That was an interesting turn. Sure loved how you know Alina Haba looked in that dress… we can go down again. If we watch it as what we’ve seen in Hungary, what we’ve seen in Poland, what we are seeing around the world, in authoritarian governments, which is: The law is not immutable.

The law is not a cathedral. It is an interlocking set of norms and values that does not self reinforce, and that once threatened can come crumbling down. We talked about this in the context of voting. If we don’t make it our mission, to say: It is on me to protect the incredibly fragile rule of law, because we’ve seen what happens in countries where it’s not protected, then it’s just going to be the backdrop for Apprentice season 14, and I don’t think that we’re there.

I don’t know how to answer for GOP front runner, that’s just not my beat, but I think the public watching, day in and day out, somebody who really thinks that the law is for lesser people, and that under each and every formulation, he is above the law, because he makes the law, and that he can, as you said, from the get go, weaponize the entire Justice Department to go after his enemies, weaponize the financial capitalist system in New York that let him get away with it for so long, he will. But it’s not his choice. It’s not his choice, it’s ours.

So what I hope is that instead of watching these trials as a kind of rock ’em, sock ’em, Three Stooges, did you hear what he said next? or did you see what he put on true social? to see it as, in some sense, a referendum on whether the rule of law and accountability and fact and truth and neutral systems of testing truth are gonna survive? That’s it. It’s really rubber hits the road time. I think that’s not for Donald Trump to decide, I think it’s for us to decide.

Sam Goldman 47:03

I want to thank you so much for taking the time to talk with us, to share your incredible insights perspective, and of course, expertise. We are going to link to your podcast, your Slate page. You can check the show notes and also find, but I forgot to mention, a link to Dahlia’s book, Lady Justice: Women, the Law and the Battle to Save America. All of that is in the shownotes. Is there anything else you want to direct people to?

Dahlia Lithwick 47:33

I just want to say, we’re in this really challenging moment around the world, where it seems like authoritarianism is winning in a whole bunch of different contexts. As you said up top, I think people are waking up to what that looks like. The one thing we can control is this is not something that’s gonna get resolved in the 2024 election. It’s gonna get resolved in every school board, in every election board fight, in every attorney general race, every supreme court race.

This is both existential and actually fixable. It is both those things, and I think, better than sleepwalking through that process, saying what happened? which is kind of what happened after Dobbs, the fact that people are tuning in, they’re active, they’re going to their state legislatures, they’re completely rejecting and repudiating every single ballot initiative that wants to take away abortion rights, I think this could be a cool moment. I often say this, I’ve probably said it on your show before, but I’ll say it again: The alternative, which is hopelessness and despair and nihilism and giving up, and just buying a lot of stuff at Target, is Steve Bannon wins, when we do that. I just decline to let Steve Bannon win.

Sam Goldman 48:45

Agreed. Thanks, Dahlia.

Dahlia Lithwick 48:46

Thank you so much for having me.

Sam Goldman 48:48

When you’re faced with fascists who outright suppress the votes of those they deem subhuman, deny election results, attempt to violently overturn any election they don’t win, when judges installed for life will overturn any law that doesn’t fit into their cruel future, it’s nothing short of delusional to say that voting alone is the solution. But the question poses and reposes itself. Is the solution then to reinforce the norms of the system? To focus on holding up the guardrails that the fascists are lighting on fire? Or is it to lay out before everyone the real stakes of what’s going on, and to transform the masses of decent people living in this country, from passive spectators into people willing to fight for a future worth living in?

Thanks for listening to Refuse Fascism. Over the past 175 shows we are proud to have established with you a strong network of people who care enough about the world to confront the fascist threat head on at this epic juncture. I want to take a moment to ask you to take one step out and grow up the base of listeners. Share, discuss and contribute to this fight to Refuse Fascism. So how do you do that? Well, rate and review on Apple podcast, or your listening platform of choice. Share the show with people you care about and who you know care about the world. Comment on social media.

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A big, big thanks to Richie Marini, Lina Thorne, and Mark Tinkleman for helping produce this episode and the past 174! Thanks to incredible volunteers, we have transcripts available for each show, so be sure to visit RefuseFascism.org and sign up to get them in your inbox. Until next Sunday, in the name of humanity, we refuse to accept a fascist America!