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KAI WRIGHT: Hey, everybody. One of the roles public media plays is to offer a gathering place to process big historic moments. So after news of Ruth Bader Ginsburg's death broke this past weekend, we offered up the United States of Anxiety as that gathering place for two hours on Sunday evening. In the first hour, we just reflected on RBG's remarkable life. This is the second hour in which we turn to the unsettling business of thinking about what her death means for the Supreme Court right now.

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KAI WRIGHT: I'm Kai Wright, and this is the United States of Anxiety, a show about the unfinished business of our history and its grip on our future. And this week, we have a special extended version of the show as we reflect on the life and work of Justice Ruth Bader Ginsburg. Justice Ginsburg certainly made an indelible mark on this country's history. And for better or worse, the fallout from her death while in office will probably also leave its mark on our history. We've spent the past hour talking about Justice Ginsburg's legacy. And for this hour, we'll do a bit more of that but we're also now going to turn to the broader questions ahead for the Supreme Court. And for that, I'm joined by two of my favorite legal scholars and friends of this show. Jami Floyd is WNYC's legal editor as well as senior editor of our Race and Justice Unit. Jami, welcome.

JAMI FLOYD: Hello.

KAI WRIGHT: And Elie Mystal is the justice correspondent for The Nation magazine and Alfred nobler fellow of type Media Center and the former executive director of above the law. Elie, welcome.

ELIE MYSTAL: Hi guys.

KAI WRIGHT: I want to hear each of your own personal reflections and experiences with Justice Ginsburg. I know you each sort of have them. And Jamie, I want to start with you. You knew Justice Ginsburg or at least met her on several occasions. We've been asking listeners to talk to us about the justice's impact on their lives and careers. What about you? How did she inspire you? I did.

JAMI FLOYD: I did. I actually had lunch with her on a number of occasions, not one on one, of course, but at those big banquet tables you will sit at in the course of life in Washington D.C. And on one occasion here in New York. And I guess I would begin by saying Kai, if you and listeners will permit me, I'll begin on a bit of a personal note. There was never a time, Kai, that I did not want to be an attorney. I always wanted to be a lawyer. And you know, growing up in the 1970s as a little girl, I was told, even in the 1980s, that I couldn't be a lawyer. I was told, you know, by guidance counselors and teachers, especially as a Black child, a Black girl, the very people who were supposed to believe in us, women were just not supposed to grow up and become attorneys. And I even went to a very progressive law school. Even then Kai, the beginning of the 1990s, everyone was still talking about the first woman who'd ever gone to Berkeley Law School who then was sitting on the California Supreme Court as the only woman justice at that court. It wasn't ancient history, Kai. It wasn't even history. It was just our lived experience as women. So for RBG as we like to talk about her here in New York, a graduate at the top of her class from Columbia. But first, she went to Harvard as we all know. And Dahlia Lithwick and her writing partner at Slate so brilliantly just reported in July she was one of just nine women in a class of 500 in 1959. So why am I telling you all of this, Kai? Because when we say she was a trailblazer, she really was a trail blazer for the rest of us women who practice law. You get to Harvard where Elie went, to get to Columbia now, you get to Berkeley Law where I went in the classes are at least 50% female because of women like Ruth Bader Ginsburg because of RBG. Kai, there were nine women in that class at Harvard. There are nine seats on the U.S. Supreme Court. And Kai she said that true equality in this country will come when we can clearly see our way to nine women on the U.S. Supreme Court as easily as we comfortably see nine men sitting there. So she was a true champion of gender equality. And that is why it was my honor and privilege to know this woman.

KAI WRIGHT: Well, thank you for that, Jami that is inspiring for me to listen to. And Elie, you also had a sort of run in with Justice Ginsburg by way of Justice Antonin Scalia. Could you tell that story quickly?

ELIE MYSTAL: Yeah, so I never met her personally, but I have met her friend and my enemy Antonin Scalia. When I was in high school, I went to a Friends Academy which some people in the Greater New York area (unintelligible). I was on the mock trial team. Well, you know, we went to nationals or whatever. And for our meet, which we lost, Antonin Scalia was the guest judge. And then afterwards, you know, he had a big talk and then had, you know, took questions from the students. You know, so I'm 15, 16 years old in high school. I asked my question. As I remember, I was the only Black person to ask question or certainly the first Black student asked question. And my question was Justice Scalia, how do you, you know, square your - I didn't know what it was called at that time original exactly. I think I called it founding intent. How do you square your founding theory with a decision like Brown v. Board of Ed where we had to, you know, overturn the intent of the constitutional founders? And he laughed at me. And of course, you know, he's an important guy and this is a roomful of high school students. So, you know, he laughs, everybody laughs. And he was getting around to how I was wrong because, you know, the 14th Amendment is actually controlling and that's why Brown v. Board was good. But Plessy v. Ferguson, which is the case allowing segregation, that was the case that was against the original intent of the founders. And he told me that I need to learn about my own history.

KAI WRIGHT: Oh, wow. OK.

ELIE MYSTAL: And he laughed again. And then everybody laughed. And I sat down quite embarrassed as one as one may be. So I don't know how she found out about the she'd only been on the court for a couple of years when this happened. But we now know that she and Scalia had a friendship. Somehow she thought about it. And she got a message to my mock trial teacher telling that kid keep dissenting, which was nice to hear, which was, you know, it was a reminder to kind of, you know, impressionable time in my life.

KAI WRIGHT: Wow.

ELIE MYSTAL: Just because somebody kind of in authority says you're wrong doesn't mean you're wrong and doesn't mean that you have to accept that authority uncritically and on faith. And it was a good. It was a nice reminder for me. You keep trying. Like Don't take don't don't take their answers on spec and on faith.

KAI WRIGHT: Jami, can I ask you, you know, as earlier in the show I was talking to Emily Bazelon about the way in which Ruth Bader Ginsburg jurisprudence and her work showed up in the cross section between race and gender. You, in your story, you talked about, you know, being specifically not just a girl but a Black girl watching. How - thinking about the intersection of race and gender, how did you receive RBG's work and her feminism?

JAMI FLOYD: Well, you know, she I think thought and wrote and practiced and taught before becoming a judge and taking the bench very much in terms of equality. For her, this was about equality for all people, for all citizens, for all Americans. If we can achieve equality for one, we can achieve equality for all. And you know to crib from Hillary Clinton for a moment. But women's rights are human rights and human rights are women's rights. And as I read RBG's opinions and more recently her dissents and as I study her life as a practicing lawyer - and she was one of those, by the way, one of the last to be very well relatively forthcoming in her confirmation hearing. This wasn't as much about women as it was about the rights of people. This was about equality. You know, women should simply be treated like everyone else. You know, we should all be equal. once women are equal in the workplace, men will be equal in the home.

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JAMI FLOYD: And that was really her thinking. The society, you know, the rising tide floats all boats. The society will benefit, can only benefit. And all children will benefit. And all people will benefit. And the economy will benefit. And I can, you know, preach on, but I need not because we can simply read her brilliant work.

KAI WRIGHT: And Elie, I want to ask you about something you wrote in your in your immediate response to Justice Ginsburg's death. You cite this quote she has about dissenting. You have been a fan of her of the latter stages of career where she became an artful dissenter. Tell me about the way you think about her and dissent and what purpose it plays.

ELIE MYSTAL: Well, you know, you have to go to law school to figure it out. Because when you talk to non-lawyers, they don't always understand the value and the importance of a dissent. I mean, if you think about it, you've lost the case. Why are we listening to what you say? Like who cares? Like, you've lost the case. History passed you by. And you now you're writing this, you know, usually quite passionate soliloquy about why your side was wrong or at least losing. That's weird I think for non-lawyers. The point of a dissent is for the future. And Ginsburg said that herself. She said that the hope of a dissenter is for future generations, right? The point of dissent is to move the conversation forward for other generations. I mean, I think now the modern term is we call it the Overton Window, right? When things get getting shifted to the point where we can only have a conversation within a certain set of parameters. A dissent is trying to shift the Overton Window back towards whatever the dissenter's point is, whatever their view of the law is. Ginsburg was brilliant at really kind of setting not just the legal underpinnings for her arguments but the moral underpinnings for her argument. So that even in defeats somebody can go, you know, years later read that understand that there was a different way to go. The other point of it is quite, you know, without getting too much into legal weeds. You have to remember that, you know, our common law system, as it's called, works on precedent, right? So what works on saying, like, well, we decided this in that case and so we should decide the same thing in this case. And a really good dissent is lays the groundwork for a future kind of lawyer or advocate to say, like, no, no, no, you decided it in that case for this reason. But the dissent says in this situation that's now right in front of us right now, you shouldn't have decided that way, right? So it really does have kind of an effect within our common law system and nobody, you know, nobody least in modern times did it as well and as eloquently and as importantly as RBG did.

KAI WRIGHT: It's a really powerful idea that the dissent is a statement to the future I imagine for a lot of people right now in particular. You know, I mean, we've had this year of so many people marching and standing up and dissenting from what's happening and wondering, are they doing anything? And it's kind of interesting idea that what you're doing is you're speaking to the future.

JAMI FLOYD: She said quote...

ELIE MYSTAL: The way you lose  - oh, sorry.

KAI WRIGHT: Go ahead, Jami.

JAMI FLOYD: I was just going to quote RBG herself, quote, "dissents speak to a future age. They are writing not for today but for tomorrow."

ELIE MYSTAL: The way you lose is sometime critically important. And I think in our in our society it's so winner take all, right? So you're number one or you're a loser. And the law doesn't work that way. And RBG and work that way. The way you go down and the stances you take while fighting sometimes impossible battles matters a great deal. And it is something that future generations can always go back and see because along a lot of these issues, you know, I know it sounds - I know it feels so impossible for so many people who believe in the kinds of policies and issues that I believe in. But these wheels come back around. And I don't want to go full Martin Luther King, the long arc of history. But the wheel will come back around.

KAI WRIGHT: I'm Kai Wright, and this is a special extended edition of the United States of Anxiety. We are going to look ahead at the future of the Supreme Court without Justice Ruth Bader Ginsburg. I'm speaking with Elie Mystal of The Nation and WNYC legal editor Jami Floyd. And we will be right back.

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KAI WRIGHT: So Jamie and Elie, let's get into the nitty gritty here. So Joe Biden and many Democrats have in the last, you know, 24 to 48 hours started drawing our attention to the Affordable Care Act. They say that this is the first and most important place that we should care about the court because the ACA is at risk. So is that true?

JAMI FLOYD: Yes. Yes. Yes.

KAI WRIGHT: Tell us about it, Jami.

JAMI FLOYD: It is. It is before the court. So there's a few things I have to say (laughter). Let me go. Let me go. OK. So first of all, I have a new title at New York Public Radio, and it's actually race and justice editor. And I bring that up not because I care about titles but because I care about...

KAI WRIGHT: Race and justice.

JAMI FLOYD: ...Race and justice. And I had pulled actually a Shelby County vs. Holder because I care about race and justice. And I actually think the case you were asking us about right before we went to the break, I actually think that may be her most important descent that she wrote. I had not pulled the language that you were asking us about, so I was hunting around for it as you were asking. But she starts out by just saying I dissent, flat out I dissent. But then she says, you know, throwing out the work to continue to stop discriminatory changes in voting is like throwing away your umbrella in a rainstorm because you're not getting wet. Basically listen up, America. We still have a lot of work to do here. And, you know, and Sonia Sotomayor also wrote a brilliant and beautiful dissent in that case. Let's tip our hat to her as well. But using the power of language in dissent in cases having to do with race, discrimination, justice, equality, equity was the power of this woman's brilliance. Not trying to dodge your question about the ACA because, Kai, I will make my turn right here...

KAI WRIGHT: (Laughter).

JAMI FLOYD: ...As I say I can do. There is a case actually on the doc. We already know some of the cases for the fall and the biggest case so far in my view, Eli, I'm curious if you agree is the battle yet again, here we go again over Obamacare because now that there is no longer I like the name Obamacare. I think President Obama himself has come around to enjoying that titular name for the ACA. Now that there's no longer a penalty for failing to get the health insurance, the question is whether the individual mandate is still constitutional or is it unconstitutional. So we're back...

KAI WRIGHT: We're back to that...

JAMI FLOYD: ...To the U.S. Supreme Court.

KAI WRIGHT: ...which was resolved already, right? Didn't we already resolve this question?

JAMI FLOYD: Yeah. Yeah. But remember Justice Roberts or Chief Justice Roberts went with that tax. He had this - we don't want to get too mired. We're talking about big lofty constitutional issues and RBG. But there was a very sort of nifty way around it that the chief thought he'd come to. And now we're back before the court again. So yes. And we're going to have an eight-person Supreme Court. So what's going to happen? I don't know. Elie Mystal.

ELIE MYSTAL: Yeah. Well, here's the real problem. When there's a tie, the lower court ruling stands. We learned this during the during the Merrick Garland fiasco when McConnell was refusing to see the nominee. When there's a tie on the Supreme Court, the lower court ruling stands. You need a majority of votes to overturn it. Now the way people were hoping this ACA case was going to fall was that Roberts would once again uphold the constitutionality of the individual mandate - right? - By a 5, 4 decision. But without Ginsburg, we don't got five. So that even if Roberts decides to uphold the constitutionality of the individual mandate, if before arch conservatives say that it's unconstitutional and we have a time, well then the lower court ruling stands. And the lower court ruling says the individual mandate is unconstitutional.

KAI WRIGHT: So that's where we're at right now is that...

ELIE MYSTAL: That's where we're at right now. According to the Fifth Circuit Court of Appeals, which is the circuit governing Texas not surprisingly, the individual mandate as it stands right now today is unconstitutional. To overturn that, we need five votes. And I don't see where they are now.

KAI WRIGHT: And that's the case that's going to be before the court on November 10.

ELIE MYSTAL: That case is being argued on November 10. I see great peril. Now there are a couple of different things that Roberts could do to try to save it. One of the most I think likely options would be for him to basically re-argue the case once the report is back up to full strength, which would give either Trump or potentially Biden while these other contingencies come into play a chance to replace RBG with another justice. Roberts might decide to hold the case. But if he doesn't, if he does, if he just ruled on it with the eight members as he has in front of them and it comes down four, four, then the individual mandate is likely toast. And whether or not that then leads to the entire ACA being ruled unconstitutional is again a little bit murky. But don't look good, right?

KAI WRIGHT: Wow.

ELIE MYSTAL: It's not - it is - we should understand the ACA as in critical condition as of right now.

KAI WRIGHT: So Joe Biden is not crying wolf. All right, Well, we have questions coming in for you two. So let's get to it. Claire in Hartsdale, New York. Claire, welcome to WNYC.

CLAIRE: Thank you. Hi.

JAMI FLOYD: Hello.

CLAIRE: So I guess you're saying that they can still be in session when they're not in person because I thought maybe that...

JAMI FLOYD: Correct.

CLAIRE: ...Could prevent them from...

JAMI FLOYD: They went remote in the spring.

CLAIRE: Oh, gosh.

JAMI FLOYD: And they will be remote in the fall. Yeah, they - and in fact you can you, Claire, can listen in on the arguments in ways that you could not in the past. Elie, is that your understanding as well?

ELIE MYSTAL: Yes, Jami and yes, Claire. They've already announced that they're going to do these arguments in October remote only over the phone. And in terms of how...

CLAIRE: Yeah. When Obama tried to put through Merrick Garland and they said it was too close to an election year and they should wait, those same Republicans are now of course saying the opposite. Can't they be held to their original statements which were very, very powerfully strong.

JAMI FLOYD: Oh, Claire.

CLAIRE: Can't they be held to those statements.

JAMI FLOYD: (Laughter).

ELIE MYSTAL: Claire...

CLAIRE: And I mean, also there's quite a few Republicans that might actually agree not to vote on that yet, like Mitt Romney and maybe Susan Collins because she's so critically possibly going to lose.

JAMI FLOYD: Well, those are two separate questions. You want to pose them separately, Kai? Because there's one, the political question and then one is a political question (laughter).

KAI WRIGHT: Where do we sit? So where we stand right now is that both, at least Susan Collins and Lisa Murkowski have made statements that suggest that they will not vote, that they do not support and will not vote for a nominee before the election. But as I understand, they have not said about what they would do after the election and before a new president or a new Congress has sat. Is that your understanding?

JAMI FLOYD: Well, first let me say I think we should we should not engage in as much of the horse trading as we normally do when we're talking about this process. And you know, Elie and myself both, we've been doing this for a long time. And we both enjoy the gamesmanship that goes into a good Supreme Court, you know, select process. But right now, we are talking, and I'm not being hyperbolic here, but I really believe we are talking about a battle for the soul of our democracy. This is not your typical Supreme Court nomination process. Why do I say that? Because unless we - we need to take a step back as a nation and ask ourselves what we stand for. Can we have deeply rich conversations about our democratic principles, what we fundamentally believe? Do we believe in the same things as Americans? Equality, freedom, the rule of law, because if we don't we're in deep trouble. You know, John Adams says - said democracy never lasts long. It wastes, it exhausts, it murders itself. Democracy, he said, I never knew a democracy that didn't eventually commit suicide. You know so we need to be asking ourselves some serious questions. But to get to Claire's question, there are some Democrats - and then I'm going to turn it to Elie - some senators, some Republican senators, not Democrats - they're on one side - but there are few who might take John Adams' quote to heart, to heed. And Elie, if that happens, then what - then where are we with the process?

ELIE MYSTAL: Yeah. So I just want to - I also want to take that step back for just two seconds and just remind people that Antonin Scalia passed away in February of 2016 at which point Mitch McConnell and the entire Republican caucus held together and decided that Obama's nominee could not even get a meeting much less a hearing, much less an up or down vote on the Senate floor, because we were in an election season. Ruth Bader Ginsburg has passed away in September of an election year when people have already started voting. So the hypocrisy that's coming out of the Republican caucus right now simply cannot stand. That is beyond - it is beyond the pale. It cannot be the case that only Republicans get to nominate Supreme Court justices. That is not a legitimate system. So that's number one. Number two, Kai, you've already brought this up and it's exactly on point. These Republicans right now who are making mouth noises about how maybe they won't confirm a nominee before the election are saying nothing about what happens in the lame duck. And the lame duck is crucial because what it makes sense for the Republicans to do right now is to hold it open through the election, see if that can gin up some Republican base voters to come out and re-elect Trump. And if it doesn't, if they lose the election, then what do they have to lose by pushing through a nominee during the lame duck between you know November 4th and January 20th when the new president would take office, right? So that's a long period of time where all kinds of electoral confirmation shenanigans could well play out. And I think we have to be you know desperately worried about that, which brings me to answering Jami's question, the state of play. I do not think that the Democrats can bluff here. If the Republicans decide to seat a Supreme Court nominee before the inauguration, then the Democrats have to be willing to play hardball and have to be willing to look at expanding the number of justices on the Supreme Court. That is the only play.

KAI WRIGHT: Let me stop you there because I think we have a call about that. One second. So Mary in Fairfield County, Connecticut, Mary, welcome to WNYC. I think this is precisely what you want to talk about.

MARY: Well (laughter), hi there. Well I think my first question was just answered which is, is there any chance that you would increase the number of justices? So you just created a little scenario that made it clear that it could be a real possibility.

JAMI FLOYD: Well, I just wanted to tell Mary that we started in this country with just six Supreme Court justices. So I just wanted to give Mary that historical context. We've already grown from 6 to 9. So it's not unheard of. Do go on, Mary.

MARY: Right. No, no. I understand. I'm just, this is a very tense political moment. And I'm just I'm interested in all sorts of aspects of this. The other thing that really is on my mind is I've heard so much buzz about this but nothing that sounds like it's moving forward and that is, is there any serious way that we could term limit Supreme Court justices so it's not a lifetime term but maybe a term of 12 years or 16 years which would assure that they would serve through at least several administrations but then get the hell out and give somebody else a chance?

KAI WRIGHT: Thank you for that question, Mary. OK. So you know we have two sets of questions there with there is that - I do want to ask about sort of what is the logistics of expanding the court and then secondly this question of term limits. So each of you can take one. Elie, pick your answer.

ELIE MYSTAL: I'll do the logistics of expanding because the bottom line - and this kind of blows people's minds when I tell them this - is it is actually a much easier constitutional argument to expand the number of justices on the Supreme Court than it is to term limit them because the Constitution itself, Article III of the Constitution says that as a supreme court justice shall serve for life. It says nothing about how many there has to be and in fact leaves that decision entirely up to Congress. The number of Supreme Court justices as we have now, nine, is set by a simple act of legislation, the 1869 Judiciary Act which set it at nine. We were at 10 right before that. As Jami pointed out we used to be at six. So you can change the number of justices. Just you know you get 50 votes - 51 votes in the Senate if you abolish a filibuster (laughter). You can change the number of Supreme Court justices like that. And that is why I tend to focus on expanding the court not because I think it's the best solution but it's literally the easiest under the current Constitution.

KAI WRIGHT: And Jami, what about this idea of term limiting Supreme Court justices?

JAMI FLOYD: I think Elie has just answered both questions. Term limiting would require a Constitutional amendment. I'm also not in favor of it. Elie and I've had public debates by the way on either side of this issue. He would prefer that they be term limited. I actually like the judicial independence that it provides. Once they're appointed if you look over the course of history, not just Supreme Court justices but federal judges in general, often once they enjoy that independence, become very different judges and even people than they were when first appointed. So I think - and when you look at state court judges it can be very different because they're seeking re-election in some places, which requires fundraising, all kinds of things. So I think the independence that you get with a life appointment is fine. And I think it really does serve our Constitution well. But we can have that debate Elie on another call on another day with our listeners all calling into weigh in on this fascinating, fascinating, esoterica of constitutional law.

ELIE MYSTAL: And quite frankly, like again, it's not even a question of whether or not you like term limits or not. There are some really interesting ideas about how to make term limits constitutional within the context of the current constitution without needing an amendment. But as I like to point out to people, guess who gets to decide whether or not something is constitutional? John Roberts and the Republican controlled Supreme Court. So do you want to be the person that goes into John Roberts' house and tells him actually he needs to leave in 18 years? Because I don't think that's an argument that I can win whereas the arguments that I can simply put more justices on the court - and I personally and I've written about this in the nation, I support a plan that would expand the number of justices by 10 to 19 to make the Supreme Court look more like the lower circuit courts in our country. But I can do that by a simple act of legislation. When I go into determinant land, I have to really worry about getting - extending all that political energy and still getting constitutionally smacked down by the very Supreme Court that I am trying to limit somewhere down the road.

KAI WRIGHT: Quickly the history of this. So you said that we've had - we've changed the term limit. We've changed the number of justices in the past. But it sounds like the last time was 1869. Has there been any modern efforts to change them?

JAMI FLOYD: In 18...

ELIE MYSTAL: Well, there was FDR (laughter).

JAMI FLOYD: Go ahead. Yes, there certain - The Big Fail, though very powerful effort. That's right. Court packing in the '40s and it's the last time I know of an effort to pack the court that was public and so publicly failed.

KAI WRIGHT: This was - I just want to clarify. So this was FDR in the '40s set up this idea and Congress threw it back in his face. That's the short story?

JAMI FLOYD: Pretty much.

KAI WRIGHT: (Laughter).

JAMI FLOYD: A good summary, yes, mostly because he couldn't get what he wanted done for what he thought was the good of the public done in a crisis situation for our economy and our country. And you know I'm going to say I don't really agree with Elie's court packing plan either. But I certainly think that our democracy requires that we be nimble and not rigid and stuck in the ways of 18 - well, first 1790 and then let's say 1820. And then you know the Judiciary Act was first passed in 1789. And the court wasn't even thought of as a powerful branch that would balance the other two branches. So certainly - and it was based in New York, which I'm okay with. But generally we have to evolve. We have to. Think of all the cases that were bad cases - Dred Scott, and Plessy versus Ferguson, Korematsu - '44. Not that long ago, right? Bowers versus Hardwick, so clear - Bush versus Gore. I think many people would agree not a good decision. So generally we have to evolve. And if that includes structural, we're all talking about structural change in our country. Well, maybe that includes the structure of our not just Supreme Court but federal courts as well. Change must happen and certainly in our courts it should happen too.

KAI WRIGHT: And Elie and Jami, we're going to move on from court packing and turn to Steve in the Bronx. Steve, welcome to WNYC.

STEVE: Thank you.

ELIE MYSTAL: What's up, Steve?

STEVE: Hi. My question is a lot of airtime has been taken up about the hypocrisy of the Senate Republicans. Could you give us a recap summary of what's going on with the Senate, the Democratic senators, especially Senator Schumer and what he said four years ago and what he's saying today? And is there a difference there?

ELIE MYSTAL: I'm generally defensive of the Democrats here for two reasons. And trust me I'm usually not the person that's defensive (laughter) of the Democrats. But I am here for two reasons. One, Schumer's not in the majority, right? So Schumer didn't have power to stop McConnell and really it was Reid at that point to stop McConnell from blocking Merrick Garland and he doesn't have power to stop McConnell from pushing through whoever he's going to push through now. So you're fundamentally fighting kind of from a position of extreme weakness, right? I think that in terms of what they were saying in 2016 versus what they're saying now, I think they're simply trying to hold Republicans to their own standard. If the Republicans had allowed Merrick Garland to sit in this seat, I do not think you would see the kind of outrage coming from the Democratic caucus in the Senate that you see now. It is a direct, I believe, one to one reaction to the hypocrisy that we saw just four years ago. Again, these are not senator - it's not like the 2016 senators have all like retired and gone away and gone to a farm upstate. All right? These are the same people. These are the same people. And so when those same people then react hypocritically, what we're seeing - and I've said this before - what we're seeing is a world where the Republicans think only Republicans get to name judges and justices. And that is simply an illegitimate world.

JAMI FLOYD: And Schumer is saying Kai and to our caller in the Bronx - and I thank you so much for calling in. He's saying nothing is off the table. If Leader McConnell and his Republican allies move to fill the seat nothing is off the table. But right now Schumer and the Democrats don't have any power as Elie points out. So what Schumer is talking about is if we win and we're in power, if we hold a majority in the Senate, and you make this move now, then we will use our power when we have it to work against you once we are in power. But as of now we have no power. So I'm kind of with Elie on this. I want them to really try and you know fight fire with fire if you want to use you know rather powerful language. But the powerful players are about seven or eight Republicans who have to really look and look at their children and their grandchildren and their constituents and just do right by our Constitution.

KAI WRIGHT: I want to move to voting rights because - so we talked earlier in the hour about...

ELIE MYSTAL: What are those?

KAI WRIGHT: ...About the Voting Rights Act.

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KAI WRIGHT: I know that it's near and dear to both your hearts but in terms of thinking about - we said health care is something that's an immediate question now with the state of the court. What about voting? I mean, there is as I understand it there's huge numbers of cases currently being litigated...

JAMI FLOYD: Right, right.

KAI WRIGHT: ...That are likely headed to the Supreme Court for this current election. What is the state of play there?

JAMI FLOYD: Well, I see actually a number of issues happening here. So the first big issue is what happens when the election - people are already voting as Elie points out. It's going to be complicated to say the least. I will remind everybody of a very significant case that came down in December of 2000 that's been named a number of times here already, Bush versus Gore. And we have a 4-4 decision let's say. We have a Supreme Court that is not fully constituted. And then as Elie points out, the lower court decisions would stand or a decision would stand. So that's the first thing. What happens in the presidential election? That's the first thing. Second of all as you point out Kai, we have lots of litigation happening regarding absentee balloting, regarding voter disenfranchisement, litigation in all the key states about how this election is rolling out even before we get to a dispute over its outcome, and then there's the third issue over the confirmation itself and lots of other things too. So obviously so many key issues related to this - the presidential election, the down ballot elections, elections (laughter), voting rights.

KAI WRIGHT: And the cases that we're hearing, that we're seeing right now, these are cases many of them about how states can or can't deal with their current elections because of COVID, how they're changing their rules around mail-in absentee ballots and that there's just an enormous amount of litigation going on because of this, right? Is the - Elie, going to you on this.

ELIE MYSTAL: Right now, voting rights advocates are one victory against four losses in front of the Supreme Court since the beginning of the coronavirus pandemic in terms of getting states to expand or change their voting processes due to coronavirus. I think the most devastating case was one coming out of Alabama where they require you to have - for your absentee ballot for you to either have two signatures so like you and like another random person validate your signature or a notary public validate your signature. These are the kinds of voter suppression shenanigans that Republicans play at a very high level. And when we talk about the upcoming election, I would just say that this is not an issue where we're losing - RBG has really changed the state of play because you never had Roberts. You never had Roberts. There was a great piece that came out last week in Vox. I encourage people to go read it by Ian Millheiser that just goes through John Roberts' career. He has been an enemy of voting rights for his entire career. He is the man who authored Shelby County v. Holder which is the decision that gutted the Voting Rights Act. And long before that and long after that Roberts has been an enemy of voting rights. It is actually the opposition to voting rights that I believe holds the Republican juris, the Fed SOC type of people that Republicans appoints to court together more than any other issue. And I understand I live in a world where abortion is a thing. All right? Like it is the voting rights, it's their antipathy to voting rights that holds that caucus together to the point where one of the people most likely kind of the leader in the clubhouse to replace RBG on the Republican side have pushback from other conservatives is that they are not sure if she's against voting rights enough. All right? So like that's how deep this goes. And this was before you know regardless of RBG, this was a thing that Roberts was always going to rule against the franchise for people. And it's a huge problem as we go into another what will certainly be a very close election.

JAMI FLOYD: And just to put a pin in it, Kai, it's not that the rules aren't written. There are laws on the books in the various states in all the states and this includes the key states that we focus on, the eight, but there are so many different efforts to change the rules, to challenge the rules. As people are now voting, voting has begun, this is leading to uncertainty as election officials are trying to finalize the plans, as voting is beginning, voters are trying to figure out how to actually cast their ballots. Republicans are pushing back. Activists are trying to ensure that every vote is counted. So this is what we're walking into and most certainly going to wind up in the U.S. Supreme Court - so one of these many cases and probably several of them. So that's what we're looking at heading toward well past November 3rd, well into December I would posit.

KAI WRIGHT: So lightning round because we literally have like two minutes here. I'm getting - another question I have is we've gotten on Twitter. Can Trump pack the court? Can he try to pack the court between now and the end? Quick answer.

JAMI FLOYD: The end being November 3rd?

KAI WRIGHT: Yes. Between now and if before - if he were to perceivably lose the election.

ELIE MYSTAL: Yes.

JAMI FLOYD: No.

ELIE MYSTAL: He can...

JAMI FLOYD: I say no.

ELIE MYSTAL: My answer - he can try. Bring it. I'd live with a 100 person Supreme Court. Let's go. Let's do it.

JAMI FLOYD: I say he can't do it as a procedural matter. He doesn't have the time to pull it off between now - if the end is 2024...

KAI WRIGHT: Right. Right.

JAMI FLOYD: Between now and January 20th, can't pull it off.

KAI WRIGHT: Very, very quickly, each of you, we've talked about health care. We've talked about voting rights. What haven't we talked about that's like really going to be crucial here now with this new constituted court? Jami, quickly 30 seconds.

JAMI FLOYD: Well, larger civil rights and civil liberties beyond your voting rights, your right to privacy, your right to freedom from governmental interference in your privacy, sanctity in your home, et cetera, police, policing writ large, not just - of course we do care about your life and liberty on the street and in your home, but I'm also talking about through electronics, the kind of privacy we sign away every day without realizing it to our government and also to social media companies.

ELIE MYSTAL: Torres v. Madrid is being argued in the first week of October. It's a case where the cops shot a woman twice in the back. She got away. She got to the hospital. She sued them for excessive use of force. The Tenth Circuit said that she could not do the cops for police brutality because she was not successfully seized. The Fourth Amendment which protects our right against unreasonable search and seizure does not protect her because the cops while they shot her twice in the back did not actually incapacitate her. That's a Tenth Circuit rule. That's 4-4. That stands. The fight against police brutality is also a fight for the Supreme Court.

KAI WRIGHT: What are the consequences of that ruling?

ELIE MYSTAL: It significantly vitiates the Fourth Amendment which is our best federal protection against police brutality.

KAI WRIGHT: Thank you very much. I've been talking with Jami Floyd who is WNYC's legal editor and senior editor of The Race and Justice Unit and Elie Mystal who is the justice correspondent for The Nation. Thanks to you both. And we will have to leave it there. This has been a special two-hour edition of the United States of Anxiety. We're here each Sunday evening at 6:00 p.m. thinking about what it means to live in a truly multiracial society. You can check out all of our previous work at WNYC.org/anxiety or wherever you get your podcasts. I'm Kai Wright. Thanks for spending this time with us. We'll talk to you next Sunday. The United States of Anxiety is a production of WNYC Studios. Jared Paul makes the podcast version. Kevin Bristow and Matthew Miranda were at the boards for the live show. Our team also includes Carolyn Adams, Emily Botein, Jenny Casas, Marianne McCune, Christopher Werth and Veralyn Williams. Our theme music was written by Hannis Brown and performed by the Outer Borough Brass Band. Karen Frillmann is our executive producer and I am Kai Wright. You can keep in touch with me on Twitter at Kai_Wright. That's K-A-I and Wright like the brothers. And if you can, join us each week Sunday 6:00 p.m. Eastern for the live version of our show streaming on WNYC.org or tell your smart speaker to play WNYC. Till then, thanks for listening. Take care of yourselves.

 

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