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Brian: Brian Lehrer on WNYC. We're in our 30 Issues in 30 Days election series, among other ways that we're covering the race. Today we're up to issue number eight, the supreme court. It was officially one of the topics in last night's debate with the question of whether President Trump and the GOP should move forward in confirming their nominee, Amy Coney Barrett, front and center as the first line of questioning of the night with issues like coverage under the Affordable Care Act and Roe v. Wade and disputes over the election itself that hang in the balance.

Joining me now to talk about the supreme court as an issue in the 2020 presidential race and Amy Coney Barrett as a nominee is Dahlia Lithwick who covers the courts and the law for Slate and hosts their podcast, Amicus. Hi, Dahlia. Welcome back to WNYC. Thank you so much for doing this.

Dahlia: Hello Brian, thanks for having me back.

Brian: Before we even play any clips from the debate relevant to the Supreme Court and Coney Barrett. I don't know if you heard Jonathan Alter just before you on the show. He was employing the democrats to try to get Mitt Romney and a few other Republicans on board to block the nomination for the moment on the premise that she would have to rule inevitably on election cases that come when the disputes arise after election day.

Because the election is already underway, because people are already early voting and mail-in voting in a number of states, that she should have to promise to recuse herself because the issue precedes her taking her time on the court or is in the middle of her confirmation process at the same time. If she doesn't promise to recuse herself from that, then maybe that's the case that the Democrats can make to a few Republicans to hold this off until after the election. Have you heard that before? Do you have an opinion on it and do you think it could work?

Dahlia: I have heard it. I might go one further, Brian, even then maybe Jonathan was willing to go and say that I think that the fact that Trump has explicitly promised over and over that he needs to have her on the court in order to rule on this makes it even more fraught. In other words, what Jonathan describes, which is how is it possible we're going to go through confirming someone while people are already voted, and then she's going to turn around and vote on the election.

I think it's actually seriously aggravated by the fact that Donald Trump again last night, he can't stop himself from saying, "She's going to put a thumb on the scale for me." That makes it even more impossible, not just for the legitimacy of the court and all those things that people like me worry about, it actually makes it impossible for Barrett. It makes it impossible because he's lashed her to this position, whether she takes it or not, is almost immaterial. He has, in fact, compromised her on this. I think for that reason, she's just in an impossible position.

Now, I will say, I don't think anyone is going to get her to pledge to recuse herself. I don't think anyone has the authority to do that. I think she will simply say if she's asked about it, "I can't comment on that." The utility of trying to force a promise from her strikes me as not maybe the way to go. I do think that pressuring people like Mitt Romney and Cory Gardner to say, "Hey, she can't recuse. She's not going to say she's going to recuse since she should recuse. Since Trump is actually forcing her hand on this, isn't it unseemly to press this forward?" I think that is of some use.

Brian: I want to play a clip of Amy Coney Barrett from 2016 since obviously, the issue of Roe versus Wade is going to be one of the centerpieces of these hearings. I think she's going to say that she doesn't have a formal position on it and the republicans will say she hasn't prejudged any such case, but here she is in 2016.

Amy: I don't think that the core case that Roe is co-holding that women have a right to an abortion, I don't think that would change. I think the question of whether people can get very late-term abortions, how many restrictions can be put on clinics? I think that would change.

Brian: What do you make of that? In a way, is she promising to uphold the court ruling and Roe?

Dahlia: I don't think she is. I would note that in the intervening time on the Seventh Circuit, the appeals court that she's been seated on since 2017, she's made several pretty stark rulings in her capacity as appeals court judge, that would chip away at Roe. In fact, she goes further than other judges on her court in some of those instances so we have a little bit more evidence. I think what she's saying is some version of Roe v. Wade doesn't have to be overruled in order to make abortion completely unaccessible for some women.

I think that's been in some sense, the playbook for the last several decades after Planned Parenthood versus Casey in 1992. I think the idea that you write the words, Roe v. Wade is overruled, disappears and we just see a whole host of laws that make it physically impossible for women to actually terminate a pregnancy. It sounds like she's aligning herself with the proposition that we can just keep chipping away, chipping away, chipping away at the core holding of Roe without ever reversing it. I think that is very much in line with what the playbook has been for the last few decades.

Brian: Another big issue that will come before the court we know already very shortly after the election is the constitutionality of the Affordable Care Act. Democrats are centering that issue in their opposition to Amy Coney Barrett. Here's Joe Biden from the debate last night on that.

Joe Biden: The Justice, and I have nothing, I'm not opposed to the Justice, she seems like a very fine person. She's written before she went in the bench, which is her right, that she thinks that Affordable Care Act is not constitutional. The other thing is on the court and if it was struck down, what happens? Women's rights are fundamentally changed. Once again, a woman could be held to pay more money, because she has a pre-existing condition of pregnancy. They were able to charge women more for the same exact procedure a man gets. That ended when we in fact passed the Affordable Care Act. There's 100 million people who have pre-existing conditions, and they'll be taken away as well.

Brian: What do we know about Amy Coney Barrett's position on the Affordable Care Act?

Dahlia: Well, a couple things we know she's written very critically, again, before she was elevated to the Seventh Circuit, very critically about John Roberts position in the original Affordable Care Act case when he sided with the left-wing of the court to uphold the ACA and had that, you remember that it's a tax, and it's not a penalty. She wrote very critically then, she wrote very critically after in a follow-on case. I think it's fair to say just that her general stance would be inclined to invalidate it.

The other thing that I think is interesting about this, is that this is also a little bit of a piece of the playbook, which is we couldn't get the ACA overruled legislatively. That was a major pledge and a promise. Congress couldn't do it, so now the court's going to do it, which is exactly what we saw in DACA. I put this in the bucket of things that could not be done under a majority rule, legislative effort and so it's being done through the backdoor by the courts. I think, in that sense, it's also a harbinger of how a lot of popular laws might be gutted because the judicial branch is doing the gutting.

Brian: If you're just joining us, listeners, we're talking about the supreme court as an issue in the presidential race, including how it came up at last night's debate. Not only that, with Dahlia Lithwick from Slate. If anybody has a question or comment on the topic, 646-435-7280, 646-435-7280, or you can tweet your question or comment @BrianLehrer. I want to play a clip from the debate last night, which was based on the premise that Amy Coney Barrett would get confirmed. It's in the event that she is confirmed. Chris Wallace asked Joe Biden about, "Packing the Supreme Court." Here's one minute of that exchange.

Chris Wallace: If Senate Republicans go ahead and confirm Justice Barrett, there has been talk about ending the filibuster or even packing the court, adding to the nine justices there. You call this a distraction by the president, but in fact, it wasn't brought up by the President, it was brought up by some of your Democratic colleagues in the Congress. My question to you is you have refused in the past to talk about it, are you willing to tell the American people tonight whether or not you will support either ending the filibuster or packing the court?

Joe Biden: Whatever position I take in that that'll become the issue. The issue is the American people should speak. You should go out and vote. You're in voting now. Vote and let your senators know how strongly you feel. Vote now. [crosstalk] Make sure you, in fact, let people know your senators.

President Trump: He doesn't want to answer the question.

Joe Biden: I'm not going to answer the question because the question is-

President Trump: Why wouldn't you answer that question? You want to put a lot of new Supreme Court justices. Radical left.

Joe Biden: Will you shut up, man?

President Trump: Listen, who is on your list, Joe? Who's on your list?

Chris Wallace: Gentlemen, I think we've ended this-

Joe Biden: This is so un-presidential. [crosstalk]

Chris Wallace: We have ended this segment.

Brian: That clip happened to include the, "shut up, man," moment when Trump was saying, "Oh, radical left, radical left." I don't know if that was a planned retort from Biden for him to bring up at the right moment but Biden was supposed to have the floor to be answering the question at that moment and yet he did not answer the question of his position on whether to pack the court, that is to add more than the current number of justices if in fact, Barrett is confirmed and the Democrats win the Senate and the power to do that.

Dahlia: This has been percolating under the surface. We started to hear this conversation even during the primaries where a lot of the nominees were willing to entertain in ways that I think would have been unthinkable five years ago, Brian, the idea of, I don't know that packing the court is the way they describe it. I think they describe it as a systematic court reform and there's a whole bunch of tributaries of that. One is adding seats, which is effectively court packing. I think they're talking about doing that in the lower courts.

Another is stripping jurisdictions, saying the Supreme Court simply can't hear, for instance, voting rights cases. Another is term limits for judges. There's a whole bunch of plans out there in the academy that went largely ignored. I think that what you're starting to hear now is that Democrats who are looking at what's happening at the court, I think that they would say that GOP has lost the popular vote, six of the last seven elections, that they've appointed 15 out of the last 19 justices, now they won 16 out of the last 20, and that this is just not in step with how a majority rule works.

Therefore, in order to change the judiciary, which let's remember, even if Donald Trump loses, you're going to have a 6-3 majority at the court for decades. I think this is a way of trying to say to Joe Biden, make us a promise that if you win and if the Dems take the Senate, structural reform is on the table. Now, he's been very careful throughout the primary and again, last night to say, "I'm not going to get baited into having a conversation like that."

I think that's probably smart politics, but I think that when, for instance, Nancy Pelosi and Chuck Schumer asked that question, they are quick to say, "Oh yes, that's on the table. It's all on the table. We are not going to let minority rule from a 6-3 court for any popularly passed legislation." I think it's very much in the ether, again in a way that surprises me. I think that Joe Biden is probably pretty smart to say, "If you think I'm going to get distracted into having a fight about FDR in court packing, I'm not going to do it. Oh, and shut up, man." There you go.

Brian: There you go. Maybe smart politically, but it doesn't tell the public that he's open to it or not open to it. Let's go one step deeper on that as to what "court packing" could actually accomplish and whether it would further politicize the court or as it looks to me, potentially depoliticize the court. When Elizabeth Warren was in the race, she said, "It's not just about expansion. It's about de politicizing the Supreme Court." Pete Buttigieg had one of the central tenants of his campaign.

The particular idea of having 15 justices with Democrats appointing five, Republicans appointing five and then those justices appointing the other five. The point being as Buttigieg was arguing anyway to remove this whole decades long and I don't know, maybe our country's history long process of getting a justice who supports one side's politics or the other side's politics or one side's view of the constitution versus the other side's view of the constitution over and over again and having it keep being about that when the whole point is supposed to be that the judicial branch is apolitical. What do you think about something like the Buttigieg plan?

Dahlia: I actually think the 5-5-5 plan is pretty interesting. I think it again, surfaced in the last very little while from academics who thought that some of the more overt things were talking about jurisdiction stripping or term limits, which some of this would require constitutional amendments. Court packing, as we know is just incredibly inflammatory and so this is a milder version of it.

I will say, given what I've seen happen in the all-out bloody knuckle warfare over the courts, it is really hard to imagine, Federalist society poured more than $250 million in undisclosed donations into the races around the Gorsuch seat and the Kavanaugh seat. There is so much dark money we don't know where it came from, sloshing around these judicial seats that I actually think the predicate to any people association, has to be to get the money out or at least figure out where the money's coming from, Brian, because I think we're in an arms war right now.

The idea that you could have five justices on the right and five justices on the left, calmly and politely pick neutral judges in a climate in which I think we are really looking at an arms war to overmaster and overtake the court for generation. It just feels so aspirational to me. I would say another thought is to just really start to reckon with the fact that the Supreme Court shouldn't be the last resort for every single hot button issue.

In other words, I don't think the framers intended for the courts to be the last step arbitrators for every single hot button issue in the country. Maybe instead of getting used to the idea of packing the court or having the 5-5-5 system, we need to get used to the idea that the court cannot consistently impose this backward and very freighted with dark money, minority rule on the country, and how do we fix that by bolstering the other branches of government?

Brian: Julian Hastings, you're on WNYC. Hi Julie. Julie is talking to somebody else. We'll try to get back to her. Andrew in Jersey City, you're on WNYC. Hello, Andrew.

Andrew: Hi. How's it going?

Brian: All right.

Andrew: My question is basically I know that the idea that Trump had was he wanted to get as many justices as he could so were he to claim this election was a fraud or that the Democrats stole the election, that Barrett would rule in his favor, but what is exactly the way forward with that? What is the constitutionality of that? Why is that a political issue and what is the precedent that Barrett has that we think that she would vote that way? Excuse me.

Brian: Great question, Dahlia.

Dahlia: All good questions. I will say, Brian, one of the things I've been poking around in Barrett's three-year history on the appeals courts and we don't actually have a great sense of what she might do in an election law case. It's one of the places where she's a bit of a cipher. It's also the peril of having 48-year-old Supreme Court nominees who've got very, very brief stints on the bench, is that we don't know too much about on the merits, how she thinks about election law or not much that I think is predictive.

Obviously, the precedent is Bush v. Gore, the 2000 election where the US Supreme Court by a completely partisan 5-4 political margin, halted the vote counting, the recounting in Florida. I think that's where this gets really tricky, there are over 200 election lawsuits that are percolating all around the country. I can't keep track of them probably in the time since Andrew spoken and I'm speaking now, two more have been filed.

We are struggling, I think, to understand whether the issue is going to be the secrecy ballots for the mail-in ballots in Pennsylvania, the Trump administration or the Trump campaign I'm sorry, is asking for those envelopes. If they don't come in that privacy envelope, for them all to be tossed. We're seeing litigation happening around the country that tries to expand voting because of COVID. All of these lawsuits seated all around the country, I think 45 of the 50 states, currently has at least one such lawsuit. Any one of those could percolate up to the Supreme Court. I think if it's within what's called the margin of litigation, the lawyers are going to be on the ground and we're going to see some version of what we saw in 2000 in Florida.

We don't know A, where it's coming from, what it's going to be. We also don't know, which goes to Andrew's question, what a potential Justice Barrett might rule because, again, we have no idea what that case is. The one thing I think we can say with some confidence, and this is worrying, is that even when it was a 5-4 court, we know that this 5-4 court has been pretty hostile to changing the voting rules because of COVID, pretty hostile. You'll remember the Wisconsin primary to voting by mail even in a pandemic.

I think that the John Roberts Five with now possibly the Amy Coney Barrett six is just predisposed to shrinking the franchise rather than expanding it in a time where people are afraid to vote in person and that is worrying. Beyond that, how that general disposition maps on to any number of cases is really hard to say and, again, I think in some sense, it's unfortunate that we just don't know enough about a Judge Barrett to predict in any way how she thinks about some of these issues.

Brian: Dahlia Lithwick, who covers courts and the law for Slate and hosts the podcast, Amicus, thank you so much for coming on, Dahlia.

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