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In front of the supreme court building, blue-tinted supreme court judges with their faces scratched out in red. (Photo edited by Lissa Deonarain)
During his first term, Trump stacked the Supreme Court with hard right judges creating a 6-3 split that led to the overturning of Roe v. Wade, a stunning ruling in which a human right which was previously granted by law was taken away from the public. This time Trump faces even less resistance and could remake the Supreme Court once again.
Elie Mystal, justice correspondent and columnist for The Nation magazine, joins us to talk about the Supreme Court: what the democrats could have done under Biden to fix the third branch of government so that we wouldn’t now be in such a politically vulnerable position; but also what we can expect in terms of possible new Supreme Court nominations and what they could mean for our remaining rights.
Featuring: Music:
Making Contact Team
TRANSCRIPT
Making Contact Button.: Making, making, making contact. Making contact.
Salima Hamirani: I’m Salima Hamirani and welcome to making contact.
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Salima Hamirani: President Donald Trump and Elon Musk together have already remade much of the US government. But unfortunately there’s probably more coming. I know I’m already feeling overwhelmed
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Salima Hamirani: But there is one area of the government that he hasn’t turned his eye on quite yet. The supreme court. And it’s likely that Trump will deal with it the way he’s dealt with everything else – to stack it full of his acolytes.
Confirmation fights for the supreme court were a huge part of Trump’s first term. By the time he left office in 2021, he had stacked the court with a 6-3 split that put right wing judges in power of the highest court of the nation. What does the return of Trump mean for the future of the Supreme Court and for the United States?
Joining me to talk about the supreme court under Trump is Elie Mystal. Elie Mystal is the justice correspondent and columnist for The Nation magazine and host of their legal podcast, “Contempt of Court.” He is the author of the New York Times best-seller “Allow Me to Retort: A Black Guy’s Guide to the Constitution”
Salima Hamirani: So hi Elie, welcome to today’s show, Elie. I’m sorry to have you on to talk about such a, uh, disturbing topic.
Elie Mystal: The only thing to talk about right now is disturbing topics.
Salima Hamirani: Yeah I get the feeling that the news will be full of disturbing topics for the next four years. Okay, so to start, Elie, yes Trump appointed some extremely conservative judges, but the Democrats! You know, they could have done something in the last few years to help. What is it that they could have done?
Elie Mystal: It’s not just that the Republicans appointed some conservative justices, they stacked the court with extremist Republicans using, uh, bad faith tactics, like the Merrick Garland appointment, the fact that he wasn’t even able to get a meeting with Republicans, much less an up or down vote. Was a constitutional crisis in real time while it was happening, right?
Salima Hamirani: OK, before we dive deeper, let’s talk about Merrick Garland. Back in 2016, after Justice Scalia passed away, there was a vacant seat on the Supreme Court—a seat that had been held by a conservative figure. At that time, Barack Obama was President, and he nominated Merrick Garland for the position. Now, Garland wasn’t some left-wing radical; he was seen as a centrist, a judge even some Republicans liked. But then, Mitch McConnell, who was leading the Republican-controlled Senate, stepped in with a game-changing political maneuver.
He proclaimed that Obama shouldn’t be allowed to make a Supreme Court nomination, not during an election year—so they basically ignored Garland’s nomination completely, as if that Supreme Court seat wasn’t even empty. This move? Pretty much unprecedented in U.S. history.
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Elie Mystal: If Republicans had. followed constitutional procedure and given that man an up or down vote, so many things would be different right now, so I never want to let republicans off the hook for their dirty tricks to stack the court, 6-3 in favor of extremist conservative jurists. That said, for the Democrats to show up in 2021 with control of the White House, the Senate and the House of Representatives and do nothing to reverse the bad faith, constitutionally questionable decisions of previous Republican administrations.
That’s political malpractice. That’s legal malpractice. The number one job of the Biden administration was to fix the third branch of government so they couldn’t do what they have in fact done.
So what could the Democrats have done in real time? They could have packed the court. That is an idea that has gotten a lot more traction, a lot more popularity over the past four years. I was saying this in 2020, going into the election, that if you don’t pack the court, if you don’t add a number of liberal justices to counteract the extremist conservatives already on the court, all would be lost.
Salima Hamirani: And Elie, what does that mean? When people argue that the Democrats should have packed the court, which is an argument that we hear a lot these days, what do they mean?
Elie Mystal: So the number of Supreme Court justices is not set by the Constitution. We started off with six, Adams brought it down to five, Jefferson put it back to six and then Jefferson put it to seven. Fast forward, Andrew Jackson put it to nine, Abraham Lincoln put it to 10.
Then after Andrew Johnson, they rolled it back to nine and it’s been at nine since the 1869 Judiciary Act, which is a statute, not a constitutional principle. That number can be changed with a simple act of Congress passed in the House, passed by the Senate, signed by the president. You can have however many Supreme Court justices you want.
Salima Hamirani: And most current arguments in favor of packing the court say that we should have 13 supreme court justices. why? Because it mirrors the 13 circuit courts in the US.
Elie Mystal: Sounds reasonable to most people. If we have 13 circuit courts, we should have 13 Supreme Court justices, right? That would have allowed Biden and the Democrats to add four justices to the Supreme Court. I’ve always thought that number was too small. My reform that I’ve been pushing since at least 2018, is to add 20 justices to the Supreme court.
Salima Hamirani: Whoa, wait, 20 justices?
Elie Mystal: Yeah. See, whenever I say that people are just like, wow, that’s a lot! The ninth circuit court of appeals, which covers California, Washington, Oregon, Hawaii, Arizona, a bunch of the other Western states. The ninth circuit court of appeals has 29 judges on it. If you add 20 justices, that allows you to do a lot of reform to the Supreme Court beyond the partisan infighting.
With a much larger court, what we do on the circuit courts, like in California for the Ninth Circuit, the judges hear cases in three judge panels. It’s very rare that the whole circuit will hear a case sitting together, all 29 of them will rule. Usually, it’s just a three judge panel.
If you have three judge panels, that means you don’t know which judges you’re gonna get when you file your case. In a functional democracy, it’s kind of important, right? You shouldn’t get to pick your judges, if you had a 29 person court, you wouldn’t know if your three judge panel was going to be two to one Republican or two to one Democrat, or maybe 3-0, one party or another, because you wouldn’t know, Your legal argument has to be much more center mass mainstream than the extremist (bleep) that the Republicans do now.
So that’s one obvious reform benefit from adding more judges.
Salima Hamirani: But maybe more importantly, adding more judges to the bench would make it really tough for any single party or extremist viewpoint to take over the entire court – which is clearly a huge issue at the moment.
Elie Mystal: If you add 20 judges, The power of the Supreme Court remains the same, but the power of each individual judge goes way down, you’re one of 29 instead of just being one of nine.That means when you die or retire, that doesn’t cause a constitutional crisis. It doesn’t cause the law to change wildly one way or the other. Each death of an 80 year old justice is not an inflection point in American politics, which is how it should be. So more judges decreases the power and importance of any one particular Supreme Court justice.
Four is more popular and four would be a brute force partisan maneuver. But there are a lot of benefits to actually going bigger. When it comes to the Supreme Court.
Salima Hamirani: Okay, but we’re not just talking about stacking the courts, because there is another big problem with the Supreme Court that the Democrats have remained very quiet about, and that’s the pretty serious accusation of corruption
Elie Mystal: Yeah.
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Salima Hamirani: You know, judges are taking money and gifts, and in another country, they would have been stripped of all decision making power, I mean, because it is the highest court in the entire country.
Elie Mystal: Right. Corrupt judges! In a functional democracy, people take that seriously. In our democracy, not so much. The obvious fix to the rampant corruption exposed by ProPublica, and others, about the current crop of Supreme court justices is to apply an ethics bill to the Supreme court. The Supreme court is the only court in the country that operates without a statutory ethics bill. If you go to traffic court in Peoria, Illinois, the judge there is under a statutory code of ethics. Not so if you go in front of the Supreme court of the United States. That’s bad. That is a bill that could be passed through Congress and signed by the president to impose real statutory ethics rules. And most importantly, real statutory ethics penalties for violating those rules. The Democrats didn’t pass such a bill.
Now, the Supreme Court argues that Congress cannot impose an ethics requirement on the Supreme Court because of the separation of powers, that imposing penalties on Supreme Court justices would violate the constitutional separation of powers. I think that’s a bad legal argument, but in our ridiculous system, the Supreme Court claims to have the final say on what is constitutional or not. So there is some question about whether the Supreme Court would even follow an ethics bill if Congress passed one.
But here’s the ace in the hole. Congress controls the budget. There’s no constitutional question about that. If I’m the Democrats in 2022 and I still have control of both chambers of Congress, the thing that I am doing is cutting their funding. You cut the budget of the Supreme Court until the Supreme Court agrees to play ball with actual ethics reforms.
The constitution says there shall be a Supreme Court. It doesn’t say much else. Doesn’t say they get a nice fancy building at First Street in Washington DC. Taxpayers paid for that. Congress authorized that. That building can be taken away. Congress has the budgetary power over the Supreme Court and the Supreme Court won’t abide by basic ethical standards with real punishments for violations. Congress should cut their funding, but Democrats didn’t want to do that.
Salima Hamirani: And I mean, I guess, just to drive this home, currently, Elie, it is not illegal for the Supreme Court Justices to take bribes.
Elie Mystal: Nope
Salima Hamirani: And then they can still make rulings, I mean, if I took bribes as a journalist, I’d immediately lose my job. And I’m not deciding on the fundamental human rights of people in the United States, for example
Elie Mystal: The Supreme Court will say, oh, but we of course don’t take bribes, but if they did, there’s nobody who can stop them. There’s no constitutional means or statutory means to punish a Supreme Court justice for taking bribes. So that’s, to me, that’s the real rub of it, right?
And for the Supreme Court, there’s no way to punish them. The only way to remove the Supreme Court justice under the Constitution is through the constitutional process of impeachment. And impeachment of the Supreme Court justice works just like the impeachment of the president has to be impeached and the House, the trial is in the Senate and you need a supermajority in the Senate to remove a federal judge. And it’s happened. I think. twice in history. Like It doesn’t happen very often that you remove any federal judge, much less a Supreme Court judge. We could change that by statute.
Salima Hamirani: Okay. And so with the court as it stands today, Trump, you know, has gotten busy signing executive order after executive order, many of which seem like they’re illegal or unconstitutional Are you worried about how the Supreme Court may help him pass these laws, even if they are unconstitutional? I mean, I guess the question is, can we rely on the courts right now?
Elie Mystal: Uh, it depends. Um, Here’s what I would say at 30, 000 feet about the Supreme Court. The current Republican Supreme Court wants to do everything in its power to help Trump succeed as long as it doesn’t make them look bad. They go out of their way to pretend that there’s some constitutional, legal, statutory, presidential value in them. So they can uphold what Trump is doing without spitting in the face of everything that’s come before. Now, there are some executive orders that Trump has decreed that are so riseable that I don’t know that the Supreme Court will find a way around it.
Birthright citizenship, for instance, is such an obvious… What Trump is trying to do with that is rewrite the 14th amendment via executive order. That’s so beyond the pale that I don’t know if the Supreme Court will be able to make that one work. But here’s the thing that I want people to focus on, right?
One, Chief Justice John Roberts has a formula for helping Trump and we saw that in Trump 1.0 his first term. We saw that with the Muslim ban. Trump will come to the Supreme court with something ridiculous, beyond the pale out of pocket executive order. And the Supreme court will say, “Well, no, that one’s not good, but why don’t you go back and work on it again, Mr. President and come back to us.” And they will give him the roadmap of how to fix it so that they can approve the executive order. And that’s what they did with the Muslim ban. The Muslim ban that was affirmed in Trump V Hawaii was the third Muslim ban, right? And so that’s Roberts’s way of getting Trump off the hook time and time again It’s to let him try and try until he gets it right.
The second way they will rubber stamp the Trump administration is that we have to remember for every one or two executive orders they knock down, they’re going to be 10 or 15 that they just don’t even take a case on. Right. And so people will get really focused. on the one or two that they stop, but there’s going to be all this stuff in the sewage that just passes through without Supreme court comment. Right. And so that’s their other way of helping Trump. They fundamentally are going to legitimize 80, 90 percent of what he does have a few big fights on a few big things. And even in those fights, they’re going to be like, well, actually you just need to try again.
Salima Hamirani: And the supreme court, even if it wasn’t entirely under Trump’s bidding, can’t enforce any laws on its own. That’s something to remember about the problem with checks and balances right now at the federal level. The idea of checks and balances – as this highly lauded block against authoritarianism only works if well,…. the party of authoritarianism hasn’t taken over the government. I was really taken aback watching Elon Musk step into the social security offices with just a few weak assurances about security. It’s astounding that a private citizen could hold such power. And it’s made me think a lot about the so-called uniqueness of American institutions. This situation? It’s not supposed to happen. But what if our institutions aren’t as unique as we believe? Stay tuned as we delve into the concept of American exceptionalism, right after this break.
Lucy Kang: I’m jumping in to remind you that you are listening to Making Contact. If you like today’s show and want more information, or if you’d like to leave us a comment, visit us at our new website, www.focmedia.org. There you can access today’s show and all of our prior episodes. Okay, now back to the show.
Salima Hamirani:Welcome back to Making Contact, and today we’re talk about the supreme court under trump: what’s already happened with Trump’s prior appointments and what we can expect under the second administration. Joining us is Elie Mystal, the justice correspondent and columnist for The Nation magazine and host of their legal podcast, “Contempt of Court.” He is the author of the New York Times best-seller “Allow Me to Retort: A Black Guy’s Guide to the Constitution.”
Salima Hamirani: Elie, you know, there’s a very strong mythology in the United States about this idea of American exceptionalism, that we have a very strong system of checks and balances, that our institutions are especially robust and dependable, but I think we’re seeing under Trump that the idea of American exceptionalism is maybe an illusion,
Elie Mystal: Oh yeah, this is the problem with the institutional argument though. I’ve never been an institutionalist. I’ve never drunk the Kool Aid on the exceptionalism of American institutions. Part of that is because I’m black and I know exactly how weak American institutions are in the face of inhumanity and genocide. The institutions only work if there are… good people on both sides? What if one side isn’t very good? And that absolutely includes the Supreme Court, which has been ceded for a generation. This didn’t just start with Trump, Republicans have been seeding the Supreme Court with extremists for at least the past 50 years. This is the time of consequences, of allowing those legal arsonists in nice clothes to get control of the third branch of government. Republicans have been on this game for 40, 50 years, and Democrats have been on the game of like, “Well, we just need good, strong institutional justices,” not understanding that there was a whole revolution happening right under their noses, orchestrated by Republicans, orchestrated by the Federalist Society, to turn the Supreme Court into what it has now become – which is an institution wholly incapable of holding Donald Trump and the executive accountable, for anything.
Salima Hamirani: Exactly and so that inability to hold trump accountable, is what has me worried heading into the next four years. Because not only is the Supreme Court already stacked to the right and already supportive of Trump, but he may this term appoint even more right wing radical judges. Correct?
Elie Mystal: Right. So Donald Trump could be in position to be the first president since Franklin Delano Roosevelt to appoint a majority of the Supreme Court justices. Roosevelt needed four terms to pull that off. We are looking not just at a Republican majority, not just at an extremist conservative majority, but at a literal Trump majority, if two, Supreme Court justices. Retire or pass away, over the next four years.
Salima Hamirani: To be clear, the first replacements would probably be the older conservative judges. which would leave the court with much younger versions of the old guard extremists.
Elie Mystal: Samuel Alito is the second oldest justice on the Supreme Court. He is 74. He is very likely to retire in the next four years. Alito, for those who don’t know, is the guy who wrote the Dobbs decision stripping away the constitutional right to abortion, the first time in American history that a right once granted has been taken away. Alito is partisan to his core. Alito is a Republican first… Well, he’s probably like a Republican first, a Phillies fan second, and a human third. He knows how old he is. He knows how much it would help Republicans to be able to replace him with a person 30 years younger than him.
The other person that needs to go for Trump to be able to appoint a majority of the Supreme Court, is most likely Clarence Thomas. He’s the oldest current Supreme Court justice. He is 76. The thing about Thomas though, is that Thomas loves his job. He loves taking away rights from black people and women. It’s like what, gets him up in the morning, right? He likes his job. He’s making a lot of money on the side. And there is something else he is going for. If Thomas makes it to 2028, he will become the longest serving Supreme Court justice in history. That’s a mark. That’s a legacy. That’s a record, right? And it is believed that Thomas is very interested in breaking that record, right? However, there will be a lot of pressure on Thomas to retire. We don’t know if he will be healthy for the next 4 years as well.
And if those two people leave or get raptured Trump will be able to appoint one or two new Supreme court justices who will both be under 55, probably under 50, who can, make that current 6-0 majority the Republicans enjoy. Relatively permanent, right? Certainly permanent for the rest of my natural life.
Salima Hamirani: Yeah, I mean, probably for the rest of my natural life too, which is sort of terrifying. Um, so, let’s talk about a few of the possible replacements. For our listeners, you can head over to our website. Uh, focmedia.org to read Elie Mistel’s article, which lists out a lot more possible contenders and their stellar resumes. But Elie, um, can you talk to me about the ones that you’re most worried about?
Elie Mystal: Okay, I’ll do those two. The person most likely is a man named Andy Oldman. He’s on the fifth circuit court of appeals right now that meets out of Louisiana. He’s from Texas though. And he’s basically Greg Abbott’s, was Greg Abbott’s, the governor of Texas, right hand legal man.
He organized the Texas resistance to the DACA program under Obama, the Deferred Action for Childhood Arrivals. He doesn’t really believe that law should get in the way of his culture wars. Even when he writes, like his writings will be like “culture work, culture work, culture war, amateur history, Oh, here’s a statute in the footnote. We’re done.” He’s a former Alito clerk, which means Alito could be replaced by one of his protégés. I think he is the most likely person to be picked should Alito retire.
The most dangerous person is a man named James Ho, also currently on the fifth circuit court of appeals. James Ho is, he appears to really not understand the concept of full and equal rights for women. His reason for why, for instance, dentists should have standing to sue the makers of Mifepristone, one of the two abortion pills, was that dentists are harmed when pregnant women terminate their pregnancies because they like looking at pregnant women.
Salima Hamirani: oh, so he’s that guy
Elie Mystal: he was that guy, the one who basically said that women were manatees or something that must be observed in the wild, like Shamu right? So he’s the most dangerous. He’s a former Clarence Thomas clerk who when he got his appointment to the Fifth Circuit was sworn in by Clarence Thomas in Harlan Crowe’s library. So, he’s the next guy on Crowe’s payroll, right?
Salima Hamirani: Harlan crow, by the way, is a huge landowner. His father was “the biggest landlord in the United States.” Harlan Crow is also a major donor to conservative causes and the Republican party. But, the reason he’s been in the news a lot is because of a series of investigations by Pro Publica which unearthed his decades long relationship with Clarence Thomas.
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Salima Hamirani: That relationship included multiple gifts and vacations which were undisclosed. Pro publica argued that Harlan Crow is essentially “subsidizing the lifestyle of Thomas and his wife”
Elie Mystal: The other name I’ll just throw out there is Aileen Cannon. Who many people know from her ability to get Trump out of jail, with her embarrassing handling of the documents case in Florida. Cannon does not have the qualifications to be a Supreme court justice. She doesn’t have the brightness we usually associate with Supreme Court justices. But she is loyal to Trump. And we know that Trump likes people whose entire careers are based on helping Trump. Right. We know that he likes mediocrities who couldn’t get a job other than licking Trump’s boots. Right. So I think. In this world that makes, that’s her Supreme court qualification. And quite frankly, of the names that I’ve said, I’ll take her, I would rather have this mediocre person who has completely debased herself to Trump. I would rather have that than the kind of extremist, riseable, sexism and misogyny that comes out of James Ho, or the truly kind of antebellum white supremacy that comes out of Andy Oldman.
Salima Hamirani: Elie, so we’re reaching the end of today’s show, and I feel a little bit of personal responsibility not to leave our listeners in complete and utter despair, because we’re getting a lot of despair in the news these days, and I mean, I feel like I just spent the last 30 minutes saying, sorry, but all of our institutions have failed, they’ve crumbled. Is there anything we can do?
Elie Mystal: Yeah, that’s, you’re telling your audience the exact right thing. The institutions are broken and they’re not coming back. We’re going to have to do it ourselves. Nobody’s coming. We have to fight our way out of this ourselves. And I keep coming back to the fact that Trump won a democratic election for the first time. We did this to ourselves and we are the only ones who can undo it.
We have to fight, we have to protest, we have to divest from things. We have to boycott things. Every act of resistance is important. And Hopefully we’ll be allowed to have elections in the future where we can undo what we’ve done.
Salima Hamirani: Thank you Elie. That was Elie Mystal, he is the justice correspondent and columnist for The Nation magazine and host of their legal podcast, “Contempt of Court.”. And that does it for today’s show. If you’d like more information about Elie Mystal or you’d like to read his article please visit us online at www.focmedia.org. I’m Salima Hamirani. Thanks for listening to Making Contact.
