To The Contrary

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This is a different kind of appointee that we're seeing in the three from Donald Trump, who vowed to appoint justices who would overturn Roe v Wade.

He appoints three, and all three of them vote to overturn Roe v Wade and.

(MUSIC) Hello, I'm Bonnie Erbe' Welcome to to the contrary, a weekly discussion of news and social trends from diverse perspectives.

The Supreme Court formally considered one of, if not the most nonpartisan branch of government, now feared by some in the country because it has become so partisan.

How did it go from one end to the other?

Joan Biskupic has covered the Supreme Court since 1989.

Her new book, Nine Black Robes, pulls back the curtain on the Supreme Court and explains how it has become so political.

So welcome to the program, Joan, and thank you for your time, which is in huge demand right now.

I understand.

You've been covering the court since 89. Who has been appointed in that time?

Who made the biggest difference in the court?

First of all, I've been covering it that long, but so have you, Bonnie.

And I remember vividly seeing you in the Supreme Court press room ages ago.

Well, first of all, you know, this new book I have is more of a group portrait, Nine Black Robes.

But earlier, I focused on individual justices.

And the first was Sandra Day O'Connor.

And when I came to the beat, you know, in the late eighties, early nineties, Sandra Day O'Connor was practically chief justice because her vote controlled so much.

Remember that?

And, you know, she's still alive.

She just turned 93 and she is definitely an icon for our time.

But some much of her legacy is now being rolled back because we have such a new court.

So I first say, you know, just speaking back in that those early days when you and I were together at in the press room, Sandra Day O'Connor was so critical.

Chief Justice William Rehnquist was overseeing things.

And interestingly, those two were old pals from their time in Arizona.

But, you know, she she controlled and then with time with, you know, additional justices, especially in the four years of Donald Trump, everything has been transformed.

We have such a different court.

Not only do we not have Sandra Day O'Connor at the center, Anthony Kennedy, who left in 2018 and took on her center point, is gone.

And you and I would have never thought of thinking of Chief Justice John Roberts as the center of the court.

But he actually was after Justices O'Connor and Kennedy left.

But now he's been displaced also with these three Trump appointees, Neil Gorsuch, in 2017, Brett Kavanaugh in 2018, having succeeded Justice Kennedy and then Amy Coney Barrett with this huge transformation, because here is a very conservative jurist having succeeded this liberal bulwark, Ruth Bader Ginsburg.

And of course the Roberts Court.

Now the current Roberts court is probably most famous for the Dobbs decision of the summer of 2022, when the court threw out the federally protected right to abortion.

So do you think these three simultaneously political trust in the court on the part of the American public has gone downhill?

Do you think that is why?

I can speak to the polls, You know, this is the only way I understand what public reaction has been to the court.

You know, certainly I sense I sense a certain despair among people I know on the left, a certain glee among people I know on the right.

But when you look at public opinion polls that sweep in people right, left and center, there is a disillusionment about the integrity of the court, because a lot of people see the recent rulings as coming from political instincts, not necessarily legal ones.

And I'm just I'm just repeating what pollsters have found.

And it's not a single poll.

It's multiple polls, but they mostly arise that their sentiment arises out of the Dobbs decision in June that rolled back nearly a half century of abortion rights.

Roe v Wade had been upheld year after year, decade after decade, by courts that were dominated by other types of Republican appointees.

And I would include Sandra Day O'Connor and Anthony Kennedy right there.

And that and of course, Harry Blackman, who wrote Roe v Wade.

But this is a different kind of appointee that we're seeing in the three from Donald Trump, for better or for worse.

And as I said, there are plenty of people who are very happy with that trio that Donald Trump put on.

But they they seem to have come with the agenda that Donald Trump had.

He vowed to appoint justices who would overturn Roe v Wade.

He appoints three and all three of them vote to overturn Roe v Wade.

And John Roberts, no friend of abortion rights, certainly dissented from the part of the opinion that completely rolled back Roe.

So my point is that this is a different kind of court.

Different Republican appointees.

And Bonnie, one more thing.

These three Trump appointees are very young in the whole scheme of things.

You know, it's nice to think of people in their fifties as as you know, practically teenagers on the court, but that's what they are.

And they will be with America for a very long time.

And I've seen studies that say essentially this kind of right wing dominated court will be here for about 50 more years.

So why, for example, would and pardon my use of the term, but why would the Trump appointees be seen as more or less political hacks, but not the Democratic appointees who are who are partisan as well, too?

I mean, it's when I let me let me back up and say when I first started covering the court and I had at that point relatively recently gotten out of law school, I thought that judges were not partisan, but the more time I spent up there, I realized that this the Justice Souter's of the world, who truly was nonpartisan, were few and far between.

So tell me how that is impacting.

How they vote.

That's that's a very good point.

And I think it's a good one that there are plenty of people on the right who say, you know, the media, the critics focus on the six Republican appointed justices and how they often vote consistently on the right wing.

But the three Democratic appointees right now, Justices Sonia Sotomayor, Elena Kagan, and Katanji Brown Jackson all tend to vote very liberal.

So that reinforces it.

It's just that right now, not only are the Republican appointees, you know, voting fairly, consistently, consistently, they're also rolling back precedent.

And that's what's also gotten attention.

You know, when you think of Republican appointees from the past who wanted you know, who believed that some of the precedents from the 1960s and seventies were wrong, they let them stand just because there is that principle in the law of stare decisis as it said in Latin.

But the idea that courts will adhere to precedent and that has changed, that is a change.

But I think that for our audience, I would I would say definitely there is there.

You know, it cuts both ways that we have a trio of liberals who are Democratic appointees.

They just don't have the power.

They don't have the power that the right wing has right now.

Certainly, they don't have the numbers that the right conservative justices have.

Now, you write in your book about that after Justice Ginsburg died, her office was cleaned out immediately.

Was this was this from Justice John Roberts?

Why did this happen?

This I found that whole episode to be very symbolic.

Okay.

So Ruth Bader Ginsburg had obviously been dying for several months.

She kept being hospitalized.

And her staff is very much preoccupied with trying to get her materials so that she could decide cases whether she was at home in the hospital or or at the court.

And remember, we were still in COVID four for most of that time.

And soon after her her burial service, the her staff got word that they had to clear out immediately.

They didn't they wouldn't have time to sort through things in her chambers that they had to bring everything downstairs to a dark, windowless theater space on the ground floor, which you probably remember that space in the olden days, the pre-COVID days, Tourists used to be able to go in there and watch a short film on court operations.

But this was an empty space and they had to bring everything down there.

And that upset so many people through the building that they that there was this mandate to do it quickly so that the chambers that Justice Ginsburg had occupied could quickly get ready for the new justice, which, of course became Amy Coney Barrett.

I found that very symbolic, though, of Justice Ginsburg's legacy, because so quickly it was it was reversed on reproductive rights.

So it was just an episode that I thought was revealing of some of the people in the court and some of the tensions that that arose not just around cases, but court practices.

Now, do you think of that?

You talk also in the book about how the the justices, what they went through in Supreme Court hearings, and I recall from Clarence Thomas through through Justice Kavanaugh, and I quite frankly, did not I don't cover the court anymore, haven't for decades.

But but how Kavanaugh in particular, when asked about Roe v Wade, if he what his position would be, and he said, I believe in stare decisis was roughly translated from Latin meaning, Meaning that the decision leave it alone.

What is there is there?

And that's the law of the land.

So when justices tell the Senate confirmation, Senate Judiciary Committee that they believe in stare decisis and then act completely oppositely once they are on the court, is that lying?

Well, you have watched enough confirmation hearings to know that the mission of any nominee is to simply get approved with as few as few missteps as possible.

So they're naturally going to try to minimize any complaint of their answers, that they're going to try to seem as mild mannered and non-controversial as possible.

I, I would hesitate to say that they were lying.

They could always say, you know, I was I generally adhere to precedent.

Sometimes it needs to be overturned, but I generally adhere to it.

And I think that's the way they went.

Now, you know, it was so soon after they all came on the bench that they found it pretty easy to discard precedent.

So I think you just have to take their actions as they stand.

And tell me what you have found out about Justice Gorsuch.

Covering him now since the former president Trump appointed him.

Well, he's a very interesting figure.

And you'll see in my book my book Bonnie I'm very much intrigued by his not just his legal roots, but his personal roots, because his mother was quite interesting.

She was the first female administrator of the environmental of the EPA.

And she you know, she had a rough time in Washington.

In fact, the Reagan administration, people who who chose her ended up turning against her.

And he was just a teenager at the time.

And she even wrote about him in her book, her book, which she titled Are You Tough Enough?

Which tells you a little about little bit about Anne Gorsuch, who has passed away.

But she's.

So he's he's got he's got a very independent streak.

And he has didn't want to play the role of freshman justice.

And I think that his his record is intriguing.

He's mostly a consistent conservative.

But I'll tell you where he he breaks from, from the right on some criminal defense cases and where he's really try to set out a different path has been on Indian rights, Native American rights.

He's played a key role there.

So, um, any other areas, because those are pretty the ones you mentioned, are relatively non-controversial, certainly when compared with things like abortion rights or civil rights, etc., etc.. Well, I'll tell you something that that is controversial and it again traces to his anti-regulatory bent.

But also, again, just as his his mother did, is his mother acted to rollback regulations and Neil Gorsuch is sort of the embodiment of someone who is against the so-called administrative state.

White House Counsel Don McGahn talking about why he chose, why he was part of the team that chose Neil Gorsuch, why they said on him, referred to his his background and even his mother's background.

Don McGahn commented in one speech that, you know, his mother wasn't head of the EPA, but he shared with Neil Gorsuch that same kind of resistance for regulation, whether it be over the environment, public health, campaign finance, as as you know, that this court and Don McGahn certainly have fought over the years.

Now, would you say that Gorsuch, I think, are thinking about Justice Antonin Scalia, who passed away a few years ago and he and Ruth Bader Ginsburg couldn't have been more opposite politically, but very close friends and both great intellects.

So but I remember covering Scalia in the flag burning case, which must have been in the late eighties up.

Until yeah, there was one in 89, and 90 two of them went up there Right.

Right.

And he was in favor of allowing a protester against the government to burn a flag.

And of course, back then, anyway, and everything has been thrown up in the air since then in terms of party positions on on various things.

But almost everything has been back then that was seen as a liberal approach.

Do these three justices maintain any of those when positions when it comes to free speech rights?

You know, it's interesting.

Free speech rights do tend to dissolve some ideological labels.

And in that flag burning case, you know, you think of Justice John Paul Stevens, he was on the other side, even though he he was regarded as a liberal and that will come that comes in in some situations, especially in, you know, for example, in intellectual property.

We haven't seen it so much on first Amendment issues in recent years because many of them have been entangled with religious rights and with also ideologically charged issues.

But I imagine that as each of these Trump appointees settle in, we might see some some surprises, some increased differentiation among the three.

It is, as you mentioned, still fairly early for all then them.

Justice Barrett has only been on the court since late 2020 and she has separated herself from those other two on a couple of low profile death penalty issues.

So we'll just have to see.

I actually think that we just still don't have many data points to assess Justice Barrett yet.

And what do you what do you see?

How long do you think I mean, I know I'm asking you to predict when justices are going to pass away that sort of thing.

But it took 50 years, just about, right?, for the conservatives to get a majority on the court.

And do you think it will take another 50 years, for example, if ever the court reinstates Roe or in some form so that there are national protections for women's health rights?

Bonnie, I do not think the Supreme Court is going to suddenly or even over many years, even decades, declare again a constitutional right to abortion.

It will not be in your life, not lifetime likely not in mine, and likely not in my daughter's lifetime either.

Why?

Because of how long it took.

Well, because of who they have on the court, you know, they've not the as I said, the conservatives are the younger ones.

And, you know, I just I just don't see that happening.

I think that if there's going to be a right to abortion in individual states, it's going to be an individual states.

I just I just don't see a change coming in the near future.

The dissent in Dobbs said that something to the effect of don't expect this to be the end of it.

Does that mean the court is going to ban the sale of chemical or medical abortions?

Well, you're asking about a case that could be up there soon.

The question of medication abortions.

And we certainly have a case pending down in Texas right now that involves that and the statement that you're talking about, let's see if I can quickly find my book here.

Here's the line.

No one should be confident that this majority is done with its work.

And I think that that's exactly what the warning was from the three liberals on the bench who dissented from the Dobbs opinion.

Yes.

What is the mood among the justices?

I know when I covered Congress, for example, in the 1980s, early eighties, until I went to the Supreme Court in, I think 88 or 89, the Tip O'Neill and Bob Michael, then the minority leader and Tip, of course, the speaker would argue vociferously on the House floor, you know, polar opposite positions on many laws, not all, but many.

And then what Michael would, of course, lose because the Democrats had a 40 year majority in the House of Representatives, they'd go into the speaker's lobby, slap each other on the back and go play golf at the Congressional Country Club.

Is that happening at the Supreme Court?

Because of the history of Scalia and Ruth Bader Ginsburg being close?

Or is this new crop as hateful against liberals as conservatives are in the House of Representatives?

Well, I'll make this my last question, because I can see I keep getting beeped because I'm working right now.

I'm getting beeped.

So let me just tell you, because it is an interesting question that a lot of people want to know.

You know, what are they like as real people?

So I guess I would say in terms of the relationships, the jury is still out, Bonnie.

We do not have another pair like Ruth Bader Ginsburg and Nino Scalia who would go to the opera together all the time, have dinner together all the time, spend their New Year's Eve together.

You know, I think because they are the only ones in their life who really understand what their job is like.

They try to have some friendships palships they they still eat lunch together after oral arguments, as you might remember, from the old days.

But what they're missing, people like Justice O'Connor, who is the social glue of the court, they're missing now.

Stephen Breyer, who really worked hard to get along with everyone.

Elena Kagan does go golfing, but I don't think she has a golfing partner among the justices.

She might, because she would be someone who has some political instincts like you've just described, to try to get along both on the bench and off.

But right now, the kind of polarization that you see outside the court certainly is is shading what goes on inside the court.

I have two more questions.

One is, would you regard Mitch McConnell, of course, the then Senate majority leader, as having stolen two appointments away from Barack Obama, two Supreme Court appointments?

Well, yeah, I know exactly what you're talking about.

And I devote an entire chapter called The Triumvirate to Mitch McConnell, Leonard Leo and Don McGahn because of the hand they had in everything, including ensuring that President Obama did not get any kind of hearing or regard for his nomination of Merrick Garland.

But I personally would not use the word stolen.

I will leave that to you, though.

All right.

And then I the Nancy Pelosi, we recently interviewed her and she said former speaker, of course.

And she said that the court is now has traditionally been a court of or at least in in the 20th century, a court of enlarging human rights, civil rights.

And now it's become a court of decreasing those rights.

Where do you see that as happening most frequently?

And again, is is that going to be the case as long as the now six justice majority of conservatives is at least a five person majority?

I think I think that Nancy Pelosi nailed it.

I would mention one exception, though.

First, I'll say that, yes, I envision more diminishing of of certain rights.

Individual rights lowering of the separation between church and state are likely rollback more on reproductive rights, likely also on racial remedies.

But the one area and I'll leave you with this, the one area that they are expanding Second Amendment rights, they have allowed much more robust reading of the Second Amendment and many more limits on gun control across the country.

Thanks again for doing this.

Really appreciate your time.

Thanks, guys.

Thank.

Thank you.

Bye bye.

Bye.

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