[music]

Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning everyone. That was a great story at the end of the BBC News Hour there. For those of you who've been listening on our FM station about SpaceX. Government subsidized private space travel. If you heard yesterday's show, you know why I said that. If not, never mind. Meanwhile, we continue to be in a period when large amounts of the news of the day are happening in court.

We were all expecting the Supreme Court's decision yesterday on the temporary or permanent fate of the abortion pill, mifepristone, and it came down as even more temporary than anyone expected. Two days, the court will decide again tomorrow, we'll explain. The Supreme Court also heard arguments this week on where the line is between free speech criticism of someone and stalking, or illegally threatening them.

There's also a supreme mystery about the Supreme Court right now. Why are they so behind where they usually are this time of year and handing down decisions from cases they've heard this term? Also, the Clarence Thomas Financial non-disclosure scandal continues to expand with new reporting by ProPublica this week that the Republican mega-donor, Donor Harlan Crow, bought three properties from Justice Thomas and his family nine years ago, that the justice never disclosed and that Crow has led Thomas's mother live there rent free ever since, which apparently Thomas also didn't disclose. That's on top of the 20 years of gifts and trips from Crow that ProPublica recently reported that Thomas hasn't disclosed.

CNN says some of Crow's $10 million in political spending has been on efforts to move the judiciary to the rights. CNN reports that Justice Thomas says he'll amend his disclosure form to reflect the real estate sale. Now, and as if that's not enough Supreme Court news, the New York Times reports that a coalition of 30 progressive organizations, some of them new to the topic, is launching a new push to change the Supreme Court structurally like adding justices or imposing term limits.

Meanwhile, the Fox News Dominion voting machine settlement is not the end of the story for Fox being held accountable for its role in Donald Trump's big lie about the 2020 election being stolen, even when Fox allegedly knew that things they were airing were false. Another voting machine company, Smartmatic, says it will continue to pursue its defamation suit against several Fox News hosts.

There are also the multiple legal developments in the indictment of Donald Trump and House Judiciary Committee investigation of the Manhattan DA who indicted him. I could go on, but I'm sure you'd rather listen to our guest, Jennifer Rodgers, adjunct professor of clinical law at the NYU School of Law, Lecturer in Law at Columbia University's Law School, a former assistant US attorney in Manhattan, and a CNN legal analyst. Jennifer, thanks for coming on. Good to have you back on WNYC.

Jennifer Rodgers: Thanks, Brian. Good to talk to you, man. We need more time today. I think given all the issues that you just listed.

Brian Lehrer: I know we're going to have to go four hours today.

Jennifer Rodgers: Sure.

Brian Lehrer: I see among your courses at NYU was a government anti-corruption seminar and you supervised students doing government anti-corruption externships. Would you call the Clarence Thomas non-disclosures corrupt or corruption?

Jennifer Rodgers: Well, we've talked about that in my class this semester. It certainly falls within the rubric of government corruption. I wouldn't call it corruption in a criminal legal sense, meaning I don't think he's criminally chargeable for what we've learned but what I teach about and talk about in terms of government ethics is what you want from your public servants and public officials. Some of that is transparency.

Some of that is making sure that you don't have conflicts of interest, either technical ones that fall within the definition of the law, or more vague ones. You don't want people influenced in indirect ways either. Definitely within the way that I think about government ethics and corruption, what he has done is very problematic and I do hope that we get some solution to it in the form of some oversight or at least stricter disclosure requirements going forward.

Brian Lehrer: Here's some of the Thomas defense as I've read it. He says, "The 20 years of gifts from Harlan Crow were because Crow has been a close personal friend, much more than some political or professional relationship." He didn't think disclosure was necessary when his very rich friend was taking him on trips and giving him stuff.

About the real estate purchase, Thomas says he lost money on the deal, and I've read that any decision Thomas has been a part of on issues related to Crow's causes were no different than the other conservatives on the court. How tainted can we say he really is? He's just a conservative guy with conservative friends, who makes mainstream conservative decisions on issues that his conservative friends care about. [chuckles] That would be the defense. How much of that would you agree with or refute?

Jennifer Rodgers: That argument is the same one that is always made in these circumstances. If you're a legislator and you take lots of money from people whose interests align with yours then you say, "Well, listen, I don't vote that way because they gave me suitcases full of money. I vote that way because that's how I wanna vote, and they support me because they like the way that I vote. Even though I make my decisions based on only my own thoughts, not the money that they're giving me," but we don't buy that. We still want to know, at least as far as disclosing what people are getting from lobbyists and other special interests. That's all part of how government's supposed to work.

You can certainly say that no one is influencing you and that these gifts and so on are not a bribe, but we at least want to know about them so that we can make our own decisions and draw our own conclusions as citizens. That's really where this falls down here. Maybe it's true that Clarence Thomas isn't influenced by being taken on lots of yachts and luxury travel and getting gifts and so on, but at minimum, you at least need the transparency of the disclosures so that we can see what's going on.

That's really been the black hole as the Supreme Court just hasn't really considered themselves to be accountable to these laws. Even recently Chief Justice Roberts says, "Well, it's not at all clear that Congress has the authority to impose requirements on us as the Supreme Court." I think that they should have binding disclosure requirements. Supreme Court confidence as far as the public's confidence in the Supreme Court being apolitical is very, very low now. It's been diminishing in recent years. I think it would really help for them to be technically in a binding way subject to these disclosure requirements and to the requirements that there are some things that they can't take limits on gifts and the like.

Brian Lehrer: One thing I've been learning about this week following the Supreme Court or these Clarence Thomas accountability developments is that apparently, even if the public does Judge Thomas unfit for the court anymore, based on these non-disclosures, apparently there's no formal accountability mechanism. To boot him off the court or sanction him as summer calling for a short of impeachment in trial in Congress, which is not going to happen. Is that right?

Jennifer Rodgers: Yes, that's right. That's one of the pieces of pending legislation right now is to put together some ethics oversight for the court. Again, it's not clear that if that were challenged that the court itself would find that that's constitutional, that's one of the things that Congress is trying to do in the House right now. It's a difficult pickle to be in that they determine what they want to do but it is true that they don't have that oversight.

Unlike legislators who at least are elected directly by the people, this is so many steps removed. You would have to have such an uprising that people would effectively force their elected officials, their legislators put so much pressure on them that they would impeach and so all those steps removed, it just seems they're right. That's never going to happen here.

Brian Lehrer: Partly because of the Thomas scandal, there's this new push by a coalition of 30 progressive groups to impose term limits on justices or expand the court or maybe make other structural changes. Are you in favor of anything like that?

Jennifer Rodgers: It's so hard. I think that the court as an institution and our nation would be benefited by some changes like that. I just think it's impossible to do in our current political environment because the groups pushing for that now, and the people pushing for that now are people who want to change the constitution of this court and that's because of what this court is doing because it's six to three conservative majority.

It's just so hard to separate from the politics of it. If you could strip that away, these changes if they were made, would be lasting presumably, right until you got the will to change them again at least. I do think there would be benefits to the institution, particularly term limits. I understand the benefits of lifetime tenure in terms of trying to remove that influence and enhance independence, but at some point, term limits I think would be a good idea. I just don't think it's going to happen because it does seem to be politicized at the moment that we're in, in our country. It's a bad idea to make decisions like that based on the politics of things.

Brian Lehrer: Yes. I guess conservatives and other independents, or I should say conservatives and others, including some independents, and maybe you just kind of were indicating this yourself, we'll look at the idea of any of these changes and say, "That just looks like sour grapes when the current court majority is so far to the right because three vacancies happened to come up when Trump was president." You want more liberal Supreme Court justices, elect more Democratic presidents and Democratic Senate majorities to confirm their nominees. That's the check and balance in the system and it's robust. The argument goes. Sounds like you largely agree with that. No?

Jennifer Rodgers: Yes, I think I do. Also, where does it end? Term limits is one thing, you could impose term limits, but if you talk about adding seats to the court, what happens when the shoes on the other foot and you have a Democratic majority on the court, and progressives are thrilled about the way things are going and conservatives are not, and then you get a Republican Congress in there, and then they want to switch it. They want to add even more seats. I just feel like where does this end if you start adding seats to the court? Is this another problem as well?

Brian Lehrer: One more structural question on how we perceive the Supreme Court generally questioned before we move on to the Metro pre-stone case. Some progressives say the Supreme Court has too much power, compared to the elected branches of government. Now, you can find any number of op-eds and commentaries and stuff online about that, but I was thinking how at the same time, there's this outrage in Israel over Netanyahu's attempt to weaken their Supreme Court and keep more of the power with the parliament.

Critics call that too much power without a strong independent judiciary to keep a check on the tyranny of the majority, which can occur in a purely politicized, even electoral democracy. I realized their system is different than ours with the way their parliament is structured and all of that, but is it just whose ox is being gored? Or is there some universal principle you could articulate as a law professor, former US Attorney, Assistant US Attorney about how much power a Supreme Court should have relative to the political majority of the moment?

Jennifer Rodgers: That's such a tough question. I feel like ever since the founding of our nation, people have been toying with the idea of whether the founders got it right with the checks and balances among the branches. There are definitely times where you think that one or the other of the branches has too much authority, some of the things that happened during the Trump administration, and some of the pushes to make the executive even more powerful seem to be trying to skew that in a way that favored the executive, which was problematic.

I just don't know after all the thought that's been given to this that I have any better system than we came up with. I don't know that I would mess around with that. The real problem currently is that the Supreme Court has abandoned some of its principles. It's not that they have too much power, it's that I think at the current time they're misusing it because of the way that they're ignoring their own precedent.

The way it's set up is that, over time, as the Supreme Court builds precedent, if they adhere to that, you're unlikely to have these big shifts back and forth with ideology changing on the court because they're stuck with what they've done before historically. When they veer away from that, which they did last year with the Dobbs decision, overruling Roe v. Wade, that's where you really have problems. I don't know that as a branch, they have too much power when they're doing their job properly, but when they move away from that, that's where I think things get wonky.

Brian Lehrer: Listeners, we have the privilege of former Assistant US Attorney and current law school prof at NYU and Columbia. You do teach at both places, right?

Jennifer Rodgers: I do. I'm at Columbia in the fall and NYU in spring.

Brian Lehrer: It's like on the Mets and the Yankees at the same time. I thought that was impossible. Anyway, and CNN commentator, Jennifer Rodgers, you don't also do it on MSNBC. No, no, I guess not.

Jennifer Rodgers: No, that's it.

Brian Lehrer: Jennifer Rodgers to ask questions of, we have that privilege. The lines are open at 212-433-WNYC, 212-433-9692. Asked about the Abortion Pill case, the Clarence Thomas non-disclosure case, the cost to reform the court structurally, the Trump indictment, any of those. Do not ask for personal legal advice, that would be abusing your access, listeners, but on any of those other things, 212-433-WNYC, 212-433-9692, and poof our lines are full.

You think people are interested in this stuff? Let's talk about the Supreme Court and the abortion pill mifepristone. The ruling everyone was anticipating yesterday turned out to be simply the court giving itself two more days to decide the immediate status of the drug. It's confusing. Where does this stand between now and tomorrow?

Jennifer Rodgers: Well, I wish I knew. We all expected something last night, so something's happening. Either they can't come to a consensus yet, they can't get five votes to do any one thing, and they're still working on that. Or it may be that they do have five votes at least, to do something definitive, and it's just that people are writing. The justices will sometimes write in dissent if they want to give their views. That is also what may be happening, and they may have five votes to do something, but there's some written dissents coming. We're waiting to see.

I hope that the decision is to put a full stay on the Judge Kacsmaryk ruling, which would then allow mifepristone to be as accessible as it always has been. In other words, nothing would change while the litigation proceeds. That's what I'm hoping for, but with this court and its hostility towards abortion rights, who knows?

Brian Lehrer: Yes. From what I read, the court has a pretty long menu of options for tomorrow's decision. They can keep the drug fully available while the underlying case of added status is heard. They can keep it partially available, ruling back some expansions of availability from recent years, or they could even decide the whole case against its continued availability is bonk after 23 years on the market and widespread legal use around the world and the anti-abortion group that brought the suit doesn't even have standing because they're not directly affected. I think that's not even the whole list of options, everything you said plus some of those that I added. How does the court decide an intense case like this was such immediate ramifications?

Jennifer Rodgers: Well, the first thing to remember is that this is all about the preliminary injunction. The lawsuit was filed in Texas to basically take it off the market to say it should never been approved in the first place, it's not safe, and it shouldn't be available at all. While that litigation is pending, there's all this discovery, there'll be a trial, these things take a long time, the plaintiffs also moved for an injunction saying, it's so harmful to have this drug on the market, that it should be banned right now, while the litigation is pending.

That's the issue that is currently up at the Supreme Court. They have to decide it without the benefit of all the information that will come in through discovery and the trial process.

At this stage, it's really about a balancing of the harms, who will be harmed by the drugs staying in place and things staying as they have been for 23 years, and who will be harmed if that doesn't happen. If you can take it off the market, is that better?

Who will be harmed if it continues to be accessible, who will be harmed if it's taken off? That's really what the court is having to decide. The answer seems obvious to me. The notion that taking a drug off the market that has been available and safely and effectively used for so many years by women across the country, it's the most common way to procure an abortion, but it's also used in miscarriages and other cases where the uterus needs to be evacuated and it's safely done.

It seems to me the harms are very clearly on the side of taking it off the market and making it unavailable. This seems to me to be an easy call on the merits. That's why I'm hoping that they will do the right thing while the litigation plays out, but yes, there are all sorts of options, they can go with what Kacsmaryk decided, which is that it is not available as of now, they can affirm what the Fifth Circuit did, which is to say, it's too late to question the drugs' availability way back in the day. You have to say it's still available but only as it existed in 2015. In other words, the expansions that happened in 2016 and beyond, are no longer good or they could do something else.

The other issue is, of course, we have this contradictory ruling coming out of Washington from Judge Rice, which says that Misoprostol must remain available, as it is today in the plaintiff states in the District of Columbia that sued to ensure its continued availability. If the court does something that says that Misoprostol is unavailable, either partially or entirely, you'll then have a conflicting ruling out of Washington, which is not technically before the court, but in terms of what chaos will be created by a ruling, the court needs to be considering that.

Brain Lehrer: Vanessa in Westchester wants to make the case for structural reform. Vanessa, you're on WNYC with Jennifer Rodgers. Hi.

Vanessa: Thank you for taking the call. Yes, I just have to question the assertion that our political system right now or going forward is really capable of acting as a check and balance on the court. Since Citizens United in 2010, our political system has been enormously distorted by unaccountable oligarchs and plutocrats and it is a completely different anti-democratic system.

Then there are the gerrymandering opinions, which have essentially eliminated and of course, the destruction of Shelby County, which offered the protection of some review before voting suppression measures were instituted. Then, of course, we have examples like that. You talked about Trump having three opportunities. Well, that was not by legitimate chance, was it? Look at what happened to Merrick Garland and look at the incredible inconsistency of rushing through Amy Coney Barrett, but what's her name?

Brain Lehrer: Barrett.

Vanessa: Amy Coney after saying it was impossible to confirm Merrick Garland. All of these are pointing in the direction of a court that is no longer responsive to or can no longer be counterbalanced by legitimate political operation, it seems to me. I'm not sure what the structural change is that is necessary. I agree with you that it's problematic when you try to do a structural change and then the other side responds for you or retaliates, and you get into a death spiral.

I really think you have to acknowledge that the political system that was set up by the founding fathers is if it ever were working given the skew of the Senate, which provides 11% of the population controls something like 40% of the Senate. Aside from that even, we just don't have the working system of checks and balances we once did.

Brain Lehrer: A seminar on the limits of our political system right now to actually reflect the will of the people from Vanessa in Westchester. Professor Rodgers?

Jennifer Rodgers: Yes. Wow. [inaudible 00:23:22]

Brain Lehrer: Oops, did we just lose Jennifer's line there? I hear her very faintly in the background.

Jennifer Rodgers: Can you hear me?

Brain Lehrer: Oh, there you go. We got you. Sorry, I don't know what happened.

Jennifer Rodgers: Wow. Vanessa is so informed and passionate and impressive. Your listeners are really something. Listen, I don't disagree with anything that Vanessa said. I just don't know how you change the structure in a way that helps right now. Some of these things gerrymandering, some of these things are being attacked in a different way, which is to try to elect people into the state bodies, the state legislatures, where gerrymandering is actually happening, as opposed to changing the court where these cases can make their way through their paces and get up there. Yes, it's a problem.

Citizens United is a huge problem, but I just don't know. Term limits, as I said, is something that I think probably is a good idea if you can make it happen in what seems to be a non-partisan way. I just don't know that the adding to the court piece is a good idea for the reasons I explained. Yes, we got all sorts of problems. I can't disagree with that. The problem is how do you solve those problems within our current structure? If you didn't want to stay within our current structure, where in the world are we going to go from there?

Brain Lehrer: Vanessa, thank you very much for that call. Please keep calling us. Michelle in Monmouth County is going to be the next caller after a short break with the Mifepristone case question. Stay with us. Brian Lehrer on WNYC.

[music]

Brian Lehrer on WNYC as we continue to talk about Supreme Court-related news and some other legal stuff, with Jennifer Rodgers, a law professor, both NYU and Columbia and a CNN legal analyst. Michelle, in Monmouth County, you're on WNYC. Hi, Michelle.

Michelle: Hi, Brian. I'd like to talk about how there seems to be a conflict of interest in the Supreme Court. With Thomas, he once said that he wanted to overturn or review Obergefell which is the case that decided the right to gay marriage, which is widely supported by American 71% of them from a Gallup poll recently. Like Clarence Thomas, I feel that even though he wants to have a more authoritarian approach to people's social civil rights, with the right to marry someone of the same sex, I feel that this is a conflict with him and the four justices ideology, their ideology of, what is it called?

Originalism from the Federalist Society, how they want to interpret the Constitution as written. However, with the amendment, people have a right to privacy. It's like they're trying to decide what people do in their private lives. I feel that with Congress, they need to step up their game with enshrining people's rights, and not having them being sacrificed in the name of their own political power. I wish the Congress was more groundbreaking with their support for same-sex marriage, rather than including the exception for religious exemption.

Brain Lehrer: Michelle, thank you. Thank you very much. Yes, it's tough with a gridlocked Congress where you have a Republican House and a Democratic Senate. In fact, we'll be talking about that, among other things with Senator Gillibrand, who's going to be our second guest today, after Jennifer Rodgers in just a few minutes.

Michelle raises another fundamental question, how do we have faith in the court when it seems like those who are personally opposed to abortion and personally opposed to gay rights happen to also line up on the side that the Constitution doesn't protect abortion rights or gay rights and vice versa on the other side?

Jennifer Rodgers: Yes. This is what I was saying before about the adherence to precedent is so important and why the decision last summer in Dobbs was such a shock, such an earthquake. If they're not adhering to precedent, and it's now just all about what the majority wants to do, in their heart of hearts, that's where we're headed. Clarence Thomas, all the things you can say about him, I guess you can't accuse him of hiding his feelings, because he flat-out said, in his opinion, that he doesn't think that there's any substantive due process right to any of these other things, either. Basically, it was a shot across the bow. Gay marriage and a lot of other privacy rights were coming for you next.

Brain Lehrer: Right. Although the argument that supporters of Thomas would make is that that's a reading of the Constitution that he could make that the Constitution doesn't actually have anything to say about abortion rights or anything to say about gay rights. It's not in the Constitution, and it's not significantly implied by the Constitution. It has nothing to do with whether I'm personally against gays having the right to marriage and that being legislated by Congress or the states or abortion rights, that it's just how you look at the Constitution.

I don't know if he would say that, but a lot of conservative justices say that and don't tag me with a position on the issue, just because I see the Constitution in a certain way. Is there a response to that?

Jennifer Rodgers: Well, here's the thing, though. The Constitution has been the same. The wording has been the same since day one. Now, that has not changed. If that's the case, you could have your own view about that. If he has consistently dissented every single time this issue has come before the court, that's his consistent position, and he can disagree, but the court has precedent. If you're going to say that the court adheres to its precedent and you want that structural integrity to run through the court and its decisions, then you also have to give weight to what the courts before you who have decided these questions have decided in the majority.

To throw all of that over, I think causes a real problem in terms of the court and its institutional integrity and the trustworthiness of the court. That really is my problem with that argument. He's basically saying, "I think what I think, and we can decide what we say now, is the textural understanding from way back when without regard to what the court has said is the meaning of the constitution in the interim." That I think is deeply problematic.

Brian Lehrer: Let's take one more listener call, and we have Senator Gillibrand standing by. Ellen in Terrytown, you're on WNYC. Hi, Ellen.

Ellen: Hi. Can you hear me?

Brian Lehrer: I can hear you.

Ellen: Great. Okay. Well, thank you, Brian, for taking my call. I was interested in what are the requirements of justices at other state and federal levels with regard to transparency and conflict of interest and restrictions on any kind of gifts and influence?

Brian Lehrer: That's a great question. If we're questioning whether Thomas is unduly influenced by this conservative donor who's given him so much money and gifts, and Thomas hasn't disclosed it and real estate sale even that Thomas didn't disclose. Are there standards for this behavior up and down the court system?

Jennifer Rogers: That is a great question. I don't have it at my fingertips in all of the 50 states. I will say it varies. Different states have different rules for required disclosures. One thing that is true is that, unlike our federal system in most states, the judicial system, the courts, were created by the constitution in a way that allows the legislature to pass laws for them more readily than in our federal system.

You don't have the same separation of powers issues that you have in the federal system. The legislatures are more able in most states to pass binding laws about what disclosure has to be and what conflicts can come up with respect to the judiciary. It's easier to do, but many states don't, in many states, they also allow their judges to be largely self-policed. This is giving me an idea now as I think about government ethics to push in the states for strict conflicts of interest laws because I think they're easier to get there.

Brian Lehrer: Last thing before you go to wrap it up. This news about the court being way behind in getting through its docket this term. Do know how behind they are or what the reasons for that might be? Is there some kind of behind-the-scenes drama at the Supreme Court, even beyond what we already imagined there is?

Jennifer Rogers: I don't know. I don't know about drama, but they've been behind for years and it's been getting worse every single year. I don't know if they now take so many cases on the emergency docket and that those are taking up the time that used to be devoted to the merits docket. It's an interesting question. You should really have Steve Vladeck as the UT Austin Law Professor, a leading expert on what's going on with those chartered dockets.

Brian Lehrer: Oh, we have him booked for next month. We have him booked-

Jennifer Rogers: Oh, great.

Brian Lehrer: -for the next month as a matter of fact.

Jennifer Rogers: Great. That is a question for him. He will know much more than I do, but it's been a problem that's been getting worse all along. We shouldn't have to wait for all these blockbuster opinions to come out at the very last second. At the end of the term, they should be doing their jobs more efficiently, it seems to me.

Brian Lehrer: All right. Listeners, mark your calendars for, I think it's May 16th or 17th for Steve Vladeck after that plug from Jennifer Rogers, adjunct professor of clinical law at the NYU School of Law, Lecturer and Law at Columbia University's Law School, former Assistant US attorney in Manhattan, and a CNN legal Analyst. Thank you for being so informative as always.

Jennifer Rogers: Thanks, Brian.

 

Copyright © 2023 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

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.