Aired Last week 0:40
Rush Limbaugh | KNSS
U.S. Air Force to accept KC-46 air tanker: source
From the news
Aired 2 weeks ago 59:44
Chief Justice John Roberts, a Rock, and a Hard Place
The instincts of John Roberts who rose in Washington as he served Republican administrations have always rested with the right wing. But now he's much more in a position to be torn between his ideological instincts in his very real institutional concerns about the third branch in particular about the supreme court. Hi, and welcome back to amicus slates podcast about the supreme court and the law and the rule of law and the rule of law and the Trump era I'm with week. I covered those things for slate. And hey, it's twenty nineteen and the government is partially shut down. But the courts remain open actually, with the exception of the immigration courts, which have already delayed most of their hearings. Ironically, contributing to the already massive backlog of delayed immigration cases, which is the thing. We're fighting about immigration now, we're seeing cases that are going to be rescheduled. In the thousands new cases will be delayed twenty nineteen your couple days in and your name already is Ernie twenty nineteen also opened with chief Justice John Roberts and his annual New Year's state of the judiciary report it always sneaks in with the new year. This year was almost more notable for what it did not say it certainly did not talk about. Donald Trump, and it did not explicitly say a lot about the thing it addressed which was sexual misconduct in the article three courts. Indeed chief Justice Roberts who is determined to keep the court out of the public eye in these roiling and very dramatic months post. Brad Kavanagh is actually quickly becoming the most interesting member of the high court for what he doesn't say. So we've now seen him in the last few months with a series of votes to Batta way big cases intervening in a sealed secret conflict that's coming out of the molar probe. Who is John Roberts? Is he evolving into a centrist is he taking on Trump himself in his own twinkly eyed, understated way, how did this balls and strikes guy? Become the most intriguing understated man in America next to. To the other intriguing. Understated men in America, we like to call Bob Muller. Nobody has watched John Roberts more carefully in recent years than Joan biskupic. She covers the court for CNN and her new book the chief the life and turbulent times of chief Justice John Roberts will come out. This March Joan has been covering the supreme court for over twenty five years. She's written seminal biographies of several of the justices. She is a legal analyst for CNN and one of my dear friends and colleagues at the supreme court. Joan welcome back to advocate. Thank you. Dahlia so Joan as I just noted in his state of the judiciary speech on Monday. The chief Justice quite determined -ly addressed and didn't address reports of sexual harassment in the judiciary. This is an issue. He raised really forcefully in his speech last year. He seems to be accepting the findings of working group that he convened to analyze the. Problem. He says, I agree. There's more than one or two I selected incidents. I agree. This is not just about law clerks. But then he seems to kind of downplay the larger problem in the judiciary you reported on this extensively last year the number of complaints about judges. And in fact, he said some of the worst conduct was quote, incivility or disrespect. He did ask the working group to stay on task to keep looking at this. But is he affect just telling us all it's time to move on. You picked up on exactly what I picked up on Dalia the idea that he minimized the kind of harassment or employee abuse that takes place in the nation's courthouses using the word incivility disrespect does tend to minimize what might be going on. So I thought that was notable. I also thought it was notable that he stressed how what happens in the federal judiciary compares. Favorably to other government and private sector workplaces. But how would we really no one of the complaints that outsiders? On law school campuses. And, you know, former former law clerks made with that. No real survey had been taken of the extent of the problem. But the chief stressed that the problem is small compared to other places. So you know, as I said one question, I would raise right away. How would we know? And then also sort of the minimizing of the the abuse. I think the phrase was indeed, you know, the harassment found was in the form of incivility or disrespect rather than overt sexual harassment in reminded me of a couple of the statements that were made to the joint conduct committees. That actually had a hearing in the fall about the judiciary is problem. You know, the students from Yale as, you know, Dahlia had talked about the low rate of reporting and saying the judiciary in the public can't conclude that the allege misconduct that we saw in the. Judge Kozinski was isolated. And they said to the contrary the experience of former law clerks suggest a broader pattern of harassment, but we just don't know. And then, you know, even taking the professors point of view, one of the lines that came from Harvard law. Professor John manning, you know, who's not a flaming liberal or someone who could be accused of trying to just be a complainer in the situation. He expressed concerns on behalf of professors who actually help law students, get these coveted clerk ships. He expressed concerns at the codes code of conduct judicial misconduct, Omid, Taraf -ment and other forms of workplace discrimination and that there's an absence of affective processes for dressing workplace misconduct. It's the channels of reporting in the channels of resolution and investigation, I think that that are hugely problematic that the. Chief did not address and it's ironic. Great, Jim because one of the things that I think the working group got shellacked from both from Republicans and Democrats who responded to the report was there seems to be this feeling in the ether in the working group that like people should just report more the onus is on folks who aren't reporting, and I think that that clearly can't be the takeaway. That's the problem. You know, the chief Justice also stressed the reporting issue to what you just reminded me of a moment when the Senate Judiciary committee was hearing from Jim doff, who's director of the administrative office of the US courts when he testified about how they don't know the extent of it. But he kept stressing, you know, just one bad. Apple is someone who we want. We want to end any kind of pattern and Senator John Kennedy a Republican. Mhm Louisiana said how are we going solve this problem? If you don't wanna talk directly about it. And I think there is a reluctance to take on the the pervasiveness of any problem in the workplace in it would be, you know, granted it would be hard to assess it in a broad scale way. But many of the critics of the judiciary who are part of the system say that that is what is needed. But it goes to the fact that there's there's an attitude that you can't really challenge the guild, you know, the people there is a subtle fear of retaliation. Certainly that is not distinct to the judiciary as an employer. But I think it's very real that people in the system judges, and the people who work for judges are afraid of complaining in any way that would lead to them being retaliated against frozen out even subtly not getting plumbing Simon's or opportunities. And that's just part of the the. Ethos of this this elite guild that that is our federal judiciary. And I guess it's worth noting the paradox because John Roberts has now devoted not one. But two of his state of the judiciary reports to this issue. So we can't fault him for not centering it as something he's concerned about it's the second year in a row that he said this is deeply concerning. But there is a way in which one wants to see something beyond just him saying, it's deeply concerning. And I think I mean to give him the benefit of the doubt he's trying to figure out what that sounds like. But it seems to me that folks who wanna see meaningful change are going to walk away a balking at the word incivility and be asking John Roberts would exactly is the plan on my over criticizing. I would agree that it is good that the chief Justice is trying to keep an emphasis on this problem. Obviously it all happened because of the Washington Post store. Sorry in December of two thousand seventeen. About allegations that were being made against judge Kozinski on the ninth circuit when former law clerks and other staffers came forward to talk about sexual harassment in his chambers. I cannot imagine that we would be at this point with any report from the chief Justice the first or second without that incident. Even though as you have written people knew about complaints about judge Kozinski, even if they had not been made through the establish reporting channels, which has been kind of my my concern is that the established reporting channels get lots and lots of complaints, you know, more than, you know, more than a thousand h year, but they're mainly filed by unhappy litigants, rather than people with are you believe legitimate complaints against judges and the behavior they endure. So I wanna tuggle from that. Because I think. Those words incivility disrespect. There's a through line here. Which is that the chief Justice in the last few months, and you've written about this a bunch Joan is really talking about tone a lot and he's really trying to take the temperature down on all of the mayhem. That's happening opposed Cavanaugh by talking about how we talk to one another. And I think you flagged in a speech, he gave right after the Cavanaugh hearings last October that he again, you know, pointedly said, you know, this is just not how the judiciary conduct itself. And then he ended those remarks in October saying, you know, echoing Cavanaugh who had just been seated saying as our new newest colleague put it, quote, we do not sit on opposite sides of an aisle. We do not caucus in separate rooms, we do not serve one party or interest. And I think that there's this interesting paradox, which is almost. I'm almost at the point when John Roberts tux about tone or civility. I feel like he's hiding something. I feel like it's a way for him to not talk about something that is demonstrably wrong in problematic, and again, I feel like I'm being unfair. I'm for civility yours for civility were all civil. But it feels like it's part of a cover up and the more John Roberts talks about the need for sued civility in the judiciary. The more it feels like he saying, please don't talk about things that are really problematic. I think we're at a very interesting point with John Roberts as leader of the third branch and questions of how he will manage the conservative majority in what sorts of signals. He wants the public to receive especially in light of two things. One is President Trump's complaint about the judiciary? But the other is the very real fact that this court is divided five four along partisan, political ideological lines. There's no getting around the fact that John Roberts in the other four conservatives were were nominated appointed by Republican presidents in the four liberals who are mainland descent on the big cases now were appointed by democratic presidents. And he even before this moment had put a lot of attention in to argue against the fact that there are. That they do not work as Democrats or Republicans. That was something he was saying from almost the moment he was confirmed in two thousand five and he's heightened that rhetoric in part because of Donald Trump and his complaints against judges. And the fact that he will often tag judge by naming the president to appointed him when he complained about an Obama judge who had ruled against his new asylum policy. Now what I think is happy with the chief, especially with Justice Kennedy's retirement is that he is overseeing court that is more divided along conservative liberal lines. And he is trying to counter a public perception of partisanship of political motivations and ideology that really is not based so much on law, but on more political inclinations, so I think the kinds of. Statements that we're hearing from him respond again in part to what Donald Trump said. But mainly to send a signal about the court. He's overseeing when he says we do not have Obama judges or Trump judges Bush judges are Clinton judges. He's talking about the perception, I believe of his own five to four court, not just the way Donald Trump has described this court, and I think that he's been trying to counter this for a while. And you know, he he himself. I think in some of his recent actions in votes is trying to send a signal that he cannot be as predictable as he might have been, you know, for years he had to dance around Anthony Kennedy as this centrist jurists whose vote he needed whose vote he had to. Woo. But who also essentially gave the court some cover because Anthony Kennedy. Nineteen eighty-eight. Ronald Reagan Republican appointee was not predictably conservative, and I'll cases especially not on social policy cases. You know? He he cast a key vote to uphold affirmative action on couch campuses. He was the voice of gay rights and of new right to same sex marriage. So he just as Kennedy embodied the notion that there is nothing that you can't describe someone as a Republican judger democratic judge without Kennedy. The court is much more divided. Exactly along those lines and John Roberts is now the the median, and he is no centrists conservative with a record of joining the left on closely watched social policy disputes as Kennedy was and the instincts of John Roberts who rose in Washington as he served Republican administrations have always rested with the right wing. But now, he's he's. Much more in a position to be torn between his ideological instincts. That have been built all these years from when he first served his lawyer in the Ronald Reagan administration in his very real institutional concerns about the third branch in particular about the supreme court. So you've mentioned two really important things. You've said, you know, a a lot of this is responsive to the fact that for the first time in our lifetimes, we have a five four Republican appointed democrat appointed perfectly ideologically split court. There's no buddy in play. That's one thing. And the second thing is that Donald Trump is just in ways we've never seen from the president just battering away. Not just at you know, a Odom judges, but you know, at all judges on the ninth circuit at any judge who strikes down his travel ban. You know, he he has attacked the court not just the supreme court, but all article three courts in ways, we've never seen. And so we have 'institutionalised John Roberts sort of stepping into a role where he's going to protect the legitimacy of the court at the expense of his own, you know, political predilections there's a third factor, which is the cavenaugh hearings. Which really dramatically I think polarize the country specifically probably activated. A lot of women are using ways in which that third component the acrimony and the ugliness around. The Cavanaugh hearings is also making John Roberts act differently than he might have acted in the month since October. Yes, I think he is exceleron added. His public statements about the court being separated from politics. What many people don't remember is right after Neal Gorsuch was confirmed in April two thousand seventeen John Roberts was speaking on a campus Rensselaer polytechnic up in New York and didn't didn't get a lot of coverage. But he happened to say at that point. He stressed that. While the turmoil related to Justice Scalia is death the Merrick guard. Ireland nomination that went nowhere for a year. And then the final nomination and confirmation of Neal Gorsuch while that was all going on. He made a point to his audience that the court was acting through that time with just eight members in a nonpartisan way taking cases one at a time. You know, he wanted he he conveyed that message. It didn't get as much attention. As the message is referred to later in October of two thousand eighteen after brick Kavanagh's very Avala toll confirmation when he stressed about. How he picked up a line. In fact, from Brett Kavanagh that judges don't align themselves with one side of the aisle or the other that they are neutral, and that got much more attention. And I think he wanted it to get much more attention because obviously the cabinet nomination. Fight was a much much uglier much more public much more divisive than the Gorsuch one. But he has always feared he is set out loud on numerous occasions that he fears that after a heated confirmation battle that the public can't help it take away the idea that any new Justice is going to be driven by politics. Just as the confirmation battle was cloaked in politics. So he he made the statement in October up at the university of Minnesota, I think because of the cabinet nomination. And then I think because of the continued fallout again from what President Trump has said. But also the battle that he's fighting for his his own courts, reputation and stature in America right away. You know before thanksgiving he made that statement about you know, there's no such thing as Obama judge. There's no such thing as Trump judger Bush judge that was not chief Justice. John roberts. Does not do anything spontaneously. He had gotten request to speak to the topic of President Trump's derision of judges from. The Associated Press from our Sherman, which I thought that Mark drew something important out of the chief. But it was not a spontaneous statement in my mind. It was a statement that the chief had been waned for a while. I'd been talking to lower court judges who had been hoping that the chief would speak out against the president because of their own concerns about the judiciary's reputation. But I also know that the chief is has been for longtime concerned about how people might be regarding the supreme court itself, and how politicized it's gotten. You know, he's you'd think of how he voted in the case of Trump versus Hawaii on the president's Muslim-majority band last June. He was with his with the conservatives five to four to uphold it, and he took pains in that opinion to stress how he had to he had to write it as if the court was dealing with any president. Not this particular president and the court needed not to minimize the power of the the executive branch. Well, you know, the dissenting justices, and especially just as soda my or who would public from the bench that morning with her statement. You know, essentially said give me a break. This was not just any president. This was a president who ran on a campaign that was anti immigrant that was that included so much anti Muslim rhetoric. So President Trump cannot be regarded just as any president. It was sort of a get real moment in the courtroom that day, and she said Trump Trump Trump. I mean, the opinion was fascinating for just almost the mantra of you know, if you're not going to say his name, I am, but it raises Joan this paradox. And I think I suspect the generals or having this conversation amongst themselves, which is the the thing you're saying about the judiciary, which is when you are trying to protect this institution against. Somebody who's kind of nihilist doesn't care if the institution falls or rises every time you engage with him directly, you damage the institution. That's the thread that I think a lot of institutionalists like John Roberts are trying. You know, they're trying to walk this line between protecting the institution win. John win win. Donald Trump goes after all Obama judges are all liberal judges. Or, you know, anybody who strikes down his travel ban. The reason I think John Roberts has been so quiet until literally as you say he finally said something in November. And it was pretty anodyne as a win. But it's because as we learned when Ruth baiter Ginsburg punched back during the election, you drawback a bloody stump when you attack Trump directly, and you damage the institution to will two things on that Dali at one is. Yes, I think. He was worried about provoking the president in who wouldn't be given given what we've observed. So that was one thing in the back of his mind, but just to add some context to this John Robert himself from his early years amid twenties lawyer for president Ronald Reagan has been involved in the screening in vetting of conservative judges himself. You know, he when he worked for Ronald Reagan. And then when he worked for George H W Bush, you know, vetted individuals for the federal bench and was part of an emphasis that we now associate so so much with the federal society. But he was once part of a version of that. So he he has always been interested in getting more conservatives on the court and getting people who who frankly could be identified as Ronald Reagan judges as opposed to Bill Clinton judges. So it's it's a different degree. And I think what bothers him is not the notion that is I said he was part of bringing people onto the courts that would hold the ideological persuasion of president. But the notion that once an individual is in the black robe he or she is an automatic vote for the president's case. And that is exactly what Donald Trump is constantly. I was gonna say connoting, but he's not even it's not even mere connotations. It's direct statements. You know, just wait until the case gets to the supreme court. They'll be with me, you know, when he when he tweets something like that. I think what re first of all I think the chief would not want to even own a lot of his own ideological interest in a conservative bench. But what he definitely doesn't want to be part of is the notion that someone who who was appointed by a particular president is automatically going to be with that president. And I think that you know, that's certainly what. Many people probably took from the breath. Kavanagh hearings is that he would be a President Trump's man on the court. President Trump has certainly suggested to the public that Neil Gorsuch, and Brad Kavanagh will be with him. So that's really important. What you're saying? Joan what you're saying is we can't just look at this on a sort of left right axis or social conservative were movement conservative versus progressive access. This is really now becoming at least in John Roberts mine. A deeply fought conversation about loyalty to the president. And who is in the tank for the president, and that the legitimacy of the court isn't just eroded by. You know, conservatives vote, you know, for guns and against affirmative action. But the laser focus in John Roberts. Mine is the concern that the court becomes a rubber stamp for Trump. And that is the issue. That's animating some of this pushback. And then what? Else? Dalia, you know, if I learned anything from dealing with John Roberts over the past three years as I was working on this book and meeting with him and talking to people close to him is that he has a terrific ability to see out into the future years ahead of what's going to come next. So I think that he's not only worried about exactly what's happening now with President Trump. But I think he's worried about a potential backlash and what happens. What happens down the road when when the Democrats take control which inevitably it some point they will likely take control. What about, you know, this talk of maybe expanding the number of justices on the supreme court. You and I think that is going to go nowhere because I actually have those I feel like oh come on. You know, really, you know, after all these years finally ITO, congress is going to expand the membership of the court just so that. They can water down. You know, the the Trump in a conservative influence. I tend to think it might not go anywhere. But, but the that's talk as you know, people are talking about potentially expanding the number of justices. And I think John Roberts sees it. And he sees other potential moves by the opposite side, not by conservative. But by liberals down the road that could also challenge the supreme court's impartiality enroll in American. I think he's trying to head off that kind of thing too. Seriously. I think that he's I think that that he he is not existing only in this moment. He's he's very good. At at looking ahead. He was a student of history as you know, he was a a history major at Harvard and at one point thirty we'd get a PHD in history. But I think he's he's very shrewd in how he looks to the future. And that anything he did in November in that that statement that he gave to the Associated Press in the next ended too. All reporters didn't capture his thinking for that moment to captured his thinking for what would come next. I'm so glad you said that Joan because I think when he said that an awful lot of folks said this is actually there's a straight line from his balls and strikes stuff at his own hearing. You know, once you put on the black robe, you become this Iraqi leader, but you know, nonpartisan thing and that he was extending that when he made his statements about there's no such thing as a Trump judges and Obama judges, and I think a lot of progressives balked it. Because short sounds like he's defending the institution. But he's also making a normative argument that is really bad for progressive, which is the judges are magic. And that he's been skating on that balls and strikes things for a long time. An awful lot of the Trump nominees who have gotten through on the lower courts make similar statement. You don't mind what I wrote in this polemical. Blog post about Hillary Clinton being the devil. Because once I put on my black robe. I too will be magic. And I think that there's a way in which again, this is the language of, you know, once once you get on the court, there is no politics that redounds to the benefit of John Roberts and conservative judges as much as you know, statements that are directly partisan. It sounds so good doesn't it that? You know? No, yes. Call as you know, balls and strikes, but there's no strike zone in the constitution is is a very thin. If thin document that held so much weight in terms of the interpretation of more than two centuries. So it's the rules. There are no hard and fast rules that can only be interpreted if there were all judges would be ruling the same way. And we know they don't. So it's I I remember. Reading George W Bush's account of first meeting with John Roberts in July two thousand five when then candidate John Roberts rolled out, the the idea of the empire metaphor, and George Bush said he was just so struck by it and it sounded so right? And I remember as a reporter covering his hearings into thousand five that became the lead. It became the headline at talk about the statement that has endured since those those confirmation hearings in September two thousand five and because it it sounds great doesn't it, you know, this neutrality idea, but, but we both know that there are very well intentioned judges across the ideological spectrum who believe that they are fairly assessing the law as as it's written in the constitution or federal federal statutes, and they come to different different interpretations. So there there is no. No real answer here. And I don't know if there's a real answer in baseball. But there's probably a real answer in baseball than there is in the law. There's no crying in baseball that. We're going to pause now to hear from our great sponsor of this show. And that is the great courses if you listen to this show, you know, that my own feeling is as we get older. Our love of learning never really stops in it cannot they're still so much. We need to know. And we want to know. And if it sounds like that, something you're interested in head on over to the great courses. Plus this online streaming service gives in-depth reliable info on a huge variety of topics presented by engaging experts in their fields who are knowledgeable and passionate about their subjects. And there are thousands of lectures for you to explore their ranging from history to science arts to literature, hobbies like cooking and photography. And with the great courses plus app, you can watch or listen on your schedule on your time today. You can check out. The course the modern political tradition. It explores the powerful political ideas that have. Shaped our lives asking important questions. Like, what kind of government is best? How consignees adapt change. How do we balance the good of the community with the rights of individuals? And for a limited time only, they are offering amicus listeners and entire month of unlimited learning four free, but to get this special offer you need to sign up through my special. You are L start your free month. Now, go to the great courses, plus dot com slash amicus. That's the great courses plus dot com slash amicus. I'm going to take a moment now to talk sleep plus membership benefits because if you're hearing this you're listening to the regular version of our show, which is really great. But if you sign up for sleep, plus you can enjoy the slate plus version, which is commercial free an uninterrupted amicus just for you. And as a slate plus member you'll get access to all sorts of bonus segments and extended versions of your favorites. Late shows it only costs thirty five dollars for your first year, and you can sign up for. Free for two weeks to check it out first and not for nothing signing up for sleep. Plus also means you will be supporting this show and all the valuable journalism that we do here at slate. We know that you value and want our coverage, and you know, how urgent this work is. And we need your help to do it. So sign up for slate plus and help secure slates future. To learn more. And to begin your free two week trial. Go to slate dot com slash amicus. Plus and now back to our conversation with CNN legal analyst and soon to be John Roberts biographer, Joan biskupic. I wanna ask you you've made this point. And I think you're right that that we have to John Roberts. I know this is sort of the heart of the question. You know, we have institutionalists John Roberts, and we have lifelong movement conservative John Roberts. You're saying something under that you're saying there's long game John Roberts, and there's near-term John Roberts and we've seen that. Right. We know that he is very Adele. Left at doing the small incremental thing that turns into Shelby county. You know that eventually turns into a big decision. Shelby county. That's the case that gutted effectively a big chunk of the Voting Rights Act. And I think that there's something about this interplay, and it's really important because in the last few months, you you noted that and we should talk about it explicitly. But in the last few months, we've certainly seen John Roberts citing with the courts liberal wing in case after case, you know, saying I'm going to bat this away. I'm not taking on these big ticket issues. And in some cases, he's had Brett Cavanaugh voting with him. And I wanna talk about it. But I also want to just ask pointedly. All these things that you are describing right now the ways that he is taking the temperature down is that just I six months or a year or two years until we go back onto screensaver stop watching the court. And then he goes big again. I think it depends. I think that in certain areas of the law that he will always Hugh to his conservative instincts. And I think race is one of them. I think your reference to Shelby county is very apt. What he did in the two thousand nine northwest Austin case that so laid the groundwork for the two thousand thirteen Shelby county case was signature, John Robert John Roberts, both in terms of of laying the groundwork thinking ahead trying to figure out how to get from point eight point be, and it was on a topic that is so important to him racial remedies. It's been an important topic again since his days in the Reagan administration and probably even before then. But then you take areas of, you know, more federal ISM executive power things that I think there will be more play in the joints for him. I think overall what Matt. Matters to him is you know, how he will be regarded in the end. He he said early on in his tenure as chief that you you. You're not sure how you're going to be regarded will you be regarded as John Marshall, or will you be regarded as Roger tawny? And he quipped that he likely would never be regarded as John Marshall, even though invokes in plenty. But you definitely don't want to be regarded as Roger Tani, the notorious author of the dread, Scott opinion. But I think he's very aware of his legacy over the long haul. And and he you know, to I'm giving him credit for wanting to protect the third branch in in ghetto our democratic system, I think it's very important to him as an institution. Listen, I think we know those sorts of themes were in his Affordable Care Act decision when he went with the liberals, and he has not live. Down that vote in the mind of of conservatives, and that that is one model for where he might go in the near and long future long term future with the court buffeted. So, but I do not think there will be a distinct pattern ideologically, I think he will. I don't think he is predictable on certain cases. I do think he will be nuanced. I think that he'll take each term one at a time but with his eye to the long game and again things like race and religion and probably reproductive rights. He will be more predictable than he would be on some things having to do with executive power and the policies of Donald Trump. So I think that's the single most important thing that I have noted, and I I think we're in agreement is that he's not moving to the left and anybody who thinks John Roberts is drifting, Allah, John Paul Stevens or elevated. Souder even Ella. Anthony Kennedy to the left is overstating it what he is doing is a protecting the reputational interests of the courts and be plotting a long long course, I mean, he may be the chief Justice for decades, and he doesn't have to rush. And then I think what you're saying is he's doing a thing number C. Which is there are areas that he is passionate about and I agree with you racist. Clearly, one of them, suspect reproductive rights. He's not going to defect on those. But on issues where these are not his frontline concerns. And and I'm mindful of the second iteration of the Affordable Care case where he essentially said in when he voted with the liberals like, please don't ask me to carry water for crackpot theories straight. I'm not going to do every single thing that Obama haters asked me to do, and it seems that that's where the fault line. Line will be that. He will be very very consistent on the things that matter deeply to him. But on some of this stuff. It's just not going to be worth it for him to take a reputational hit either personally or for the court. And I wonder if that maps on if I'm correct about that Joan does that map on to the cases he is so far brushed away. Just in the last couple of weeks. You know, he's he's voted not to allow Trump's Justice department, you know, to to stymie the census citizenship case to stymie climate change lawsuit. He does not want to get involved as you said in this Planned Parenthood reimbursement case, it does that map onto what we're describing. Which is these are just not areas of interest for him. I think I think to an extent. But also, I think what he's doing it. He's he's taking small preliminary steps in. I think a good example is the most recent one from right before the holidays when the supreme court rejected by a five four vote. The Trump administration's effort to enforce the new policy at the board at the southern border denying silent people who crossed between ports of entry and entered the country illegally. He was with the liberal justices in this case breath, Kavanagh did go with the the conservatives, but John Roberts was with the liberal justices to to endorse the lower court's decision. Forbidding the policy to take affect because it it likely violates federal law. So the supreme court's action kept in place a lower court injunction while the litigating on the merits of the policy continues. It was not a vote on the merits. I got so many emails saying, wow, you know, he's definitely, you know, this is this is the new John Robert. But I think I think there it was one of those votes that first of all was. Not did not cost too much in terms of his own ideology. First of all it followed by just about a month. His statement that there are no such things as among judges Clinton judges Bush judges Trump judges, and if he had been with the conservative, you know, I think we all would have said, oh, yeah. Really look at look at how you you you nine divided. Exactly, according to the the presidential parties from from whence you came. But he he went with the liberals, but I'm telling you that it's it wasn't that that momentous because the lower court judge in that case judge j Bibey a we certainly know flaming lib of a tried and true conservative appointed by George W Bush to was head his own inordinate attention, as you know, for many of his own policies when he was in the Bush administration. He he himself had rejected the government's attempts to defend the policy as lawful. A J by be on the ninth circuit said asylum would be become the quote hollowest of rights if foreigners fleeing to the US for fear of persecution face, these new Trump restrictions that condition eligibility on where the would be refugee tried to enter the country and on that kind of criteria criteria that had nothing to do with asylum itself. So would John Roberts was doing as he joined with the other with the four liberals of the court was not it was not adopting any kind of radical view. First of all, they weren't even voting on the merits. You know, it was just does this policy take effect or does it not, you know, it was a a stay motion as you know, and, you know, in effect, he was he was joining a an action that just affirmed the fact that is judged by behead noted below you know, for for six more than six decades supreme court head. The United States it except you refugees fleeing personal danger in their home countries, you know, based on laws treaties everything else that had nothing to do with where they entered the country. You know what I mean? So so you know that that is one caution. I would read into it to say again, these are preliminary nuanced actions were seen from him. And please do not lose sight of where he voted with the majority and wrote the opinion Trump versus why in June to uphold a President Trump's policy banning certain people from Muslim majority countries to things you're saying are worth teasing out the new asylum. Rules is a really good example of the story. John Roberts wants to tell playing out. So we have a district court who stays the original roles and says look plainly the statute does not contemplate what Trump is saying. We can now do then it bounces up to the night circuit J Bibey as you say who's forever going? To be attached to the torture memos rock rib Republican agrees. So that you have judges coming together. Despite who appointed them in this case coming together to strike down something that Trump does and that works and so for John Roberts to say, hey, the system is working is is very, you know, in tune with the narrative, he's trying to tell there's another thing that I think you said implicitly, but let's say it explicitly, which is all of these DOJ efforts to leapfrog cases to the supreme court into just say like, we don't even need to go through anything. Let's just have the court decided in our favor tells exactly the story that you imputed to Donald Trump, which is it doesn't matter. What the lower courts do because I've got the supreme court. They're going to give me what I want. And I think John Roberts hates that story. Right. So all these efforts to before cases even begun to be litigated to run to the supreme court and say, you know, but. Mommy. Give me what I want John Roberts hates that story. And so he in some sense is batting away. These cases in the early stages because it's very very easy and cost way to protect the integrity of the entire article. Three judiciary? Is that? Right. That's right. That's right. You know? I think many of the justices talk among themselves about what the solicitor general is doing right now. And they they like tradition they like systems they like orderliness, as you know, from having worked in the third branch people in the judiciary like hierarchies, they like orderliness, and nobody wants anything disruptive in addition to when when John Roberts testified a back in two thousand five in the invoked his umpire metaphor. He also talked about jolt to the system they don't want substantive jolts. And they also don't want jolts that you take them out of their their their usual course of how how? Things operate, and you know, you, and I could we can't even count on you know, two hands anymore. You know, all the all the emergency requested have come to the supreme court saying, you know, we're going to quickly jump over an appeals court or we want to some sort of emergency urgent resolution of this because we need our policy. Take affect the supreme court doesn't like that. At least it signaled so far that it doesn't want that. But but the signals have not been. Completely consistent. And what I would say is let's wait to really assess things. Until we see a ruling on the merits and have more data points. You know, many people jumped on some of the early actions of Brad Kavanagh in the first couple months of his tenure. And I think we have to we just don't know yet. I think we can say as as I've written is that he he he's not trying to gather a lot of public attention. He's he's laying low. He's he doesn't want want to be seen as is disrupting the system in any of the ways that I just referred to. But he has not been consistently with the conservatives, and you're not been consistently with John Roberts. Although it is clear that John Roberts would like him as a partner in this effort to try to lower the temperature and try to make the court appear in the public mind above politics. So two quick lightning round question. On John Roberts other stories that I suspect you got a lot of male about where people were making definitive statements about John Roberts, and they may have been not a big deal. One. Is there were eighty three complaints about Cavanaugh that were, you know, referred I to the DC circuit. And then they went to Robertson. Then Robert's spike them to a judicial panel. There were a lot of complaints that John Roberts deliberately waited until Brett Cavanaugh was sworn in. So that he would not be subject to judicial ethics rules and that he deliberately sent it to a judge that Brett Cavanaugh had had worked to get appointed. When Brett Kevin worked in the White House. Is there some sense in in your view that claims that John Roberts sort of masterminded all this? So that Cavanaugh couldn't be tagged for his behavior during the hearings of I is that unfair to John Robert. This tough question. I don't know. I do think he might have not realized the potential some of the potential for an appearance of conflict of interest with the chief judge of the tenth Circuit Judge Tim coverage because he had obviously gone on the court during George W Bush's tenure when recap was involved in vetting judicial candidates and also because the chief judge happens to be also be on Donald Trump's list of potential supreme court justices. I don't know how much that was even in John Roberts mind as he sent the the cavenaugh complaints there. He obviously would have been aware of the fact that once breath cabinet became a Justice. He was not covered. He was just simply not covered by the code. We all know that we knew that the, you know, that's that's what the nineteen eighty law says the supreme court is exempt and for better for worse that has been the law that is how the judicial conduct committees have interpreted. So this was in many ways an exercise that was destined to come up with no resolution that would be satisfactory to the people who were complaining, but I. I don't know I met in position to be able to definitively say that just exactly what he was thinking in terms of manipulating the system. So I can't help you there. I don't know any can you help me with the second one. Which is again John Roberts happened to be the Justice, the the the circuit Justice for this mystery in criminal proceedings, the unnamed company the like secret filing and all the drama that happened right around Christmas. We know almost nothing. We only know that it was kept secret. And we know that whoever this foreign orange owned company that is fighting its subpoena and saying that their own domestic laws violated if they have to comply a whole, you know, hallway in the in the federal courts building was closed drama drama drama. It gets referred to John Roberts because he's. The circuit is not because John Roberts is part of some crazy, deep state enterprise. Right. So again, this was just John Roberts getting something that comes up from the court below making a ruling emend referring it to the supreme court. That's not a John Roberts thing. That's just geography. Right. Well, yeah. He was the the exactly right. He's the circuit Justice. And I think the reason that his actions on that have been blown out of proportion is because the case itself is so remarkable. It's so it's unprecedented. To have a case come to the supreme court completely under seal with the potential to be heard in secret or arguments in secret. And of course, they haven't they there many many steps from that. And in fact, by the time, your listeners here, this podcast, there might even be an action that has that from the supreme court making all go away from the supreme court because as we know. This this foreign entity this mysterious, you know, whether be country company, whatever that has. Asked for supreme court intervention has not gotten any kind of response yet. All that the chief has done is to call for an immediate response from the government on the arguments, which the government had filed on December twenty eighth and then on January second, the the the group seeking supreme court intervention filed its reply, and what could happen now is exactly what could have happened on. The first day is the supreme court will say no lower court judges in this case are correct. You you must comply here, you know, under penalty of these fines, but what John Roberts did was ask for quick expedited reef on it. And that that might have been a step that was extra cautious or win farther than some people might have expected. But. I don't think it was beyond the realm of possibility. And as I say, but it could all be over in a matter of a day or two anyway, at least at this stage. I mean, it's obviously something that's going to keep on going under this Muller investigation one way or another. But we may never even know who the parties are at this point. I just wanted. I want to emphasize because we're going to get grumpy male. Joan I are not being needlessly mysterious. We don't know anything. This is just an unprecedented and extremely weird secret subpoena, and we would tell you if we knew we just don't know before. I let you go Joan a big conference January fourth the court is going to decide whether basically to have an extremely dramatic second half of this term. There's all sorts of stuff on the duck, it LGBTQ rights partisan gerrymanders questions. Already some Trump administration questions DACA transbay bay. There's just stick your hand in the bag pick something out, and it could blow up on John Roberts attempts to stay off page a one what's your guests on what the court is going to do or they going to take a couple of these big ticket items because they just have to or they going to just try to have one quiet soft gentle term and then blow stuff up next year. I think we're beyond the soft gentle term anymore. Just like you said there's there's no crying in baseball. There's no gentle at the supreme court anymore. It's just by virtue of who's up there and our times and this divided government. I think that the the most likely grant would be in the partisan gerrymander situation where it's actually an appeal from situations in north caroli-. Mina in Maryland. Essentially, forcing the justices hand on whether they're going way into these. Really politically charged disputes over how legislatures draw their election maps. We're voters are packed or cracker. Whatever into these districts that end up essentially, rigging the outcomes by virtue of where people are able to vote and for which kind of candidates in district's throughout a state. I think that they will have to take it up giving the posture that these appeals are coming from North Carolina and Marilyn so that that is one to wait into that is a case that's kind of case the chief definitely does not want to be a part of as we saw in what he wrote in the Wisconsin case of last term where he said, you know, if we start taking on these these disputes substantively, if we rule for for example, a democratically controlled legislature won't the public thing that we. Favor democrats. And conversely, if we rule for Republican dominated legislature won't people see that. I mean when he said that it will arguments he was revealing again, the lens through which he is seen the court in the public eye. And I think that can't help but affect his actions on many cases, but but this one nonetheless will be before the justices, and I think the the folks challenging these partisan gerrymanders are going to try to make the case that if the court does not intervene and set some standards they will actually be seen as part of the political problem not exacerbating, the political problem. I feel as though if this podcast had a subtext, it would be John Roberts between a rock and a hard place in about twelve different interational. And I want to just say Joan, I know you're quite literally writing a first draft of history as it's happening under your feet trying to understand John Roberts as he is. I think Morphing in front of us in some ways has to be a both confounding and fascinating. And I just I can't tell you how much I appreciate you taking a little time to help us understand as I said, I think the most intriguing quiet banned in America. So we look forward to your book. I can't wait to have you back to talk about it. Joan scoop it covers the court for CNN her book the chief the life in turbulent times of chief Justice John Roberts will come out. This March Joan thank. You so very very much for being with us today. Thank you Dahlia, it's always a pleasure to talk about the court. And that is a wrap for this episode of amicus happy twenty nineteen. Thank you. So very much for listening if you'd like to get in touch. Our Email is amicus at slate dot com, and you can find us at Facebook dot com slash and putt cast. And I am sorry about my flakes into today's show was produced by Sarah Birmingham. Gabriel rob is editor director of slate. Putt cast and Jim Thomas is managing producer of sleep podcast. We will be back with another episode of amicus in two short weeks.
Amicus with Dahlia Lithwick
Aired 2 weeks ago 3:20
AP Headline News Jan 04 2019 13:00 (EST)
Brexit may not be certain. But one thing is clear. Your business could face serious challenges. Enterprise. Arlyn's wide range of supports will help you plan innovate compete and diversify speak to your enterprise Arslan development adviser or visit prepare for Brexit Dodi an initiative of the government of Ireland. AP radio news. I'm Ed Donahue, stock soared higher from the start on Wall Street today and have stayed high in positive territory all day, so far the Dow Jones industrials reached as high as seven hundred point so far the reason for this the December jobs report, here's the AP's. Ben Thomas, the Labor Department reports for economy added a whopping three hundred twelve thousand jobs at the same time the unemployment rate ticked up to three point nine percent. But that was a reflection of a surge in job seekers, generally, a positive sign for growth and wages. Also improved with average hourly pay up three point two percent from a year ago. House speaker Nancy Pelosi says she doesn't like the profane language used by one of her new members Rashida Labe who predicted the house will impeach President Trump. But Pelosi says it's no worse than what Trump himself has said minority leader Kevin McCarthy says Pelosi should hold till the accountable. He's the speaker that individual search at her caucus. I would hope. She wouldn't others in her caucus would Maryland democrat Elijah Cummings says it may be too early to talk about impeachment. But Democrats in the house we'll start looking into the Trump White House over the last two years. President Trump set the tone from the top and his administration that behaving ethically and complying with the law is optional Kansas. Senator Pat Roberts Republican says he will not run for re election next year, despite the partisan division and conflict in Washington threatens progress I continue to believe that we can achieve results Roberts space pressure to step aside in the Senate in part because he would have been eighty four when facing voters he served in both the house and the Senate a defense official says the department of homeland security has asked the military to provide more help securing the US Mexico border, no decision yet from acting Defense Secretary Pat Shanahan, this is AP radio news. A new poll shows many Americans are worried about what is happening at the border nearly half of Americans. We ask say immigration is such an important issue. It should be a top priority for the government this year, but two thirds of them don't have much confidence that Washington can handle this far more Republicans listed immigration as a top issue than Democrats healthcare. And the economy were on the list of top issues too and about twenty five percent of Americans listed climate issues. As a top challenge facing the country a sharp increase largely driven by Democrats. Rita foley. Washington design pledging cooperation has been removed from a West Virginia city council chambers because the mayor says members of the city council aren't cooperating Parkersburg mayor Tom joy says counselors aren't living up to the motto adopted two years ago, so he removed the motto sign and stop streaming meetings live on YouTube. I'm Ed Donahue, AP radio news. Hi, it's Jamie. Progressive's number one number two imply leave a message at the. Hey, jamie. It's me, Jamie. This is your daily pep talk. I know it's been rough going ever since people found out about your Capella group mad harmony, but you will bounce back. I mean, you're the guy always helping people find coverage options with the name your price tool. It should be you giving me the pep talk. Now get out there, hit that high note, and take mad harmony all the way to nationals this year. Sorry. It was pitchy. Progressive casualty insurance company and affiliates. Price and coverage match limited by state law.
AP Radio News
Aired 2 weeks ago 4:20
AP Headline News Jan 04 2019 17:00 (EST)
Brexit may not be certain. But one thing is clear. Your business could face serious challenges. Enterprise. Arlyn's wide range of supports will help you plan innovate compete and diversify speak to your enterprise Arslan development adviser or visit prepare for Brexit Dodi an initiative of the government of Ireland. AP radio news. I'm Ed Donahue, another meeting at the White House on day, fourteen of the partial government shutdown. No agreement was reached on border security, the AP saga megani reports. There will be more meetings. The president met here at the White House with congressional leaders for the second time in three days and says their staffs will work through the weekend to make more progress on the border security. He insists be part of any deal. Senate Democratic chief Chuck Schumer says he pleaded with the president to open the government now and talk later don't hold millions of Americans. Hundreds of thousands of workers hostage Schumer says the president instead said the shutdown could last months or years. Absolutely. I said that he doesn't actually think it will. But says he's prepared to do whatever it takes to get what he wants for the border saga megani at the White House. And when he said, whatever it takes President Trump is thinking about building the wall without congrats. Final approval that we can call in national emergency because of the security of our country. Meantime, national park services a man died after falling into a river at Yosemite national park on Christmas day big gains closed out the week on Wall Street. The AP's Warren Levinson is in New York stock investors took comfort from a stronger than expected monthly jobs report and reassurances from the Federal Reserve chairman that the fed won't raise to boost interest rates were dump it's huge bond portfolio. The Dow Jones industrials rose three and a quarter percent seven hundred forty six points to wipe out the losses of a holiday-shortened trading week. Employers added three hundred twelve thousand jobs in December. There was also a hint of peace in the president's brewing. Trade war with China. Apple computer, which lost ten percent Thursday and drag the market down with it rebounded by more than four percent. The S and P five hundred gained almost three and a half percent. The NASDAQ composite rose four and a quarter. Warren Levinson, new US air strike in Yemen at targeted Al Qaeda operative accused of involvement in an attack on the US Cole in two thousand this is AP radio news. Kansas Republican Senator Pat Roberts is not running for re election next year. The best is yet to come. I attend to sprint to the finish line. The Senator faced pressure to step aside in part because he would have been eighty four when facing voters in Kansas next year. There's no host for the Academy Awards next month. I yet Kevin Hart bowed out following the revelation of some homophobic comments. He made earlier former Oscars host, Ellen Degeneres who is gay thinks heart should be the host you have grown. You have apologize. You're apologizing again right now you've done it. Don't let those people win host the Oscars Kevin Hart was onto generous and show leaving here. I'm promising I'm evaluating this conversation. Ellen Degeneres said that she called the academy this week to urge that Kevin Hart be brought back to host and was told that officials would be thrilled. If he did, I'm Ed Donahue, AP radio news.
AP Radio News