Leah Litman
Appearances
Pod Save America
Trump's Justices Turn On Him
So that is just on hold until further action by the D.C. Circuit.
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Trump's Justices Turn On Him
It is, as we say on Strict Scrutiny, just total fuck shit, right? Like, you are not ordinarily supposed to be able to appeal a ruling that does nothing, that is not final, that leaves additional things to be determined.
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Trump's Justices Turn On Him
And Judge Boasberg, as you note, didn't hold anyone in contempt, and he held out the possibility that he would never hold anyone in contempt so long as the government returned people from El Salvador. So I don't know what the F the D.C. Circuit panel thought that they were pausing, but obviously the prospect of holding the Trump administration accountable –
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Trump's Justices Turn On Him
under the law was just too galling for them to note, and they had to take a pause over that one.
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Trump's Justices Turn On Him
That's true, although the president can issue a preemptive pardon here before any criminal prosecution would begin. And it's possible, and I think even likely, that in the event the president did that, I don't really see the federal courts then trying to go back and say, well, even though he basically pardoned the offense up until this date, that offense has continued.
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Trump's Justices Turn On Him
I think there would be difficult questions about whether it is indeed a new offense, and my guess is the federal court would probably stand down in that situation.
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Trump's Justices Turn On Him
Short answer, yes. You know, I think at minimum, it evinces a sense that the seven justices in the majority aren't willing to take the Trump administration at their word because, of course, the Trump administration was saying, well, we're giving these guys like reasonable time and reasonable notice to file their challenges when obviously they weren't.
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Trump's Justices Turn On Him
And the administration has basically been thumbing their nose at the Supreme Court's directive and Judge Sinis's order to to bring back Mr. Abrego Garcia. And so I think the Supreme Court looked at all of that and realized, look, the prospect of the government shunting these people off to El Salvador and then never bringing them back is so real and the harm is so profound.
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Trump's Justices Turn On Him
We need to order a halt until we figure out what is going on and whether the administration is indeed providing the individuals with the notice that we said was required in our previous decision.
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Trump's Justices Turn On Him
No. One is that's basically the point in Justice Alito's dissent. He says, you know, we should assume that the Trump administration is going to comply with our previous order directing them to provide reasonable time and notice. And he faults the seven justices who halted the deportations for not doing so. And I just want to kind of pause on the irony that.
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Trump's Justices Turn On Him
The Supreme Court basically did in this case what they faulted Judge Boasberg for doing previously, namely halt on a wholesale basis a bunch of deportations rather than requiring every individual to challenge deportation. their deportation themselves.
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Trump's Justices Turn On Him
And I think that underscores what we were talking about, which is the Supreme Court realized the error of their ways, that there actually needs to be this wholesale pause because if there isn't, the government is just shuttling people around between jurisdictions trying to find some court somewhere that will allow them to expel these people without due process.
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Trump's Justices Turn On Him
Yeah. So he basically faults the court for not adhering to their normal process. And the things he points out the court did were, one, to grant this pause in deportations before waiting to hear the government's response is one thing. Second is the Supreme Court acted by halting the deportations before waiting for the U.S.
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Trump's Justices Turn On Him
Court of Appeals, the intermediary court between the trial court and the Supreme Court, to act on the request to halt the deportations. And so those are two kind of abnormal procedural moves the seven justices made that Justice Alito says, what reason is there to do that? But the reality is, of course, we're not dealing with ordinary circumstances.
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Trump's Justices Turn On Him
So you need to adapt in those circumstances where, again, it looks like the administration is trying to evade any prospect of judicial review by just quickly expelling individuals without any prospect of judicial oversight.
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Trump's Justices Turn On Him
That has happened before. It happens in some courts of appeals, and it does sometimes happen in the Supreme Court. It's exceptionally unusual.
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Trump's Justices Turn On Him
And honestly, a part of me read into this the idea that not only do the seven justices think that the Trump administration might be acting in bad faith, maybe they think Sam Alito is too, because if he sat on his dissent and just didn't release it until it was too late, until after the administration had expelled the many individuals to El Salvador...
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Trump's Justices Turn On Him
Then they would be facing the situation once again where they're trying to order the administration to return people from El Salvador. And so a part of me wondered if that is what was happening and maybe that's why he's so mad, although he's usually mad.
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Trump's Justices Turn On Him
Yeah, so there's an odd wording in the order which just noted there's an application that is pending before the court. The usual wording is the application was presented to Justice Alito and referred by him to the court. That's not what the order said.
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Trump's Justices Turn On Him
And so that, too, lends itself to some speculation of, was Sam Alito just sitting on this application, not referring it to all of the members of the court, again, in order to buy the administration time? And we don't know whether that did indeed happen.
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Trump's Justices Turn On Him
I'd just like to note to any member of the Supreme Court that I am on signal if you want to accidentally add me to your group chat and let me know what's going on. But that, too, is a possibility that the seven justices were just concerned he was trying to run out the clock.
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Trump's Justices Turn On Him
I think it was an incredibly powerful writing. I especially appreciated his call to other judges and to the executive branch to insist that the executive branch abide by the law. And I thought that was especially pointed because many of the Supreme Court's actions to date
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Trump's Justices Turn On Him
have looked like attempts to avoid confrontations with the Trump administration and to avoid really holding their feet to the fire and them accountable to the law, maybe out of concern that they just wouldn't abide by the court's order. But that's an unsustainable state of affairs. You can't just give the administration the green light and not do anything.
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Trump's Justices Turn On Him
because you think they will disobey a court order, you're in effect like allowing them to violate the law if that's what you do. And so I really appreciated Judge Wilkinson coming down hard on that point and really writing, I think, for the Republican appointees on the Supreme Court.
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Trump's Justices Turn On Him
boss donald trump were at the white house easter egg roll on monday where they both commented on the situation as a jazz combo played in the background pete's doing a great job everybody's happy with him we have the highest recruit recruitment numbers i think they've had in 28 years uh no he's doing a great job it's just fake news they just bring up stories you know what a big surprise that a bunch of uh a few leakers get fired and suddenly a bunch of hit pieces come out
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Trump's Justices Turn On Him
It will make Sam Alito very mad if this makes a bestseller list.
Pod Save America
Trump's Justices Turn On Him
That is on hold because the 2-1 D.C. Circuit panel, two Trump appointees in the majority, paused the contempt order, which basically prevents Judge Boasberg from moving forward. And he had asked the government to submit declarations or to purge their contempt by bringing back everyone from the El Salvadoran prison that the government had wrongfully sent there.
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Pope Save America
Yeah. I mean, the Chinese are suffering economically from the tariffs. There are projections that 60 million Chinese will lose their jobs. The forecasts on economic growth are being revised down. We buy their stuff more than anyone else in the world if they can't sell it to us. Those ships – those empty ships are bad for them.
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But the problem with the trade war with China is they face no political pressure. She's not sitting around checking Dave Wasserman's Twitter feed to see how things are looking in the 2026 midterms. And he doesn't have to worry about Congress. He can just, as they are doing, just enact a stimulus plan to offset the economic damage, the short-term economic damage of the tariffs. So
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Trump will face political pressure in this country and adverse effects that she will never face, even if their economy ends up suffering more in the short term than ours does.
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If you were to take these people at their word, and you probably shouldn't, frankly, most of them are liars and have no understanding at all of how governmental fiscal policy works. But if you took them at their word, if you just did that as a thought exercise, nothing can pass. Because you have a group of people who say they will not pass a bill that cuts Medicaid above a certain level.
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You have a different group of people who say they will not pass a bill unless it cuts Medicaid below a certain level. Like the red lines are crossing left and right. So if you took them at their word, they cannot get it done. Will they find some way to get it done? Maybe. I mean, they have done everything Trump's asked them to do thus far.
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Democrats have been quite skeptical that they would pass this budget resolution, and they did. I mentioned this on the show recently, last week, two weeks, six months ago, who knows. But one thing they could do is just they could punt. They could extend the tax cuts for a year or two.
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unpaid for, or with some non-Medicaid spending cuts where you're just sort of paying a toll and say, because of the economic uncertainty of the tariffs, the last thing we want to do is risk raising taxes on every American. So we're going to do this and come back. Now, the downside to them is they could very much lose the House in the interim.
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And then Trump is forced into a negotiation with Democrats. But they can't let taxes go up on every American. Like that is just something they absolutely cannot do. And if they cannot figure the cuts out in the interim, then I'm not sure what other option there is.
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Pope Save America
He's already started – he's already – we don't have to have this conversation today, but there's a longer conversation about Democratic strategy here and what they should be doing that they may not yet be doing. But he's already started the – Democrats want your taxes to go up because we're all opposing this bill. And so it's an inelegant solution for the Republicans for sure.
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But it is one, if they cannot square the circle on these cuts, someone has to give. The moderates have to give or the conservatives have to give. And then you have a whole set of different problems with the Senate and getting to your 50 votes there. If they can't do that, they're going to have to do something. And that could be a punt. Yeah.
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Yeah, the devil is in the details here for sure. It would certainly get them some savings which would reduce pressure on the cut side of it. But it's impossible. It's almost impossible to imagine this passing.
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Every time – this keeps getting floated and Republicans keep shooting this down from – like Republicans who rarely disagree with Trump shoot this idea down because the idea of taxing rich people is impossible. And just even if you're being generous about this, they're – their long-held doctrinaire Republican view that you never raise taxes, right? That's the Reagan rule, the one that H.W.
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Bush violated and was primaried because of it and lost re-election. So I can't imagine doing that. Now, carried interest loophole, you could probably find some more support for, but once Trump's new VC buddies hear about this, they're going to blow up the White House, and it's going to come to an end. Like, I just don't think either of these are happening.
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No, I'm just kidding. Who's the one person in the studio laughing at that joke? Reid.
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This is a fight we can win. It's not guaranteed. We don't have the votes to stop it. But cutting Medicaid is way more unpopular than attempts to repeal the Affordable Care Act or Trump's first term. You have 80% of Americans opposing Medicaid cuts. More than 50% of Republicans, 75% of independents. This is incredibly popular. It is ingrained in people's lives.
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Pope Save America
It is how many, many Americans get health care. Something like 40% of births in America are paid for by Medicaid. And so yes, Republicans are craven. Yes, they do terrible things. We may not win this fight, but it's one we can win. There are a lot of fights that just they're going to do with like the confirmations. They're just going to do what Trump wants, and it's not really going to matter.
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This is one where the politics are such that if we put sufficient political pressure on, we could actually stop this.
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I mean, the sum total of what these guys said in their testimony, what Caroline Leavitt says at the press conferences, how Trump answered questions of Kirsten Welker, the court filings is, What they're doing is indefensible. It's indefensible morally. It's indefensible legally. It's indefensible politically.
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You can't answer the questions because basically the FBI director has to pretend to not understand the Constitution to be able to answer this question because the Constitution is crystal clear on it. And even if you want to debate the use of the word person in there, the courts have ruled on this, as you pointed out on Tuesday's podcast, as recently as like three weeks ago.
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Yeah, and has been for ever. I mean, it's embarrassing. If it wasn't so horrifying, it'd be embarrassing, frankly.
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Pope Save America
I think if we're going to get a pope, we should have an American woke pope from Chicago. That seems great, especially one who hates J.D.
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Pope Save America
It's just someone known for seeking legal advice before he does anything. Cause you know, the one thing I say about Trump is dot the I's and cross the T's legally.
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We know they have none. You know it is almost certainly illegal to send people to Libya.
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Pope Save America
He's a bulwark pope. Yeah, a lot of people posted that. It's so weird. They claim that they – I saw love into the T for trademark. I mean like judging wokeness on a Pope scale, right? Like the Pope is going to have a series of views that we do not love on abortion, LGBTQ rights, all of those things. But the fact that he has leaned so hard and very recently into –
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Yeah, normally it's Bad News, Bad News, but this week we'll do Good News, Bad News.
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This is very Matt Gaetz, Pam Bondi, which is like, be careful what you wish for. The idea that Judge Jeanine Pirro would have a high-level appointment in the Trump administration has been a running joke for nearly a decade. And thus, it has become true.
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Pope Save America
We're not laughing anymore. Because the U.S. attorney is a very important job. The U.S. attorney of D.C. is a very important job. You are not just a U.S. attorney for federal crimes. You're also the local prosecutor because D.C. is not a state. You have... you end up taking a lot of governmental and political cases because Washington, because the government's there in DC.
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So this is not, I mean, it is bad that Trump's OAN spokesperson is the acting US attorney in, uh, New Jersey, but it is even worse to have someone in DC. They can do much, much more damage as Ed Martin was doing as he was, uh, Threatening Chuck Schumer and doing all the other crazy stuff.
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Do your best, Judge Janine. It is like how... Like you said, it's not really funny, but Tom Tillis is like, I am going to make a bold move. I'm going to do the right thing. And now he's going to be fucking forced to vote for Judge Jeanine Pirro.
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A humane view of immigration, how we treat migrants that is in direct opposition to how Trump is doing it seems very positive for what is true, like obviously a major political issue in this country, but a global issue for the next generation. And also just enjoyable that the MAGA right is going bananas about this. They're so upset. They're so angry.
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You hit in your intro two key points. One, she never finished her surgical residency and she does not have an active medical license. Her medical license expired in 2024. She has been up until... She stopped having a medical license, but a sort of preventive holistic medicine doctor in Oregon. But she's best known as a – she's a very big figure in the wellness community.
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She's a big supporter of Robert F. Kennedy Jr. for a long time. She's quite controversial for a number of reasons. She has a lot of positions on... You don't say. I don't say. But there are two reasons she's controversial. One is she has a lot of non-scientific-backed positions on disease prevention and other things. But the other thing is that she's essentially a wellness influencer.
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She is constantly promoting... supplements, vitamins, other things with very limited scientific backing. But she does it by publishing affiliate links on her social media pages for which she makes money.
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And even more controversially, she's often promoting products from a company called TruMed, which just happens to be run by her brother, Kelly Means, who is also an employee of the Department of Health and Human Services. And so she has none of the credentials.
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Even if you put aside her positions and the grift on the wellness side with the supplements and the whatnot, she doesn't have any of the credentials that a surgeon general normally has, not the clinical experience, not the medical experience, not the- I was going to say, like America's top doctor, like being a doctor, being a practicing physician.
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The tree thing, let's not kink shame her on that. It's not for me to judge how she found true love. I didn't kink shame her.
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Because we talked this morning when we first, before we saw the tweets, we were like, when is Trump going to take credit for an American pope? And now his base is freaking out about the woke pope. It's so funny.
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And a whole bunch of people deep in the CIA also went down, large portions of the NSA. She is one of the most influential people in the world right now.
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That's what I'm saying. We've seen the white smoke. He gave a speech, but can he survive the loomering?
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I am so exhausted by this conversation because I don't even know what we're supposed to judge Biden by here. Like, was he better than debate? Yes, he was better than he was on the debate stage. Compared to a typical – an average politician anywhere in America delivering a message, was he good? No. It was like – there were some good parts. He had some funny lines.
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Most of it was like kind of hard to follow politically. Dr. Biden had to step in on a couple of occasions. He survived it, I guess. But to what end? Who are we trying to convince here? What's the audience for this? The American people are pretty decided on the question of, was Joe Biden too old? And they were decided long before the debate.
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And I don't know that one interview or two interviews or a thousand interviews is going to change. Nothing's going to change that perspective.
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Yeah, you need an answer to the question. Like we, I don't think we, we didn't talk about it on this podcast. We talked about it on Terminally Online, but Elizabeth Warren had a brutal answer when she was pushed on this on a podcast. Yeah. And that's the first of many, right?
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And you can see some of these people when they start running for president in a couple of years, particularly those people, maybe like Pete Buttigieg, who I'm sure will have a good answer to it, but who served in the Biden administration or if Kamala Harris were to run again, she's going to have to answer these questions. She'll probably have to answer them when she does her first interview
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which he still has not done since the election ended. To me, on one hand, I am sympathetic to Biden's desire to defend his legacy in the face of these books coming out. I'm sympathetic to the people who work for Biden trying to defend a president that they have great affection and loyalty to and the work they did. I've thought about this. If Barack Obama had lost
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to Mitt Romney in 2012, I would have been an absolute fucking lunatic trying to do everything I could to reshape, it's not his fault, his legacy, look at all the great things we did. So I understand that impulse. But there is an element here of reading the room. And there is so much bad shit happening in the country. The threats are so dire.
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And the threats are so dire to the things that Joe Biden dearly and sincerely cares about, that this media tour is about Joe Biden. It's not about Donald Trump. It's about Joe Biden defending himself and his legacy.
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It's not about, which I wouldn't recommend this, but it's not about using the platform a former president may have to criticize a sitting president, to try to shift the public debate in some way or the other. It's about, he's made it about himself.
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Pope Save America
And that, I think, was someone that is... Yeah, which he made the last fucking year of his presidency about, which is one of the reasons we're all here. And so that, to me, is frustrating. You know, there's been this, like, is it really bad that Biden's back out there again politically? I don't think anyone cares, is the truth. Just no one is... No one's paying attention...
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Pope Save America
It is just – this was the problem in the election is the American people decided how they felt about Joe Biden. Nothing he said or they did could change – was going to change their mind about it because it was right before their eyes. It was like an obvious thing that he should not run for reelection. And so they made up their mind and went.
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And so I don't – it's just it's not going to change anything at all, I don't think.
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I think – yeah, I think that's true. I think the press is going to – like, this is going to be a hurdle that attests the press is going to – and I use the press in the broadest thing. I mean, Kristen Walker on Meet the Press to the podcaster who is doing the interview. Like, Elizabeth Warren got taken down on a podcast, not – on the Situation Room or whatever. Right.
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I think there's just two more things I want to say. I know I said I didn't really want to talk about this, but now I have a lot to say about it. So I apologize for that. No, fine. The one thing that I found very frustrating is Biden can't – I mean, I know this is the – like, we know him. This is the pride in him.
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But it is – I find it very aggravating and infuriating – frankly, infuriating when he says that he thinks he would have won because I feel like that's so – it's politically insane, right? It's just – it's like detached from reality.
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But even if you truly believe that, to verbalize that in such a direct way repeatedly is, to me, so disrespectful of Kamala Harris, who he put it in an impossible position. In a gazillion ways, right?
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From like some of the things she had to take on as vice president to the three weeks in whatever it was between the debate and when he actually got out, the month, I guess 30 days or whatever it was, like that he took that time, like answer that question better in a more respectful way to your vice president who in a different world would have lost his vice president.
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If he had stayed in the race, she would have lost his vice president and she would be the front runner for the Democratic nomination. She may still be that right now, but it's different because she was the nominee who lost. And so it's just like – so that angers me.
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And the second piece is there is just like – it is deeply naive for Biden and his team to think that he can really change the conversation around his legacy right now with interviews. I think there's a real chance that decades from now, Biden's legacy will greatly improve people's minds because people will look back at some of the really important things he did.
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He beat Trump, the pandemic, maybe some of the long-term investments he made really bear fruit. And he can end up like someone like Harry Truman, who was a one-term president who was left very weak and then ended up as being seen as one of our greater presidents. But that happens over time. It's not something you're going to solve on the view. And so it's like step back.
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And as someone who likes to pick a Twitter fight with J.D. Vance, you probably feel some affinity with this pope.
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Like putting – reminding people of why they didn't want you to run in the first place is not going to help that conversation. So it's just like you have to – if you really truly believe that the work you did was good, then you have to trust history to judge it correctly.
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We talked about Donald Trump's ill... Speaking of Joe Biden, we talked about Donald Trump's ill-fated efforts to blame the economy on Joe Biden and why that was a strategy doomed to fail miserably. And we took a bunch of really interesting questions from the listeners, from... It was a great episode. Caroline was amazing as always.
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So I think what is going to happen is the district court proceedings are going to continue to play out. It's likely that Kilmar Abrago-Garcia's lawyers might file a motion to show cause as to why the government isn't in contempt of the lower court ruling directing the administration to facilitate Abrago-Garcia's return. There's always some discomfort with using out-of-court statements.
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in court to actually prove them. And so there is going to be some tension with well, do you actually take Trump at his word when he wasn't signing a sworn declaration, or hadn't been administered an oath and take that at face value and use it against him. But I think it's not just that it's the fact that as you say, so much time has passed, they have done diddly squat.
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And everybody knows that there is an agreement that obviously they have some leverage on.
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You know, this is some of the difficulty that the Supreme Court, I think, put the lower court in because they told the lower court you cannot actually effectuate the return. That is, you can't specifically order the president to do X, Y or Z. And so that gives the administration some cover to do these antics where they, you know, ping Bukele and say, wink, wink. Nudge, nudge.
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Won't you return him? And then Bukele says, no, I will not. And then everyone around us knows what's going on. But it's going to be difficult for courts to say we all know what's going on here. Right. Like they want some direct evidence to kind of prove that. I think there is enough for them to say the administration isn't facilitating the return, but it's going to be a fight.
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Yes, unless the Trump administration actually gets Mr. Obrego Garcia, as well as the other individuals that other courts have now concluded were wrongfully deported back. There's no reason why their lawyers aren't going to ask the Supreme Court and other appellate courts to get the administration to actually do something.
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That would be ideal. You know, what's taking so long is the Supreme Court created this situation where they forced everyone to use this other procedural mechanism to challenge the Alien Enemies Act. Obviously, you can't use the Alien Enemies Act here. You know, it's not just the declassified intelligence reports and whatnot.
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We can all read and the statute says it applies to foreign nations when there's been a predatory incursion or invasion. None of these things are true here. So...
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I hesitate to say no court will because I am well aware of some of the individuals that Donald Trump has appointed to the lower courts. You know, there was the classic let me order a nationwide ban on medication abortion, you know, doozy from Matthew Kaczmarek. There's the Eileen Cannon specials of basically single handedly preventing abortion. Right. Like, again, we can all read.
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The Constitution says no person shall be denied life, liberty, property without due process. It's not limited to citizens. Also, no one is asking for full-blown trials for every individual who is part of immigration proceedings. All they're asking for is justice.
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some sort of hearing before, by the way, an executive branch official, like an asylum officer or immigration judge or board of immigration appeals. And it's not my fault that Donald Trump has fired a bunch of people, made civil service intolerable, and is terrorizing bureaucrats. They could offer these hearings if they wanted to. Instead, they have opted for effectively concentration camps.
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Just because the Supreme Court says something does not make it true, John.
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And this is one of the big lessons of my book, Lawless, because while the Supreme Court said the government acknowledged that people were entitled to notice and the opportunity to challenge their detention, in fact, the actual papers that the government filed said they were under no obligation to modify when an individual was deported or expelled in order to give them time to challenge their deportation.
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The government took the outlandish position that Basically, everyone walks around with habeas petitions in their pockets and boots. And so whenever they are arrested or removed, they have an opportunity to challenge their detention because they can just whip out that ready-made habeas petition that they all have, you know, in their wallets and handy.
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So, you know, yes, the government kind of acknowledged that everyone is entitled to due process, but they just define that to basically mean nothing. And the Supreme Court knew that.
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You know, I think part of the difficulty is the government is trotting out so many different bases for deporting and expelling people that even if you were carrying around a handy habeas petition challenging one possible basis on which the government might send you to a foreign mega prison, no guarantee that that's the actual ground they would invoke.
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You know, I might use all of the adjectives, but I'm not breathing easy just yet, in part because these cases have not made their way up through the appellate courts. And I don't think it's an accident that lower courts are more uniformly ruling against the Trump administration than the appellate courts or Supreme Court. So lower courts, they tend to be a little bit less ideological.
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They're oftentimes appointed with the consent of the home state senators. And so even people appointed by Trump in states with Democratic senators, they're not going to be as cray-cray as the people he's putting on the Supreme Court or the appellate courts.
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I hesitate just to say it's unconstitutional because it manages to pack in like at least five different constitutional violations to a pretty short executive order. So, yeah, that one's really wild.
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So I started thinking about writing the book after the court overruled Roe versus Wade. And it seemed like a moment when more people were paying attention to the court and understanding just how broken the Supreme Court was. You know, from my own perspective, I was pretty nervous and scared about the Supreme Court back in 2011 when I was clerking for the court.
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And they came within one vote of dismantling the entire Affordable Care Act. and health insurance for so many people based on some cockamamie theory that the government might force us to eat broccoli one day. And so I thought people should be more worried about the Supreme Court back then.
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Pope Save America
Almost 10 years later, when people were more concerned, I thought I actually want to talk to people about just how bad things have gotten because there will inevitably be a moment when people come to believe that Maybe the Supreme Court isn't actually so bad. And I want them to understand like how the court got us to this moment we are in and just how messed up the court has become.
Pod Save America
Pope Save America
Yeah. So Origins, it's really an amalgamation of different grievance stews that they kind of threw in together and then decided to base a political movement around. Because when the political parties were going through this bigger alignment after the civil rights movement, you had the Republican Party decide, well, we want to cater to white Southerners and Blacks. conservative Christians.
Pod Save America
Pope Save America
And so they were adopting positions that almost by definition were not going to appeal to a majority of the country and in particular groups that were newly included in civic society. And so they kind of leaned into minority rule and having minority rule requires them to control the Supreme Court.
Pod Save America
Pope Save America
So they recognize we kind of need the Supreme Court in order to impose our wildly unpopular weirdo views on the rest of the country. And so they went about trying to control the Supreme Court, and they successfully took it over through different factors I'm happy to talk about. But that's kind of the high-level story.
Pod Save America
Pope Save America
And one of those factors relates to this greenhouse effect that you just alluded to. So the greenhouse effect refers to This idea that once Republican presidents appointed Republican justices to the Supreme Court, they drifted left because they would read news coverage about them.
Pod Save America
Pope Save America
And again, because the median person in the country doesn't think women should be stripped of rights, doesn't actually think the mega rich should control politics, when the Republican justices would write those things and opinions, they would be criticized. And they didn't like that. And so they would drift left.
Pod Save America
Pope Save America
And the greenhouse effect was named for former New York Times Supreme Court reporter Linda Greenhouse. So they created their own ecosystem, like the Federalist Society, that would provide the justices with affirmation for doing Republican things. So they got some validation and affirmation. And they basically had built-in fans, for lack of a better word.
Pod Save America
Pope Save America
I still think there is considerable reluctance to do so. I think people tend to gravitate toward focusing on the differences between the Republican appointees. So we are fed a constant stream of stories about, oh, my gosh, Amy Coney Barrett has not voted with the other Republican appointees in every single case. Doesn't this prove that she is, in fact, a big supporter?
Pod Save America
Pope Save America
secret liberal and the court is super moderate. No, in fact, it does not. And I think people also who are part of the legal profession want to believe that the Supreme Court, the law, the legal profession is different than politics. It's something special. It requires some specialized training. And it does in some respects.
Pod Save America
Pope Save America
But the reality is how the court is operating now can be explained with reference to politics and ideology and trying to report on Supreme Court decisions and litigation without doing so is borderline malpractice at this point.
Pod Save America
Pope Save America
You know, I don't know where to start with that. You know, I could remind you or ask you to remind all of the people that were saying that about Neil Gorsuch that in the last few weeks, Neil Gorsuch looked at the book called Pride Puppy and insisted it had bondage workers and sex workers, when in fact, all it had was a woman in a leather jacket at a pride parade.
Pod Save America
Pope Save America
So maybe not such a legal super genius, or maybe he can't read. I don't know. But as to like... Why people want to continue to insist that, no, this isn't just political. You know, doing the podcast and studying the court has given me insight into the minds of Sam Alito and Neil Gorsuch, and those are really dark, bleak places.
Pod Save America
Pope Save America
I don't know that I have as firm a grasp on why the legal commentariat or legal profession sticks to this idea that we shouldn't explain the court and its decisions and its reasoning in terms of politics or ideology. Some of it comes from, for people in the media, a desire to appear unbiased and to do both sides. I think some of it comes from people in the legal profession.
Pod Save America
Pope Save America
Yeah. Is Pink Pope Club... You're all singing it now. Is Pink Pope Club an official episode title?
Pod Save America
Pope Save America
Again, a desire to lean on this idea that there is a specialized training and expertise, which again, I can see there is, but they want that to matter more than politics when we need to acknowledge both.
Pod Save America
Pope Save America
And part of why I wanted to write the book is when you put out the actual reasoning in the decisions and you situate that in terms of here were the political talking points that were happening 20 years before, 10 years before, the language is just totally ripped from it.
Pod Save America
Pope Save America
I mean, John Roberts, again, that super genius guy who was just calling balls and strikes, who's super modern institutionalist, literally struck down a key provision in of the Voting Rights Act Section 5 in Shelby County by saying it illegally discriminated against who?
Pod Save America
Pope Save America
The former Confederacy, the poor former Confederate states who were victimized for being called out for their history of racial discrimination. And guess whose objection that was to the Voting Rights Act all along? Segregationist Strom Thurmond, who literally called it, right, like political vendettas and retribution and a campaign against a certain part of the country. So
Pod Save America
Pope Save America
Yeah, he whitewashed it, sandwashed it a little, but it's still the same stuff.
Pod Save America
Pope Save America
Yeah, so in addition to tearing down the institutions, I mean, I think we should understand what the Republican Party has done with the Supreme Court as effectively weaponizing it and capturing the machinery of the state. Because through the Supreme Court, they basically made it so Joe Biden couldn't govern. They took one of his most popular policies, student debt relief, and blew it up.
Pod Save America
Pope Save America
And then you had people blaming Biden and the Democrats for not doing student debt relief when, no, no, no, no, that was the Supreme Court. So as to this institutionalism, institutionalist thing, I agree that is just a big challenge for people on the left, Democrats, center left. You know, I believe there have to be institutions. I believe in the rule of law.
Pod Save America
Pope Save America
It just also is the case that I look at the institution we currently have, the Supreme Court, and it is not functioning as an institution that is part of a constitutional liberal democracy anymore. should function. And so it needs to be changed. I don't think that makes me not an institutionalist.
Pod Save America
Pope Save America
I actually think that makes me an institutionalist because I actually want to bolster and make this a legitimate functioning place. As to how we get there, I'm not a big fan of this federal society of the left in part because the federal society works in part because the It's based on fringe theories. They are a minority, right?
Pod Save America
Pope Save America
It's easier to credential people in that system and have those network effects when you're operating with smaller numbers. I think there are parts of the conservative legal movement the left should replicate, campaigning against the court, making the court part of politics. That should absolutely be part of the strategy, like identifying, again, a kind of –
Pod Save America
Pope Save America
common punching bag that we can all mock and make fun of and run against. Like that's part of what makes politics fun and it can be effective as well. And so I think there are components of the conservative legal movement strategy that can be replicated, some that can't and some that shouldn't be.
Pod Save America
Pope Save America
Well, thank you so much. And if you're on the fence, I just say, try to make Sam Alito even madder than he already is.
Pod Save America
Pope Save America
Well, I hate to disagree with Mr. Lutnick here, but they did not get this done in three weeks. This deal has been under some form of discussion since Trump was president that first time. It's not particularly related to Liberation Day. It's not a deal. It's at best a framework of a deal. It's maybe a – to borrow a phrase from Trump, a concept of a deal. Like we have some outlines.
Pod Save America
Pope Save America
We don't know when it's going into effect. Nothing's been signed. But the things to know here are – Trump's completely ass-backward, asinine understanding of global trade suggests that if you have a trade – the United States has a trade deficit with that country, then we are losing somehow. We have a trade surplus with the UK. We are winning in this scenario.
Pod Save America
Pope Save America
So it's like what – this is not – like if theoretically there's more we can open up – like one of the things in here is they're raising the quota on US beef going to the UK. That's fine. That's like a totally fine normal thing. This is not going to change very much at all. The fact that it's the UK is very telling because as I mentioned, it's a deal that's been worked on for years.
Pod Save America
Pope Save America
It's also our closest ally with a special relationship with a very meager trading relationship. So it's a pretty easy deal to get done if you're looking to show – some victory. And Letnick is celebrating that the 10% tariffs are on there. What he's doing, he's celebrating the continued 10% tax that American people will pay on goods coming from the UK, unless you buy Rolls Royce.
Pod Save America
Pope Save America
I mean, this also like fits in with the news that Trump proposed to Mike Johnson a loan program for newborn babies. to offset the cost of tariffs because 99% of strollers, car seats, baby toys, everything come from China. So we're going to put babies in debt to cover the tariffs? What are we doing? You have to give the baby back? Yeah, I'm not sure.
Pod Save America
Pope Save America
No, I don't think it works. It doesn't work as a trade strategy. It doesn't work as a market strategy. The markets went up this morning, but it's not because of this deal. It's because the prospect that we're going to have negotiations with China next week. That's what people care about. Our relationship, our political relationship with the UK is quote-unquote special and important and historic.
Pod Save America
Pope Save America
Our trade relationship with the UK is fairly minimal compared to some of the other like Canada, Mexico, China, the places that are most affected by this. And people – it's all – like reality sits in when it comes to the economy. You can't – You can't fake it. People are going to see prices go up. They're going to see empty shelves. The markets could make- Just ask Joe Biden. That's right. Exactly.
Pod Save America
Pope Save America
The markets could possibly go up on a deal here or there, but what they're really supposed to do is project the medium and long-term state of the economy. And if the economy performs as Jerome Powell thinks it might, then that's going to affect the market too, no matter how many deals Trump announces between now and then.
Pod Save America
Pope Save America
And that the people who work at the docks and drive the trucks and the stores to sell goods lose their jobs. That's a good thing. I mean, he really is a walking, talking argument for making econ a required course in American high school.
Pod Save America
Pope Save America
It's like he just, the fundamentals of it, he does not, like, if he had gone to and paid attention to the first three weeks of Econ 101 at any university in America, we would not be in this problem. Well, that's his excuse.
Pod Save America
Pope Save America
Of course, he wrote a thousand things before the election trying to rationalize terrorists. But, you know, whatever his queered quote was about how the tariff gun always stays in the drawer. So he is trying to work around the insanity and ignorance of his boss and other people.
Pod Save America
Pope Save America
Yes. I mean, he's going to end up working somewhere with Gary Cohn one day. And the rest of these people, they view their job as to do what Trump wants, regardless of how stupid that is.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
So the first chapter in the book is partially about the rise of originalism. And I'm definitely sympathetic to the idea that for some people, originalism was this kind of pure, on its own, inherently correct method of interpreting the Constitution.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
But originalism to other people was also this intuitive way of explaining why certain decisions of the Warren court, as well as Roe versus Wade, was wrong. Right. Like they knew they had an intuition that, of course, these things cannot be correct. And originalism was an easy way of explaining why that was so. And then for other people, originalism was a way of advancing an ideological agenda.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
You know, Ronald Reagan's attorney general, Ed Meese, you know, just stood up in front of the ABA and was like, yeah, originalism, that's a way to roll back civil libertarianism. That's a way to advance, you know, our traditional social issues platform. You know, that's also what Stephen Markman, who was one of the assistant attorney generals, wrote about originalism again in the 80s.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
So I think originalism has always been different things to different people. And like any method of interpretation, it has its virtues and it has its vices. It was sold as it's principled, it's neutral, right? It's easier to apply than other methods. I think those things are debatable, but that's not to say people didn't believe them. And that's not to say people weren't pushing originalism for...
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
never those reasons. So I agree with you that originalism, textualism, any method of interpretation is always going to appeal to some people just on its own terms. But yeah, then along comes Sam Alito, and you put any method of interpretation in his hands, and he's going to do whatever the fuck he wants with it.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
And the Republican judicial selection machine found enough people like that and perfected the process such that they could give them this tool That sounded really nice in judicial confirmation hearings and sounded objective and could be explained in, again, like abstract technical ways, but everybody knew what they were going to do with it.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Yeah, so I definitely think the Trump administration is doing the Supreme Court a real solid just by drowning out coverage of what they might be up to because the court has a bunch of big cases on their docket. So there's the gender-affirming care ban that you noted, United States v. Scrimeti. That's about whether laws that ban gender-affirming care trigger violence.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Yeah, no, I mean, I definitely think there is some aspect of that. And I think when you say it is about culture, you know, I view the Republican appointees on the Supreme Court as being acculturated in this like conservative grievance industrial complex that has taken over the Republican Party. You know, that is the energy that defines them.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
They view, you know, Democrats, progressives, anyone that doesn't agree with them as conservative. attacking them and coming after them. And so they have made the law kind of fashion based on the emotional needs of at least five men and maybe Amy, right?
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Who believe that equality is actually a form of discrimination and calling racial discrimination, racial discrimination is actually discrimination. Like it's just this nutty kind of worldview where they have such strong main character energy that they can make again, LGBT storybooks about them.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
They can make the establishment clause into rank discrimination against religious and social conservatives.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
And so when that is the worldview that they were socialized in, and when that is what is being repeated to them in this media ecosystem and political and cultural network that they are a part of, that is, I think, how they perceive most of the cases and many of the issues that come before them.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Definitely. And I hear a lot of what you are saying in the comments that I see on social media from many of the lawyers who are in the federal society, but not in the inner circle of the federal society. Because they'll make jokes about how, well, Leonard Leo didn't tell me who I should vote for or Leonard Leo didn't tell me what I should think. And it's like, that can be true.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Of course, they run all of this programming where they are not necessarily getting to know every single lawyer who attends all of these bar association events in random cities and at different schools throughout the country. And yet, that is also part of what gives them purchase and cover to do the other things that Leonard Leo is doing. Because if you don't understand...
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
heightened scrutiny, whether courts have to look closely at them or whether courts are just going to basically sign off on them. That could obviously have a ton of implications for a Republican-controlled Congress adopting a federal ban on gender-affirming care or on the constitutionality.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
how this debating society, right, and how this institution that just provides forum and networking can also be engaged in this system of selecting nominees, figuring out who's going to do the things they want to do, then you are kind of getting the, you know, wool pulled over your eyes. And so I agree it can do both.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
It just so happens that doing both things operates to the benefit of the inner circle part.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Right. Totally, totally fair point.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Yeah, Democrats haven't really picked up on that just yet.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
This is one of those things where I feel like I'm not on the inner circle. I'm not in the inner network, so I don't have real insight into this because I'm screaming at them all the time to get with the program, and yet they're not listening. This inner circle operates very differently.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
No, even for adults. Because if the Supreme Court says laws that ban gender-affirming care don't discriminate on the basis of sex... and don't discriminate on the basis of gender identity, then laws that restrict that care for adults would also get super deferential review. So yeah, that case could be hugely significant. And then they have the religion in schools cases.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Right. Right. create, you know, an alternative media ecosystem so that they would receive their claps, you know, for doing the things that the conservative legal movement wanted them to do. And so that's also, you know, part of the story of the post-suder world.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Exactly. But yes, this is part of the tragedy of David Souter, who is an independent jurist who did really care about the facts. And in my view, is someone who I would describe as a real small C conservative judge, right? Like very incrementalist, didn't want to do real shockwaves through the law. And soon after he is appointed to the court, he decides not to overrule Roe versus Wade. Right.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
And that is what sets off these calls of no more suitors. And that spawned the kind of increase in the federal society's focus on identifying nominees who could be trusted, as well as creating this social incentive structure and professional incentive structure for them to do the, quote, right thing. I don't know why the call ended up being no more suitors rather than
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
no more Kennedys, because he did it too. And he had initially voted to overrule Roe and then changed his mind.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Yeah. And then, of course, they didn't they didn't scream about Justice O'Connor because she's a woman. And so, of course, she couldn't be counted on to do the right thing.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Yeah, so obviously I was not there during Planned Parenthood versus Casey. But I think he has real views about what the Supreme Court is for and is very sold on a perception of the court as this independent, neutral arbiter in certain ways. And so the pressure, the political movement to overrule Roe versus Wade, I think...
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
made him uncomfortable because this is not a man who was at all, right, like pro-choice or sympathetic to the arguments, you know, about Roe versus Wade. I mean, he wrote anti-abortion shibboleths into the U.S. reports when he said without evidence, he conceded there's no data to back this up. He said, of course, like most women come to regret their abortions.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
So it was really his sense of the court and his desire for it to be independent of politics that probably pushed him and Casey.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
So, there's the LGBTQ book case that you mentioned about whether parents can challenge a school district's decision to have storybooks with LGBT characters in them because that apparently triggers Sam Alito as well as other religious and social conservatives.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
It sounds like a fiction book to me.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Man, you're really going to make me pick one. OK, I'm going to pick two and I'm going to call it a tie.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Because sure, she wouldn't make a website celebrating a same-sex wedding. But guess what? She wouldn't make a website for a straight couple that also wanted to celebrate a same-sex wedding. And it's like, get the fuck out of town.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Exactly, exactly. And at the same time, they say, well, definitely not discrimination on the basis of sexual orientation. It is discrimination against religious and social conservatives, because that's really what equality is. So yeah, vibes all the way down, conservative grievance, etc., etc.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Then I'd say law of democracy cases like Shelby County versus Holder, where they just announced that the Voting Rights Act unconstitutionally discriminated against the former Confederacy, like turning a case involving racial discrimination into one where the former Confederacy is the real victim. Wow, that's real galaxy brain conservative grievance.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Thank you so much for having me. I appreciate it.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Oh, yeah, for sure, for sure. And also apparently Neil Gorsuch, who read Pride Puppy and had an utter fucking meltdown. So he looked at this book, which is a puppy at a- Okay. Okay.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Yeah. So there's that one. There's also a case about whether states have to create religious public charter schools. You heard that right? Whether states are required to create- Required to? Yeah.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Because Sam Alito, Brett Kavanaugh think it's actually unfair discrimination for a state to charter secular schools, but not religious ones. Yes, they are literally declaring unfair, unconstitutional, the Establishment Clause, which heretofore had prohibited religious schools, but- Pay no mind.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Exactly. I could go on. You know, any number of Trump cases might make their way back to the Supreme Court. You mentioned Alien Enemies Act and Obrego Garcia. Of course, the court is also hearing the big case about the birthright citizenship executive order, though technically the question they are asking is whether –
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Trial courts have the authority to block policies on a nationwide basis or instead have to limit their rulings just to the states in which they reside or the states that challenge a policy. So that's a big case. There's a case that could kneecap what remains of the Voting Rights Act and whether it actually protects against districting that dilutes the political power of racial minorities.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
So many big cases. And again, the Trump administration is just drowning all of this out.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Yeah. So if it ends up at the Supreme Court anytime soon, it's going to be on the shadow docket or emergency docket. That is, the Trump administration or plaintiffs might run up to the Supreme Court asking them to put on hold some lower court ruling or asking for an emergency injunction.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Those aren't cases the court heard argument in or full briefing that we're necessarily expecting a decision by June. That would be more on like a last minute basis.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
I mean, not necessarily. It really depends what happens in the lower courts because the court hasn't granted for full review any Alien Enemies Act cases. But of course, these cases are developing so quickly in the lower courts, it's super possible something ends up there.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Yeah. So the Supreme Court basically created this situation where individuals in different states, they all have to challenge their potential expulsions and detentions because the D.C. District Court, he had blocked the Alien Enemies Act nationwide. But the Supreme Court said, no, no, no, no, no, you can't do that. Every individual has to litigate their case in habeas class actions.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
And so those rulings are going to be limited to anyone who's detained in a particular district or state. And so, yes, people in some places are protected. People in others aren't. And that's why the Trump administration is trying to move people between jurisdictions to get them into places where they aren't protected. And yeah, it's just crazy.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Yeah, I think thus far, honestly, the Supreme Court has tried to avoid any big rulings and tried to defer saying anything that big about the Trump administration. Yes, Justice Barrett has occasionally joined with the Democratic appointees and Chief Justice Roberts on some matters. But even when the court has ruled against the Trump administration, they've given the administration authority.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
some wins and some wiggle room to work with, like in the Abrego-Garcia order, or even in the United States Agency for International Development case. They waited to release their ruling until after the government was under obligations to actually pay out the funds. So they have ruled against the Trump administration sometimes, but avoided doing so in pretty pointed or harsh ways.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Yeah, so it's a tough case because presidents have been granted, you know, substantial powers under the Economic Emergency Powers Act, as well as over foreign trade and tariffs more generally.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
And so I think the courts at that hearing were very nervous about trying to second guess the president's determinations about whether there was an unusual and extraordinary threat, even though Donald Trump's claims for why there is are just insane. Like the trade deficit has existed for a really long time. That's neither unusual nor extraordinary.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
But the court didn't seem to be comfortable with any kind of rule that the lawyers challenging the tariffs had offered for when courts could say something wasn't actually unusual or extraordinary. And then there are the host of doctrines and rules that the Republican appointees on the Supreme Court have come up with, like the major questions doctrine, the idea that
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
agencies can't do anything that big, you know, under statutes that are generally worded or the non-delegation doctrine, which is supposed to limit the extent to which Congress can confer authority to make regulations on non-legislative entities. The problem is the Republican justices have basically created these rules that gerrymandered in exceptions for the things Republicans wanted to do.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
You know, same old, same old. Everything is amazing. World is looking great.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
So the major questions doctrine might not apply to the president or the non-delegation doctrine might not restrict the president's ability with respect to foreign affairs and trade. And so it's unclear to what extent at all these doctrines that the Supreme Court invented are going to be much use in these cases.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Right. Exactly. Thanks, Jim Harbaugh. No.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Yeah. So I think there are kind of two different things going on. One is, I agree with you, there's always been this ridiculousness in the Supreme Court's insistence that they are going to somehow teach Congress to legislate.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Like, if only the Supreme Court justices undid Chevron and adopted this major questions doctrine, then of course Congress would just buck the fuck up and start passing more legislation. And it's like, how delusional Are you to think that you could single-handedly do this? Like, it's not about you.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
And yet they still cling to this fantasy world that just does not describe the reality that we are living in. And then, you know, they have also... while they have been skeptical of administrative agencies like the EPA, they have simultaneously been very pro-presidential power.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
And these things sit in uncomfortable tension with one another because, of course, the idea that an administrative agency can't do shit because it's not the legislature could also be said about the president. And yet, Doesn't seem to give them any pause. And one more thing just on Chevron. This is just like this perfect, like you were for it before you were against it.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
I mean, Chevron was originally this Republican supported doctrine because it was announced in a case involving the Reagan's EPA. And guess who was the head of the EPA at the time? Neil Gorsuch's mom. Oh, really? And Gorsuch Burford. Miss Gorsuch.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
I didn't know that. Yeah. And so I kind of write about this in the book as like part of Neil's villain origin story. Like his mom got chased out of the EPA and this apparently has given him a complex against the administrative state, which he's been out to get ever since. It was really wild in the oral argument about overruling Chevron.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
The lawyer who is challenging Chevron was asked, you know, do you want to keep the result in the Chevron case? And he literally said, well, with respect to Justice Gorsuch's mother's EPA, I think she got she got it right. Basically, it's just it's so wild, like how messy that entire scene is.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
Well, so yeah, she was deciding basically when power plants needed permits in order to construct new pollution-emitting devices under the statute. The statute has rules that's like, okay, if you make a new device, new stationary source, you need a permit.
The Bulwark Podcast
S2 Ep1042: Leah Litman and Andrew Egger: Grievance All the Way Down
And she said that doesn't include when an existing power plant makes new pollution-emitting devices within the power plant, as opposed to making an entirely new power plant. Yeah.