Announcer: Listener-supported WNYC Studios.
Kai Wright: Hey, everybody. One of the roles public media plays is to offer a gathering place to process big historic moments. 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 turned the unsettling business of thinking about what her death means for the Supreme Court right now.
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. 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.
For that, I'm joined by two of my favorite legal scholars and friends of this show, Jami Floyd is the WNYC's legal editor as well as senior editor of our Race and Justice unit. Jami, welcome.
Jami Floyd: Hello.
Kai: Elie Mystal is the Justice Correspondent for The Nation magazine and Alfred Knobler Fellow of Type Media Center and the former executive director of Above the Law. Elie, welcome.
Elie Mystal: Hi, guys?
Kai: I want to hear each of your own personal reflections and experiences with Justice Ginsburg. I know you each have them. Jami, I want to start with you. You knew Justice Ginsburg or at least met her on several occasions, we've been asking listeners talk to us about the justice's impact on their lives and careers, what about you, how did she inspire you?
Jami: 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 DC, and on one occasion here in New York. 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 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 by guidance, counselors, and teachers, especially as a Black child, Black girl, the very people who were supposed to believe in us, women were just not supposed to grow up and become attorneys.
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. 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. 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. Why am I telling you all of this Kai? Because when we say she was a trailblazer, she really was a trailblazer for the rest of us, women who practice law.
You get to Harvard where Elie went, you 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 US 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 US Supreme court, as easily as we comfortably see nine men sitting there. She was a true champion of gender equality, and that is why it was my honor and privilege to know this woman.
Kai: Well, thank you for that, Jami, that is inspiring for me to listen to. Elie, you also had a run-in with Justice Ginsburg by way of Justice Antonin Scalia. Can you tell that story quickly?
Elie: Yes. I never met her personally but I have that her friend and my enemy Antonin Scalia when I was in high school, I went to Friends Academy, which some people in the greater New York area will know I was on the mock trial team. We went to nationals or whatever and for me, which we lost, Antonin Scalia was the guest judge. Then afterwards, he gave a big talk, and then he took questions from the students, some 15, 16 years old. In high school, I asked my question and that's all I remember, I was either the only Black person to ask a question, or maybe the first Black students ask a question. My question was, "Justice Scalia, how do you square your--" I didn't know what it was called at that time, originalism exactly, I think I called it founding intent, "how do you square your founding intent theory with a decision like Brown v. Board of Education where we had to overturn the intents of the constitutional founders?"
He looked at me. Of course, this important guy and this is a room full of high school students so he laughs everybody laughs, and he hasn't even answered how I was wrong because the 14th amendment is actually controlling and that's why Brown v. Board of Ed. was good, but Plessy v. Ferguson which is the case allowing the segregation. That was the case that was against the original intent of the founders. He told me that you need to learn more about my own history and I laughed again and then everybody laughed. I sat down quite embarrassed as one might be. I don't know how she found out about this, 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 found out about it and she got a message to my mock trial teacher, "Tell that kid, keep dissenting." Which was nice to hear. It was a reminder at an impressionable time in my life that just because somebody in authority says you're wrong, doesn't mean you're wrong and it doesn't mean that you have to accept that authority on critically and on faith. It was a nice reminder for me. You keep trying, don't take their answers on spec and on faith.
Kai: Jami, can I ask you, as earlier in the show, I was talking to Emily Bassline about the way in which Ruth Bader Ginsburg's jurisprudence in her work showed up in the cross-section between race and gender. In your story, you talked about being specifically, not just a girl, but a Black girl watching. Thinking about the intersection of race and gender, how did you receive RBG's work and her feminism?
Jami: Well, 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. To crib from Hillary Clinton for a moment, but women's rights are human rights and human rights are women's rights. 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 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. Women should simply be treated like everyone else. We should all be equal.
Once women are equal in the workplace, men will be equal in the home, Kai.
That was really her thinking. 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 preach on but I need not because we can simply read her brilliant work.
Kai: Elie, I want to ask you about something you wrote in your immediate response to Justice Ginsburg's death, you cite this quote she has about dissenting. You have been a fan of the latter stages of her career where she became an artful dissenter. Tell me about the way you think about her and dessent and what purpose it plays?
Elie: You don't really 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. If you think about it, you lost the case. Why are we listening to what you say? [laughs] You lost the case, history passed you by and now you're writing this 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. The point of a dissent is to move the conversation forward for other generations. I think now the modern term is we call it the Overton window. When things are 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 center is a point is, whatever their view of the law is. Ginsburg was brilliant at doing that, at really setting not just the legal underpinnings for her arguments, but the moral underpinnings for her argument so that even in defeat, somebody can go years later read that, understand that there was a different way to go.
The other point of it is quite-- without getting too much into the legal weeds, you have to remember that our common law system as it's called works on precedent. It works on saying, "We decided this in that case and so we should decide the same thing in this case." A really good dissent lays the groundwork for a future lawyer or advocate to say like, "No, no, no, no, you decided it in that case for this reason but the defense says in this situation, that's now right in front of us right now, you shouldn't decide it that way." It really does have an effect within our common law system and nobody at least in modern times did it as well and as eloquently and as importantly as RBG did.
Kai: 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, 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? Its an interesting idea that what you're doing is you're speaking to the future.
Jami: She said, the courts-- [crosstalk]
Kai: Oh, sorry, go ahead, Jami.
Jami: I was just going to quote RBG herself, "Dissent speak to a future age. They are writing not for today, but for tomorrow."
Elie: The way you lose is sometime critically important. I think in our society it's so winner take all. It's so you're number one or you're a loser and the law doesn't work that way and RBG didn't work that way. The way you go down and the stances you take while fighting sometimes impossible battles matters a great deal and then it's something that future generations can always go back and see because on a lot of these issues 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. I don't want to go for Martin Luther King, the long arc of history, but the wheel will come back around.
Kai: 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 with our Justice Ruth Bader Ginsburg. I'm speaking with Elie Mystal of The Nation and WNYC's legal editor, Jami Floyd and we will be right back.
Speaker 5: As we grapple with the big question surrounding our own election, it's imperative that we look at how Trump and figures like him rose to power. They seem to have one thing in common, control of their own narrative. Hosted by legendary comedian Whitney Cummings, Bunga Bunga tells the incredible, true story of how former prime minister Silvio Berlusconi used his massive media empire to hypnotize the Italian people not only to vote him into office but to keep him there for almost two decades, Bunga Bunga is available on Apple podcasts or you can listen early and ad-free by joining Wondery Plus in the Wondery app.
Kai: Jami and Elie, let's get into the nitty-gritty here. Joe Biden and many Democrats have in the last 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. Is that true? Is health care likely to be before the court? Tell us about it, Jami.
Jami: It is before the court. There are a few things I have to say, [laughs] let me go, Kai, let me go. First of all, I have a new title at New York Public Radio and it's actually Race and Justice Editor. I bring that up not because I care about titles, but because I care about race and justice. I had pulled actually a Shelby County v. Holder because I care about race and justice. The case you were asking us about right before we went to the break, I actually think that maybe her most important dissent that she wrote-- I had not pulled the language that you were asking us about. I was hunting around for it as you were asking but she starts out by saying, "I dissent." Flat out, "I dissent," but then she says 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. 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 as I can do. There is a case actually on the DACA. We already know some of the cases for the fall and the biggest case so far in my view, Elie, 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? We're back before the US Supreme Court.
Kai: We're back to that which was resolved already. Didn't we already resolve?
Jami: Well, yes, I remember Justice Roberts, so 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 a nifty way around it that the chief thought he'd come to and now we're back before the court again. Yes, and we're going to have an eight-person Supreme court. What's going to happen? I don't know, Elie Mystal?
Elie: Here's the real problem. When there's a tie, the lower court ruling stands. We learned this during the Merrick Garland fiasco, when McConnell was refusing to see the nominee. When there was 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 by a 5-4 decision, but without Ginsburg, we don't get five so that even if Roberts decides to uphold the constitutionality of the individual mandate, if the four archconservatives say that it's unconstitutional and we have a tie, well, then the lower court ruling stands and the lower court ruling says the individual mandate is unconstitutional.
Kai: That's where we're at right now, is the--
Elie: 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: That's the case that's going to be before the court on November 10th?
Elie: That case is being argued on November 10th. 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 if all these other contingencies come into play a chance to replace RBG with another justice, Roberts might decide to hold the case. If he doesn't, if he just ruled on it with the eight members he has in front of him and it comes down for 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 it don't look good. We should understand the ACA as in critical condition as of right now.
Kai: Joe Biden is not crying wolf. All right. We have questions coming in for you two. Let's get to it, Claire in Hartsdale, Newyork. Claire, welcome to WNYC.
Claire: Thank you. Hi. You're saying that they can still be in session when they're not in-person because I thought maybe that could prevent them from--
Jami: They went remote in the spring and they will be remote in the fall. In fact, 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: Yes, Jami and yes, Claire, they've already announced that they're going to do these arguments in October remote-only over the phone. In terms of how that plays--
Claire: Another question was, 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. Can't they be held for those statements? Also, there's quite a few Republicans that might actually agree not to vote on that yes, like Mitt Romney and maybe Susan Collins because she's so critically possibly going to lose.
Jami: Those are two separate questions, you want to pose them separately, Kai because there's one political question and then one is a political question.
Kai: Where do we sit? Where we stand right now is that at least Susan Collins and Lisa Murkowski have made statements that suggest that they will not vote-- 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 is set, is that your understanding?
Jami: First let me say I think we should not engage in as much of the horse-trading as we normally do when we're talking about this process. 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 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 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. John Adams said, "Democracy never lasts long. It wasted, it exhausts, it murders itself." He said, "I never knew a democracy that didn't eventually commit suicide." 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 Republican senators not Democrats, they're on one side, but there are a few who might take John Adams quote to heart, to heed. Elie, if that happens, then where are we with the process?
Elie: 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 upper 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. The hypocrisy that's coming out of the Republican caucus right now simply cannot stand, 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. 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. 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. 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 November 4th and January 20th when the new president would take office. That's a long period of time where all kinds of electorial confirmation shenanigans could well play out.
I think we have to be 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: Let me stop you there because I think we have a call about that one second. Mary in Fairfield County, Connecticut, Mary, welcome to WNYC, I think this is precisely what you want to talk about.
Mary: Hi, there. I think my first question was just answered, which is, is there any chance that you would increase the number of justices? You just created a little scenario that made it clear that it could be a real possibility. My second question is also about--
Jami: I just wanted to tell Mary that we had started in this country with just six Supreme Court justices. I just wanted to give Mary that historical context. We've already grown from six to nine, so it's not unheard of. Do go on, Mary.
Mary: I understand. This is a very tense political moment and I'm interested in all sorts of aspects of this. The other thing that's 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 a term-limit Supreme Court justices? 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: Thank you for that question, Mary. We have two sets of questions there. I do want to ask about what is the logistics of expanding the court and then secondly, this question of term limits. Each of you can take one. Elie, pick your answer.
Elie: I'll do the logistics of expanding because the bottom line and this blows people's minds when I tell them this is actually a much easier constitutional argument to expand the number of justices on the Supreme Court than it is two-term limit them because the constitution itself, Article III of the constitution says that a Supreme Court justice self-serve for life. It says nothing about how many there have 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 get 51 votes in the Senate if you abolish the filibuster.
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: Jami, what about this idea of term limiting Supreme Court justices?
Jami: 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 have 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. When look at state court judges, it can be very different because they're seeking re-election in some places which require fundraising, all kinds of things.
I think the independence that you get with a life appointment is fine. 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 in to weigh in on this fascinating esoteric of constitutional law.
Elie: Quite frankly 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 certain 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. Do you want to be the person that goes into John Roberts's house and tell some actually he needs to leave in 18 years? 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. 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 and to make the Supreme Court look more like the lower circuit courts in our country I can do that by a simple act of legislation, when I go into the determinant land, I have to really worry about extending all of that political energy and still getting constitutionally smacked down by the various Supreme Court that I am trying to limit somewhere down the road.
Kai: Quickly, the history of this. You said that that 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?
Elie: There was FDR.
Jami: Yes, there certainly was a 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: I just want to clarify. This was FDR in the '40s set-up this idea and Congress threw it back in his face, that's the short story?
Jami: Pretty much, 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. 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 first 1790 and then let's say 1820. 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. 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 v. Ferguson, Korematsu '44, not that long ago, Bowers v. Hardwick, Bush versus Gore.
I think many people would agree not a good decision. Generally, we have to evolve and if that includes structural, we're all talking about structural change in our country. 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: 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: What's up, Steve?
Steve: Hi, my question is a lot of airtime is being 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: I'm generally defensive of the Democrats here for two reasons. Trust me if I'm usually not the person that's the defending the Democrats, but I am here for two reasons. One, Schumer's not in the majority. Schumer didn't have power to stop McConnell, and really it was read at that point to stop McConnell from blocking Merrick Garland. He doesn't have power to stop McConnell from pushing through whoever he's going to push through now. You're fundamentally fighting from a position of extreme weakness. 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 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, it's not like the 2016 senators have all retired and gone away and gone to a farm upstate, these are the same people. When those same people then react to hypocritically to 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: 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. 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. I'm with Elie on this, I want them to really try and fight fire with fire if you want to use 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: I want to move to voting rights because we talked earlier about-
Elie: What are those?
Kai: -the Voting Rights Act.
I know that it's near and dear to both of your hearts, but in terms of thinking about, we said, healthcare is something, that's an immediate question now with the state of the court, what about voting? As I understand it, there's huge numbers of cases currently being litigated that are likely headed to the Supreme Court for this current election. What is the state of play there?
Jami: I see actually a number of issues happening here. 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 v. Gore. We have 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 decision would stand. 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, and all the key state about how this election is rolling out even before we get to a dispute over its outcome.
Then there's the third issue over the confirmation itself and lots of other things too. Obviously so many key issues related to the presidential election, the down-ballot elections, E-elections voting rights.
Kai: 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 an absentee ballot and that there's just an enormous amount of litigation going on because of this. Elie, going to you with this.
Elie: Right now voting rights advocates are our 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 like you and another random person validate your signature or another Republic validate your signature. These are the kinds of voter suppression shenanigans that Republicans play at a very high level. When we talk about the upcoming election, I would just say that this is not an issue, we're losing, RBG has really changed the state of play because you had never had Roberts. You had never had Roberts.
There was a great piece that came out last week in Vox, I encouraged people to go read it by Ian Millhiser that just goes through John Roberts, his 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 got us the Voting Rights Act. 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 jurist, the fed SOC type of people that Republicans appoint to courts, together more than any other issue. I understand that I live in a world where abortion is a thing. It is the voting rights, it's their anticipathy to voting rights that holds that caucus together to the point where one of the people, most likely the leader in the clubhouse to replace RBG from the Republican side, her pushback from other conservatives is that they're not sure if she's against voting rights enough. That's how deep this goes. Regardless of RBG, this was a thing that Robert was always going to rule against the franchise for people. It's a huge problem as we go into another what will certainly be a very close election.
Jami: 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. 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. This is what we're walking into, and most certainly going to wind up in the US Supreme Court. One of these many cases and probably several of them. That's what we're looking at heading toward well-past November 3rd, well into December, I would pose it.
Kai: Lightning round because we literally have like two minutes here. One, I'm get another question that 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: The end being November 3rd?
Kai: Yes, between now and if he were to perceivably lose the election?
Elie: Yes. [crosstalk]
Jami: No, I say no.
Elie: If she can try, brilliant. I'm with the 100% Supreme Court. Let's go, Let's do it.
Jami: I say he can do it as a procedural matter. He doesn't have the time to pull it off between now. If the end is 2024, yes. Between now and January 20th, can't pull it off.
Kai: Very, very quickly each of you, we've talked about healthcare, we've talked about voting rights, whatever we talked about that's like really going to be crucial here now with these new cuts to the court. Jami, quickly 30 seconds.
Jami: Well, larger civil rights and civil liberty is 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. Of course, we do care about your life and liberty on the street and 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: Torres v Madrid has been 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 10th Circuit said that she could not sue 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, didn't actually incapacitate her. That's a 10th Circuit rule that's 44 that stands the fight against police brutality is also a fight for the Supreme Court.
Kai: What are the consequences of that ruling?
Elie: It significantly vitiates the Fourth Amendment which is our best federal protection against police brutality.
Kai: 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. 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 PM. 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 podcast. I'm Kai Wright, thanks for spending this time with us. We'll talk to you next Sunday.
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 shows. 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 Outer Borough Brass Band. Karen Frillmann is our executive producer. I am Kai Wright. You can keep in touch with me on twitter at Kai_Wright@KAI and Wright like the brothers. If you can, join us each week Sunday at 6:00 PM Eastern for the live version of our show streaming on wnyc.org, or tell your smart speaker to play WNYC. Until then, thanks for listening.
New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.