A conversation with Dahlia Lithwick, who has reported on, written about, and devoted much of her life to understanding the United States Supreme Court and the justice system more generally. Dahlia is deeply knowledgeable about the culture of the court and the character of its rulings, and she's deeply attuned to the relationship between justice and democracy. And she's quick and funny, too, which seems important when you're talking about something as heavy as justice—especially because justice is so often invoked, demanded, and yearned for.
Show Notes
MSNBC analyst and a senior legal correspondent at Slate, Dahlia Lithwick is one of the nation’s foremost legal commentators. She is the host of Amicus, Slate’s award-winning weekly podcast about the law and the Supreme Court, and author of the instant New York Times bestseller Lady Justice: Women, the Law, and the Battle to Save America.
Lithwick is the recipient of a 2013 National Magazine Award for her columns on the Affordable Care Act. She has been twice awarded an Online Journalism Award for her legal commentary and was inducted into the American Academy of Arts and Sciences. In 2018, Lithwick received the American Constitution Society’s Progressive Champion Award and the Hillman Prize for Opinion and Analysis. By 2021, she was named an honoree of the Women’s Media Center’s Exceptional Journalism Awards. In that same year, she was a recipient of a Gracie Award for Amicus Presents: The Class of RBG, which featured the last in-person audio interview with Ruth Bader Ginsburg.
Lithwick has held visiting faculty positions at the University of Georgia Law School, the University of Virginia School of Law, and the Hebrew University Law School in Jerusalem. She was the first online journalist invited to be on the Reporters Committee for the Freedom of the Press. She has testified before Congress about access to justice in the era of the Roberts Court and how MeToo impacts federal judicial law clerks. She has appeared on CNN, ABC, The Colbert Report, and The Daily Show; she is also a frequent guest on The Rachel Maddow Show. Lithwick co-authored Me Versus Everybody with Brandt Goldstein and I Will Sing Life with Larry Berger, and her work has been featured in numerous anthologies. Her work has appeared in The New York Times, Harper’s, The New Yorker, The Washington Post, The New Republic, and Commentary, among other places.
For more information about Dahlia Lithwick, please visit her on Facebook, Instagram, Twitter, and at dahlialithwick.com.
Transcript
Adam Davis: Hello and welcome to The Detour from Oregon Humanities. Let's say, for a moment, that you were looking around, hoping to find justice. Where would you go to find it? Some people, ancient Greek philosophical people, for example, might look to find justice in one person's soul. Or if that soul happens to be too hard to see, they might look for it in an imaginary city.
Other people might look to find justice in holy books or in the gods those books revolve around. And some of us might try to find justice in the decisions and conduct of people who are actually called justices. That is, we might try to find justice in the people who sit on the highest court of our nation's justice system.
How could it not make sense to look there? To look to the Supreme Court for justice, both to understand it and to see it in action. Today's episode of The Detour brings you a conversation with Dahlia Lithwick, who has reported on, written about, and devoted much of her life to understanding the United States Supreme Court and the justice system more generally. Dahlia is deeply knowledgeable about the culture of the court and the character of its rulings, and she's deeply attuned to the relationship between justice and democracy. She's quick and funny, too, which seems important when you're talking about something as heavy as justice. Especially because justice is so often invoked, demanded, and yearned for. We talked with Dahlia at the Alberta Rose Theater in Northeast Portland in September of 2024. To kick off Oregon Humanities, Consider This series on the theme, The People and the Public. As you'll hear, Dahlia has a lot to say about the court's relationship with the public, and about the public's relationship with the court.
She also has a lot to say about the relationship between how the court operates, and how we do or don't live toward the democracy that we hope for. Here's Dahlia now recounting a powerful experience of injustice that she had as a child.
Dahlia Lithwick: My mother says that she knew I was going to be a lawyer when I was about 10 years old and she gave me a clothing budget and she said, ‘This is the amount of money you can spend on your clothes this year and you can decide how to do it.’
‘But..’
‘This is how it’s gonna go.’
I was enraged. I was just like, ‘I have two brothers. They can wear crappy clothes. I have to wear good clothes. I'm a girl. Clothes are important. Everybody is gonna…’ I created this manifesto, pages of furious… urging her to rethink. I thought I just deserved a better future: all the clothes, all the time. No. It was awful because I was a monster. And to this day, my mother is like, ‘You are scary. Like, you are a scary, scary little girl.’
Adam Davis: So, I mean, I just want to say it, it's interesting that thinking of an instance of injustice and you're thinking about anger, rage and being scary.
That's interesting for starters.
Dahlia Lithwick: Yeah.
Adam Davis: And it makes me want to ask the other side of that. Can you think of a time as a kid when you thought, ‘Ah, this is justice. I know what this feels like.’
Dahlia Lithwick: Wow, these are really hard. Are they going to get harder? It's just I’m gonna….
Adam Davis: It's just going up…
Dahlia Lithwick: Cause I am going to order a drink.
Adam Davis: Well, there are plenty of people who would bring you a drink if you want one. So for real. But no, they won't get a little harder. But justice….
Dahlia Lithwick: Um, let me think. (Pause) Justice as a child. I think this is just going to be incredibly unfair, but my big brother was kind of a thug, and he just was extremely…. He just called me names. I'm just gonna tell you. He used to call me “Doglia” for a really long time. Right? Mean. And see these are the things that drive you to law school.
On the very rare times when my parents were like, yeah, ‘That really, really is not just normal sibling behavior. That is beyond sibling behavior’ and would discipline him. I think I would feel there's people in the sky who are imposing justice in a way that makes the world make sense. And I think…I know this isn't your question, but I think about the way we have gone wrong in this country.
My answers kind of dovetail with both of those things. I think just with respect to the clothing allowance story, the ethos of scarcity in this country, that other people have stuff and I don't, which infects every single part of I think how the Supreme Court thinks about justice right now, right? Your kid goes to Harvard, my kid can't go to Harvard, then like we must have a problem, right?
Right? If those people can't adopt Native American children from tribes, and the Native American tribes get them, that's not fair to those people, right? It's this constant grinding ethos of anytime anyone gets anything in America and you lose, that's injustice. It's a very childlike view of it.
And then just the flip of that, like when you feel you get justice, which is what– when Sky Daddy tells you you're right? Both of those things are totally views of justice that I feel have completely infused the way we think about law and justice in this country.
Adam Davis: Great. That actually feels… it feels right on and it feels like a helpful way to start thinking about what you said about the people in the sky that are gonna do the right thing where justice is concerned.
Maybe one more. This is not a childhood question. It's as we move towards the question of law and the courts. I guess I wonder if you could talk about how it is that you decided or came to start paying attention to the Supreme Court specifically.
Why was that the thing that you were like, this is where I'm gonna put my attention?
Dahlia Lithwick: So this is a funny story because I went to law school. I probably couldn't have named any Justice other than Sandra Day O'Connor who was at the time, when I applied to law school, the only woman on the Supreme Court.
I don't think I could have named four justices. I just didn't think about the Court very much. I went to law school because after college, between college and law school, Paul Newman had a camp I worked at. At the time it was only one camp. Now it's a whole network of camps for kids with terminal illnesses and cancers and blood diseases.
I worked at the camp for a couple years between college and law school and wrote a book about it. And what I realized was that every single kid that I worked with at the camp would have been better served if they had a lawyer than a doctor. I mean, they were navigating health insurance, they were all of them navigating a just completely Byzantine system that made it impossible for their families to both give them health access and eat and take care of them and have jobs.
And I realized really quickly every single one of those kids needed a lawyer. Ironically, one of the chapters in my book describes Becca Heller when she starts working with migrants how every single one of those people needed a lawyer. So it was not like, oh, ‘I want to be an attorney and, you know, do constitutional law, and I'm so obsessed with Anthony Kennedy…’
That is not what drove me. (And I would have been the one person obsessed with Anthony Kennedy.) But that was not what drove me to law school. What drove me to law school, and this is your injustice point, was the sense that how is it possible that we live in a country where people who hit absolute rock bottom in the Luck Olympics, need a lawyer to fight for them, and none of them have access to a lawyer.
So I didn't even start to really think about the US Supreme Court quite literally until I had worked at Slate for a few weeks. This is a ridiculous story, but I worked at Slate as a freelancer. I covered the Microsoft trial and then they called me and said do you want to cover the Court because you're funny, and I was like, okay.
And then I staggered into the Supreme Court building and I was like, every one of these men looks exactly the same. I mean, they all…Souter looks like Breyer, Breyer looks like Kennedy. Oh, Clarence Thomas, okay, you know, and Scalia. But it was so crazy. I knew nothing about it and, and just… and then… I'll stop rambling.
But like the funniest part… about the Supreme Court Press Corps, which nobody tells you, is that they march you in, in order of importance in the world. There is no other press corps in the world where they… you come to cover the argument and they're like the seats are numbered, 1-12, and the rows have letters A through G. They're like, ‘you are C 8.’
I think C 8 was where I peaked. I never got higher than C 8. Linda Greenhouse is A 1. Nina Totenberg, no, Nina Totenberg is A 1. Linda Greenhouse is A 2. And then they make you line up in the hall and march in, in that order. So all the B's are like, ‘Ha ha, C's–Suck it.’ Cs, and the Ds are mad at the… it was insane.
And they, you walk in like the Medici wedding, right? Where you're like, I am the 17th most important person in the room. And the reason I tell this story is because only the A’s and the B’s can see. Everybody else is sitting behind these columns and curtains. And so, this is the press corps, right?
These are the people who are tasked with explaining the Court to the public and they can't see. So the way you know who's speaking at oral argument– obviously there's no television–is that somebody from the press office at the court is flashing hand signals. They're like ‘Scalia, four’ and the ‘four’ corresponds to their rank.
Right? So then you're trying to figure out and you're looking at your notes and you're like, okay, who's that? Well, it's not Clarence Thomas. He doesn't talk. You're trying to figure out who's talking, okay? And I couldn't do voice recognition because I had no idea who these people were.
Adam Davis: So…
Dahlia Lithwick: I don't know what that story was even about.
Adam Davis: I think it's about a lot and it's interesting where you were talking about the kids who needed the help of a lawyer, and then talking about the entrenched hierarchy, even among the press corps and the opaque character of the Court. And it seems to me these things are related and I think it's probably where we're going to go.
And so I guess I want to ask about that here early on. This question of… it seems like, from reading the book, from listening to Amicus, from listening to other things, you've had both very strong positive feelings– you're drawn towards the court as a tool for improving our democracy, and increasingly skeptical about how it could do that. But the thing I want to ask about based on what you just said about how you got lined up and marched in is that the Court– of the three branches–seems to be the most hierarchical, the least accessible, and so I just want to ask about that.
What's the relation between our hopes for democracy from the Court, and the way it functions in this hierarchical, mostly opaque manner.
Dahlia Lithwick: That is the question, Adam. And I think the answer, you know, there's so many layers. I mean, you could go beyond hierarchical, and you can go beyond self-mystifying.
There's all that, and then there's just anti-democratic. It's all the way down. My first cut at the answer is that the Court is in this kind of unique position, right? And this is by design. You can, you know, read the Federalist Papers.
This is by design, right? It has neither the power of the purse nor the sword. The only power it has is public legitimacy. And the idea was meant to be that the Court would earn that public forbearance and acceptance and tolerance. And that doesn't happen immediately, right? It takes many generations.
Justice Breyer talks about this in all of his books, but you know it took really a long time for that kind of capital to build where the American public said, ‘Okay.’ Even though the Court has no army. Even though it has no treasury. Even though the American people could just vote to like, turn off all the lights and take out the toilets.
The Court is the decider, and that is very improbable, and that was the experiment. And I think that the choice was made, and this is why your structural questions, beyond just the large ‘D’ democracy questions, are good ones. Is that part of the way the Court decided to do that was through this process of mystification, right?
They built–you know it took until the 1930s– they built a building that looks like a temple, right? It doesn't look like other government buildings. It looks like the Oracle at Delphi. That's by design. The black robes, by design. For many, many, many, many years, most of the court's history, if you got a transcript of an oral argument, it didn't say–like if you look up the transcript for Brown v.Board–it doesn't say which justice is asking the questions. It just says the Court. Because the presumption was they're all these nine perfect brains in a vat, and you don't need to know which justice was asking the question. It took years until they realized that maybe people want to know whether it was Justice Stewart or Justice Brennan asking a question.
But I think it's part of, you know, when we who cover the court would say things like… I don't want to go deep in the weeds with my complaints about how they made it hard to cover the Court, including, in June when you don't know which decisions are coming down. You don't know which days are decision days.
You literally sit there waiting for the jack in the box to leap out and punch you in the neck. We call that June. It's such a crazy system and no other court in the world is mystified to the degree that the Supreme Court is. And up to and including it did not have audio for the longest time, right?
We had to fight to get same-day audio. The secret reason that Amicus drops on Saturday morning, which is an improbable time for a podcast to drop, was because for years and years and years, all of the audio archives would go straight to the Library of Congress. You couldn't get audio at all.
And then at some point then Chief Justice Rehnquist was saying, ‘we're gonna do audio for Bush v. Gore, and the gun cases, and the abortion cases, and affirmative action,’ right? You'd get four or five same-day audios a term. People like me in the press corps wrote stupid, stupid articles saying, ‘you can't pick and choose which are the five important cases of the term.’
If you're the named plaintiff in something that isn't the affirmative action case, you sure think your case is important. And more pointedly, and I did write this at the time, why would you signal to the American public that the cases that are most divisive and ideological and polemical where the justices are most apt to act out, those are the important ones? Like, don't you want to just do the maritime law cases and have everyone be like, ‘Oh, what they do is so boring, but at least they're unanimous?’ That seems like a good message. And after I wrote that piece, I got word back you know, from somebody saying, the Chief Justice read your piece and he just wants you to know we could take all the audio away.
Right? Nice press corps you got there. It would be a shame if something happened to it. That's a true story, a couple years later there was immense pressure on the Chief Justice so he took all the audio away. And then there was pressure on Chief Justice Roberts to give the American….you know, there's arguments for not having a camera in there; there was no argument for not having same day audio. And we know that when you can hear it, people were sitting in their cars and listening. And so, what did the Chief Justice do? His grand bargain was they would drop all the audio for the week on Friday at 6 o'clock at night. When every journalist, except Nina Totenberg, is drunk in a bar.
And so, it was like the best possible way to be like, ‘look at how transparent we are,’ and also give us something we couldn't work with. And we just made Amicus a Saturday morning show. For no other reason than the subversive plan to get oral argument in people's ears. So I think that it's a huge, long winded way of saying that I think the error, and we're really seeing it now with the leaks, the error the Court has made is the choice of less and less and less transparency, more and more and more blame the messenger, right?
Get mad at the press corps, get mad at critics. And there's this sense that public legitimacy is not something that the public confers on them, but something they have conferred on themselves. And when it's threatened, they come out hot and crazy. And so I think the answer is, we are really now, I think, living in kind of the detritus of a really bad set of plans about ‘we'll hide everything. We won't file financial disclosures. We'll go on super yachts. We'll do all this stuff and nobody will find out.’ And then when people find out the answer now is you're delegitimizing the Court.
Adam Davis: So there's so much in that comment, including what you said a couple minutes ago that it used to be that opinions were just attributed to the Court.
Dahlia Lithwick: Not opinions. Questions and oral arguments.
Adam Davis: Questions. I apologize. Thank you. And now they're attributed to the individuals. I can see arguments, at least in principle, that it would be better if it were not attributed to individuals. In a way, we're so aware of the individuals on the Court that the Court seems to have disappeared behind the individuals.
So I want to ask you about that. How did that happen that we're so aware of the individuals that we've sort of lost sight of the Court. And is that a good thing, that we've seen the individuals come more into our sight?
Dahlia Lithwick: I mean, I think you're exactly right. And I think most Court watchers attribute this phenomenon to two things.
One is the celebrification of everybody, right? And so, Sonia Sotomayor is throwing out the first pitch at ballgames, right? And Justice Ginsburg is a rapper icon. This is not the way I came up, right? For those of you who are old enough to remember, after the book, The Brethren came out–which was really like a, peel it all out, throw it on the ground and let people see how the sausage is made–it was such a catastrophe for the Court that after The Brethren came out, the Court locked down. Nobody's giving public speeches, nobody's doing appearances, nobody is talking to the press. The law clerks, most of the time that I was covering the Court, the law clerks if they spoke to you, it was at their peril.
It was understood if somebody leaked, if a clerk leaked anything, they will never work in Washington again. Right. With thehalf million dollar signing bonus that comes with that. So, honest to God, when I first started covering the Court, I had a very good friend who was clerking and when she would meet me for lunch, she would wear a hat and dark glasses and almost a fake mustache, terrified of talking to the press, and that really held.
So I think part of what happened is somewhere in the mid nineties, and I remember Justice Scalia naming this. ‘You know,’ he said, ‘We've all been super quiet, we never talk, we don't do public events, we don't go on TV.’ Then he used the word–’I think it's time for us to come out of the closet,’ is what he famously said, (which I think that those words don't mean what you think they mean) but he really felt like if everybody was talking about the Court, he needed to be in the conversation and then more and more you would see him.
Now we see Justices writing books and Justices going suddenly… you know, Justice Breyer is on ‘Wait, Wait, Don't Tell Me,’ and all the justices are on TV. So I think there is this celebrity thing that starts, and now it's off the hook, right? Now it's off the hook.
It's truly the case that the justices are rock stars. When I first started covering the Court, there were stories every single year about people handing their camera to Justice David Souter and not knowing he was Souter and being like, can you take our picture? Nobody knew who any of the justices were just the same way I didn't.
I think the other thing that happened in addition to this is it starts to inflect in the doctrine, where you see justices writing. Professor Dean Irwin Chemerinsky has salient thoughts on this. They're starting to write soundbites, right?
They're starting to write dissents that they know are going to be turned into a TikTok or turned into a thing, right? So it is that sense that what you want to do is do the throwdown line as oral arguments start to ramp up. And then the other piece is just confirmation hearings.
I think we forget that throughout most of history, confirmation hearings happened on paper. I think Justice Brandeis was the first one who went to his own confirmation hearing and only because there was rampant anti-semitism that was gonna scupper confirmation.
The first televised confirmation hearing was Sandra Day O'Connor’s. Until then, this was like a five-minute, ‘yes, no, of course, yes, they're fine.’ They breathe, they ambulate, they're in. Suddenly it turns into this telenovela, five day event of screaming and crying, and the wife, and the senators, and the ‘gotcha.’
I think both of those things, to just go to your question, absolutely delegitimize the Court because it makes it a kind of cult of personalities and I think that the Justices, with some exceptions, have let that dictate not just how they behave but as I said, sometimes how they write
Adam Davis: It's interesting to think that impulses toward transparency in some way might end up running against the Court's ability to do what it most ought to do.
Which it sounds like some of that is happening there. It makes me wonder what we most should hope for from the Court. When you said that the Justices have become celebrities, in a way they've become celebrities, but they've also very clearly become political pawns. Which doesn't feel exactly the same, so that we almost know what they're gonna say before we've read the opinion or the question because of who says it.
And do you have a sense of how or when that shift happened, where like, you kinda know?
Dahlia Lithwick: So a couple of things. One thing, and I actually think this is unbelievably important, and we've missed it, is that the confirmation process actually changes the justices, right? And so, I wrote about this a lot at the time.
If you go back and look at the justices whose views on the First Amendment have become most radically anti-press, anti public access, anti openness and transparency, there’s almost one to one perfect, unerring, correlation to the Justices who had a bad time at their confirmation hearings. And that's not entirely unreasonable because I think we forget that every single justice who has come to the Supreme Court in modern times comes from like what? You know, an obscure circuit court, right? An obscure somewhere in the Justice Department. These are not people who are used to the Klieg lights of public scrutiny. And so if you look at, you know, Justice Alito, who, I really believe to this day, is angry about what happened at his confirmation hearings, where you may recall he was being called a racist for an eating club he was involved with in Princeton.
His wife, Martha Ann, left the room crying. I mean, that changed the way he thought about the press and the public. Justice Thomas, you know, don't get me started. When you read Justice Thomas’ concurring opinion in the campaign finance case, he's talking about public disclosure as though it's like disclosing your donors is a video game in which you end up bloody and writhing on the floor.
I mean, he really is of the view that public scrutiny of any sort is toxic and dangerous. And case after case after case, they’re I think two of the most extreme iteration of people who just really are mistrustful of the press and the public. I think that's not accidental because they felt that they really, really got raked over the coals, fairly or not, at their hearing.
So I think one piece of it we should be thinking much harder about. Justice Kavanaugh, I would say the same, but even, you know, it was very, very clear to me that Justice Jackson was really affected by what was directed at her in the press. And by the Senate at her hearing.
So we should be asking ourselves, are these job interviews in which this person is in front of their families, flayed alive for five days, worth doing if they're going to have a lifetime appointment in which they decide what the press does? I just think we have not been very smart about understanding… I really mean this. Itt leeches into their views of the doctrine. If your one experience with the public and the press is that they are merciless, feral monsters who want to destroy your life, that might affect how you write about the public.
That's one piece of it. And then I think that the other piece of it is that we have just entered a time, and we're so in it that we forget that it really wasn't until like the last five or six years, that every single liberal on the Court was appointed by a Democrat. Every single conservative on the Court was appointed by a Republican.
That's new. We've never had that. And so we now have a Court where, as you said, you put in a quarter, you get your Snickers Bar. That's entirely a construction of, you can sort of pick your poison whether it's, this multi-million dollar judge-making factory that raises young judges hydroponically underground so that by the time they're in law school they're already being groomed, right? For the right clerkship and then the right spot on the right, bench. And then… I mean, this is clearly a juggernaut and we've never had that. And, you know, if you think back, could Hugo Black get on the court today? Could Justice Marshall get on the court?
I mean, nobody could get on the court under these terms. You literally have to be part of a machine. And so, of course, it's entirely predictable, because, and this really goes to the beating heart of your question, which is, we've never in my lifetime not had a swing justice.
And suddenly, I mean sometimes,my friends, it was Brett Kavanaugh. Last term I think it became Justice Barrett. But these are not swing Justices the way you could walk into a case you had no idea what Justice O'Connor would do. You could predict with about 60 percent accuracy what Justice Kennedy was going to do. I mean, you can predict.
And so I think you're right to say there are no surprises. And I think that's because the entire institution is now captive to the financial and political forces that own the building.
Adam Davis: Okay.
Dahlia Lithwick: Womp womp. (Laughter)
Adam Davis: I mean, I wasn't expecting we were going to be skipping around here. You know, a minute ago you talked about how it was that the incoming Justices came to trust the public less.
I want to ask you about the other side of that. These days the public does not seem to trust the Court. What would it take for the public to come to trust the Court? What are things that could change that would decrease our merciless approach to all of this?
Dahlia Lithwick: Okay the sad laughter in the back right of the house.
This is where, and this is my bias, I think the Court has squandered the public trust. I think that, and here's a place where I've just been wrong, I think that the Court has always been in a kind of a dance with public opinion, with the American public, and you asked the structural question before and I didn't answer it.
I think we all understand the basic theory of the three branches of government and checks and balances, and of lifetime appointments, and of insulating the justices from political winds. The theory is we need a counter majoritarian branch, right? We need a court that is not going to put up its finger and say, well, the public wants desegregation, let's do it.
It's important, it's essential to protecting minorities, so I think we have to be very clear that when the Court acts in counter majoritarian ways, we can't just throw up our hands and say, well, the public doesn't like it, right? We want that. It's baked in. But then I think, just to go to your question, the Court seems to now think that the best way to show judicial independence is to just not care and to aggressively, I think, fly in the face of public opinion.
We can sort of tick down the things that I think they could do to change. But the simple things, like the low hanging fruit, when the American public is telling you at like 86, 87 percent, they want an enforceable ethics code because every other judge in the country, every other Article 3 judge in the country is bound by an ethics code and it's not like choose your own ending.
You know, ‘I think I'm ethical, move on.’ It's not that. There's no ethics code in the world in which the Justices are their own arbiters of whether they've crossed the line. And so to me that seems like the minute that was starting to become an issue, not saying, ‘you know, you're right, America, 230 years later, we probably should be bound by the same ethical rules, at minimum, as other federal judges.’
And instead, to do this ridiculous song and dance that is like ‘we can't do that because it's a threat to judicial independence,’ and like, ‘we wouldn't, you know, want to take away anyone's super yacht.’ I just think it is so ridiculous. So mealy-mouthed. Mm-Hmm. And so insensitive to the enormity of the problem.
And I just wanna point out, I think I wrote this this week in response to the amazing piece by Jody Canter and Adam Liptak reporting on Sunday about how the sausage was made in the three January 6th cases. I almost think the tell, the most interesting piece that didn't get as much attention as it should, is if they are correct that that Fisher case, which was the statute that they were charging the insurrectionists with and the Court said you can't use that statute in that way.
That case was originally assigned to Justice Alito. And at least to hear, you know, the Times speculation, this happens around the same time that the Flag Gate 1, Flag Gate 2 happen. And the most interesting thing is that this has never happened. Nobody has any memory of somebody losing an opinion, not because they couldn't get five votes for it, that happens, but because they did something that the chief apparently pulls the opinion back and writes it himself.
And the amazing part of that story is that Justice Roberts knew about the flag stuff years earlier. It wasn't the flag stuff that was the problem. It was getting caught that was the problem. And to me, if you needed a still life in the problem at the court, it's that nothing is a problem until you're caught.
And then when you're caught, it isn't even like, Hmm, maybe we shouldn't be flying upside down flags. It's, ‘I'm going to quietly take away the Fisher opinion,’ presumably, if that's what happened, and maybe nobody will ever know what happened. And I just think that that bespeaks a certain contempt for this public engagement with and public concern about the Court that worries me almost more than the conduct itself because if you can't be honest about why you're losing the people, you're going to lose the people.
Adam Davis: How much should the Court be thinking about the people? I'm asking that in part because we're thinking about the people and the public throughout this series and in part because the Court is deliberately structured to be less responsive to say, you used the phrase, ‘public opinion,’ a couple minutes ago, and I remember, I think it was Rosia Bella, the justice in Canada, who said our job is to respond to the public interest, not public opinion.
And public opinion is so loud now and comes from so many directions and some of the things we were laughing about before, ‘robes,’ all the things that make it seem to try to protect the Court from being too subject to public opinion. So, how can the Court be responsive to the public interest but not be driven by public opinion?
Dahlia Lithwick: Okay, I want that martini now. (Laughter) I'm kidding. These are good questions. I think that the court is unlike the political branches insofar as you have to hold two completely irreconcilable ideas in your head all the time. And one is, there's a great book about this, all judges are political except when they're not.
And that's literally like the title because you have to hold in your head that of course it's a political branch. It is by nature a political branch. You're appointed by the President. You're confirmed by the Senate. It's a political office. And it's something else. It's that tension that I think animates everything you're asking me right now.
What do you do with the branch that is political and also doing a different thing? Presumably we used to think that this other thing was triangulating against the Constitution, or close reading a statute. Whatever it was, there was a second, and the tension is, how do you live in that?
And by the way I've been incredibly and increasingly critical of the Supreme Court Press Corps because I think we err way too much on the side of the other thing, that second thing. You know, they're oracles, they're great, we're gonna interpret their opinions, we're not gonna look at what's behind the curtain.
Which is why, by the way, Jody Cantor at the New York Times, who's an investigative reporter, is breaking these stories, right? It's why ProPublica is breaking these stories. The Supreme Court Press Corps is still like, ‘In a spirited opinion today, I couldn't see it because I was in D7, but I'm told, you know..’ We're still kind of taking dictation a lot of us on this beat and that's like mea culpa. But I think that the tension between the aspiration of doing something that is much bigger than just raw politics, like who you'd pull the lever for if you're voting, and raw politics, that's the work of the Court.
And I think that what the Court has done is instead of saying we're going to behave in a way that really bolsters and reinforces and reifies that second narrative, that what we do is law and it's different and it doesn't map onto our politics. That's their job, that's not my job. And I think that then, when instead of doing that, which is why I would say have an ethics code, it's why I would say, ‘You know, if you have a conflict of interest, disclose it and don't write.’
Those are all behaviors that would bespeak a commitment to that second project. If instead of that, you just say, ‘we're closing all the windows, you can't come in, we're gonna just keep lying to you, and you're bad for questioning us,’ that's behavior that goes in that category one. And so I think that the real kind of tragedy here is that it was theirs to keep, or to squander. And I think that when, and this is really important, if nothing else that I said today makes sense, I hope this does. Those of us who are critical of the way the Court is conducting itself right now, it's not because we want to have no Court. I think we need to be perfectly candid about the fact that whether we like it or not, this court, as currently constituted, will be deciding, I think, this 2024 election.
We don't want this election to be fought out in the streets, right? That's how they do it in other countries. So we need to have a legitimate Court because no constitutional democracy can continue without a legitimate Court. And so those of us who are saying, Oh my God, do the ethics reform, like have term limits, have age limits–the numbers are astounding across ideology that people want just basic things. We don't have to talk about court packing. Term limits, enforceable rules about disclosure, and about recusal [are what is needed]. And they do none of it. What they're leaving us with is the double tragedy of a Court that is going to continue to be The Court, and an American public that is going to say, ‘Yeah, no, I just… this time… no. I did it in Bush v. Gore, I acceded to your decision. And this time, no.’ And that will not have been our fault.
Adam Davis: So a lot of the changes that you just mentioned that you think the court could be making fairly easily are changes around process. And the chapter, ‘Me Too’ in Lady Justice for example, is largely about where is the clear, transparent, accountable process. And what's interesting about that, one of the things that's interesting about that is I put myself in a group of people who responds madly to the content of the decisions more than the process.
Like, that's what drives me, in some way, to react. So I think the question I want to ask is how, especially a lay person, which is the great majority of us who don't know as much as you know, how should we be responding to the decisions that come down from the court? What should we be consulting as part of the public to evaluate whether these are legitimate?
Should we be thinking about process or should we be consulting our conscience and hoping for consistency with that? What is it that most of us that are not schooled in this, should do to try to understand how to react.
Dahlia Lithwick: So I love this question because I think part of my own answer is, you either believe that something has fundamentally changed on this Court in the last few years, or you don't.
I believe something has fundamentally changed. We haven't talked about doctrine that much tonight, but, you know, when you have a Court that simply doesn't care about precedent, right? Or willy nilly saying, ‘Chevron’ was the law, now it's not, ‘Roe’ was the law, now it's not. Whatever it is, ‘the lemon test’ was the law, now it's not.
This a little bit goes to your animating question about why justice mattered to me and still matters to me. I think a huge part of it is predictability, right? Knowing you're going to get the same result time after time. It is what in the law we call reliance, an interest in knowing that you've organized your life around a world that works in a certain way and that it's going to be like that tomorrow, right?
There are a bunch of markers for what is a process that gets us to a just decision. It's not a feelings ball. I have many, many times covered cases that I would have decided differently, but I didn't say no, this process is corrupt. But I think when you have a Court that is, and you know, there's so many iterations of the problem, whether it's deciding things on the so-called shadow docket, right? Cases that have not been argued, have not been briefed, there's a little back of the napkin three sentences that comes out at midnight, you know, SB8 in Texas. It's cool, right? This is, I mean, this is Professor Steve Vladeck and his book is amazing on this.
Um, but there's just marker after marker after marker. Last year, the EMTALA cases, the Emergency Medical Treatment and Labor Act cases where the court reached out, took it, said there was an emergency, there was no emergency, heard arguments and then said, oops, we shouldn't have taken this, it was way too early, right?
So there are these process markers of the court not following its own rules. And whether it's the rule for when you reverse precedent, like there are very clear rules for when you can reverse precedent, ‘We don't care.’ There's inventing a doctrine–there's a major questions doctrine. What is a major question? ‘I don't know. It's what Justice Gorsuch says it is.’ I think that we're just seeing the process markers. And I think that there's a level of, you know, the feelings ball piece of it, which is, ‘I don't like this outcome.’ And then there is their distorting the process to get to the outcome.
And I know that sounds like a lawyerly answer, but it is the answer. And I think if you kind of pan back one from there, I would also say, the process of even how we seat justices has now become so completely corroded, right? That, you know, you can fight about whether it was a, you know, Ginsburg rule or it was a Merrick Garland rule or whatever the rule was, but we used to seat justices when there were vacancies until we didn't, right?
And then we created a rule that said we don't seat justices in an election year, but then we did, right? So I just think that process too has almost entirely broken down. And so when people have this kind of visceral sense, ‘I'm trying to decide if I don't like Dobbs,’ or if ‘I don't like Bruin, the gun case, because I just don't think, you know, we should make abortion, uh, illegal, or I don't think, you know, everybody who wants a gun should have one, because the framers hadn't invented the machine gun.’
I think those are kind of gut check questions that you're asking me, and I think separate and apart from that is the question of how did that case get there. Who argued it? Where did the money come from? And I think that this is where, you know, last year I remember saying, we're still thinking about, largely thinking about, and certainly reporting on the court as though it's this laboratory, this pristine laboratory of justice without saying, like, the laboratory has been bought and owned and peopled with scientists. By one side that literally is getting 1.6 billion dollar donations to put people in the lab. And then we are being kind of acculturated to say, ‘Huh, fascinating decision, you know, in Loper Bright.’ And so I think we have to just be committed to the proposition that if we believe that processes matter, how far off the sort of procedural track do we have to be before we say this decision isn't a decision?
Adam Davis: And even more than that it sounds like this Court isn't exactly a court. I mean that's the direction that you used words like ‘corrupted,’ ‘corroded,’ ‘broken down’-- one after the other and at a certain point it's a decision. I think I want to check in with my hopes and go, ‘what am I hoping for from this?’
Would my hopes be better served by pointing them somewhere else? And so I want to ask that question with reference to the kind of motion of the book and a couple of the women who you look at there, and Anita Hill, who has probably more reason to move away from the institution of the law and the Court than maybe anybody, remains an institutionalist, remains committed to the law. Some of the other people you talk about seem to move from the law towards organizing. And that, in a way, the direction of the latter half of the book is to move out of the Court towards organizing. So I want to ask you, as someone who did go sit in row C, with love it sounds like, institutionalist or looking elsewhere?
Dahlia Lithwick: So first of all, my favorite, we talked about this in the green room, which is not green. We were talking about my favorite line in the book which is a colloquy with Anita Hill where I say some version of why you're still working within the contours of this legal system that was designed and is perpetuating, you know, violence against women of color every single [day], it is doing exactly what it was designed to do, and still you're trying to perfect it. And her answer, which I thought was so eloquent, was, ‘There's no plan B. You know, there's no other thing. When the rule of law breaks down, there's chaos,’is what she says. ‘And you know who never ever thrives in a system of power and chaos is women of color, right? We will lose if it's fought out on the streets. And so we perfect it because plan B is like the militia and that's bad.’ And I think that's really… she doesn't say ‘the militia,’ she would never say that. I'm saying that. We have to perfect it because we don't have another thing. But you're exactly right, descriptively about halfway through drafting the book, I realized that I like ‘Law and Order’ too, and I love courtroom scenes, and I could describe, you know, people winning in court every day, which was what the first half of the book was.
And I was sort of having the realization that you and I are having on this stage, which is you can win all the court cases in the world and still lose democracy. And, you know, we really saw that, right? We have seen that time and time again, that winning in court– we have this notion that that's the arc of justice, but that gets you only halfway.
And then the other half is fighting for democracy. And so, the rest of the book, you know, there's this moment. Vanita Gupta, who at the time was at the Leadership Conference and now at the Justice Department. She had also won a whole bunch of [cases]. She won this incredible policing misconduct case in Tulea, Texas. She was a lawyer's lawyer and then suddenly she was at the Justice Department and then suddenly she was at the Leadership Conference, and she becomes an organizer. And then Stacey Abrams and all the people toward the end of the book are much more involved in organizing and in democracy repair. And Nina Perales, you know, who's doing One Person, One Vote.
And I think what I realized is that just as justice is an aspiration, so is democracy. And we think that those things are carved in amber–immutable things. They're not. And to the extent anything is carved in amber, it's the injustice that is baked into a constitutional system that has an electoral college and a malapportioned Senate and minorityPresidents who lose the majority of the votes, who are, you know, then picking Supreme Court justices, who are then confirmed by a Senate, that is much less than half the country rate. We're baked-in doing the same things over and over again. The only way that changes is by organizing and changing democracy.
And so then I just became very, very obsessed, and this is sort of the theme of the book, with these people who understand that we just can't win trials. We're going to have to do profound work on reforming the Electoral Count Act, which we did after the 2020 election. And state gerrymandering has to be repaired and state Supreme Courts have to be repaired.
Like all of that work, which by the way, I know the lights are off, but I know your faces are all like [makes a snoring sound] because it's democracy reform, no one is ever going to make a Netflix special about reforming the electoral count act. But this is the stuff of democracy and it's a dream and we're not there.
And these women are never going to get famous. They're never going to get, you know, millions of dollars. They're never going to have a Netflix special made for them. But they are doing this amazing, in the trenches, work that I think is, if we can do it correctly, going to perfect democracy.
Not just justice, but democracy. And I mean, dude, I have goosebumps when I think about that as THE job as opposed to winning trials, which feels really good, but it's not going to get us there.
Adam Davis: I love that you just said, ‘dude.’
I think I have a sort of impolite question and it's related to something that Roberta Kaplan says in the book about why she's drawn to law initially. And it's because she's suddenly surrounded by all these very smart people. And she realizes these are the smartest people she knows.
And so I think the impolite question is why is it so hard for all these smart people who agree to do what's right?
Dahlia Lithwick: Do what's right in the context of…?
Adam Davis: Democracy or inclusion. Take any of the big words we're after and whose absence we're lamenting. Why is that so damn hard?
Dahlia Lithwick: I think there's a couple things happening and this is the slight my producer of my podcast says, ‘You're not even, like, Eeyore. You're Broken Tigger.’ She's like, ‘Eeyore I could handle, but you're just…you used to be so bouncy and now you're so sad all the time.’
And I think one of the things that worries me, and it goes back to our celebrity culture question, is that I really came up in a time where we were all like, ‘I don't have to do anything because our RBG is gonna fix everything for everyone. Like if I just buy the votive candle, the mug, the earrings, you know, the decent collar, watch both movies twice and, um, you know, have the throw pillow like we're good, democracy is safe.
And I think, and I quote my friend Rebecca Solnit in the book, talking about how we have very much metabolized a culture of, ‘Kamala's going to fix it,’ or ‘Trump is going to fix it.’ Someone's going to fix it. We have to own this, and embody it in our day-to-day lives, not just a couple times a year, not just get out the vote, not just buying merch, but really, really say like the whole, you know, dream of whether this thing rises or falls isn't like having other smart people do it.
We have to be the smart people who do it.
Adam Davis: Dahlia Lithwick is a renowned legal analyst, journalist, and author known for her coverage of the U. S. Supreme Court and the justice system. She lives in Charlottesville, Virginia. You can find more of Dahlia's work in our show notes at OregonHumanities. org.
The Detour is produced by Keiren Bond. Kyle Gilmer is our editor. Ben Waterhouse, Karina Briski, and Alexandra Silvester are assistant producers. This is Adam Davis. See you next time.